S. H. SHETH, J. ( 1 ) NEAR the town of Champaner in Halol taluka of Panchamahals District there is a hill called Pavagadh hill. On that hill are situate temples of Kalika Mataji, bhadrakali Mataji, Annapurna Mataji and budhia Darwajani Budhia Mataji. In the village of Champaner there. is a ranchhodji temple and also a Haveli. After the Bombay Public Trusts Act, 1950 came into force the petitioners filled in forms under the said Act sometime in 1952 for registration of two of the temples as public trusts. They did so under protest. That application related to the temples of Kalika Mataji and Bhadrakali mataji. On 6th June 1958 the Assistant charity Commissioner after holding the inquiry ordered the registration of all these five temples and Havali as public trust properties. The order was recorded on Application No. 6892 of 1952. It was the contention of the present respondents that all the aforesaid properties were proper ties of their private ownership. The Assistant Charity Commissioner by his aforesaid order rejected that contention of the respondents. ( 2 ) THE respondents appealed against that order to the Charity Commissioner. The Deputy Charity Commissioner decided the appeal on 23rd October 1959. By his order he set aside the order made by the Assistant Charity Commissioner and remanded the case to the Assistant charity Commissioner for a fresh inquiry. Upon remand the Assistant Charity commissioner heard the parties again and by his order dated 24th August 1960 declared all the aforesaid properties as public trust properties and ordered their registration. The respondents challenged that order in appeal which they filed before the Charity Commissioner who by his order dated 22nd May 1961 confirmed the order of the Assistant Charity commissioner and dismissed the appeal. ( 3 ) THE respondents filed Miscellaneous civil Application No. 19 of 1961 in the district Court at Godhra under Section 72 of the Bombay Public Trusts Act, 1950 and challenged the said order of the charity Commissioner. ( 4 ) THE learned District Judge, after hearing the parties allowed the application, set aside the order made by the Charity Commissioner and declared that all the aforesaid five temples and the Haveli were not public trust properties. He, therefore, directed that the entries made in respect of the said properties in the register of trusts be deleted. ( 4 ) THE learned District Judge, after hearing the parties allowed the application, set aside the order made by the Charity Commissioner and declared that all the aforesaid five temples and the Haveli were not public trust properties. He, therefore, directed that the entries made in respect of the said properties in the register of trusts be deleted. ( 5 ) IT is that order which is challenged by the Charity Commissioner in this appeal. ( 6 ) THERE are immovable properties which are attached to these temples. Lands bearing S. Nos. 154, 206, 232, 282, 263, 432 and 454 of village Alva in panchamahals District are owned by kalika Mataji, the presiding deity in kalika Mataji temple. Similarly, land bearing S. No. 45 of village Arod, another land bearing S. No. 44 of village tarkhanda and a third piece of land bearing S. No. 3 of village Champaner - all in Panchamahals District belong to kalika Mataji. So far as the deities in other four temples are concerned, there are no immovable properties owned by them. Haveli is a building not housing any deity. Mr. Chhaya, appearing for the charity Commissioner, has contended before us that all these five lemples and the Haveli constitute public trust properties within the meaning of that expression used in the Bombay Public trusts Act, 1950. According to him, the facts and circumstances of the case point to that conclusion and the learned District judge was in error in holding that they were not public trust properties. ( 7 ) IN order to examine the contention raised by Mr. Ghhaya, it is necessary to turn to the definitions of the expressions "public trust" and "temple". It is not in dispute before us that except the Haveli all others are temples as understood in popular parlance. The question which has been canvassed before us is whether they are temples within the meaning of that expression given in the said Act. Section 2 (13) defines "public Trust" in the following terms. "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, 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 1960. "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, 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 1960. " inter alia, a temple gives rise to a public trust within the meaning of that expression given in Section 2 (13 ). temple has been defined by Section 2 (17) in the following terms. " temple means a place by whatever designation known and used as 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. "it is this definition which has given rise to serious and prolonged controversy before us. A bare analysis of this definition brings out the following ingredients which, if satisfied, would lead to an inference that a particular property or place is a temple. The expression by whatever designation known clearly suggests that it is immaterial by what name a temple, understood in popular parlance, is called. Nothing, therefore, turns upon the name or style in which a particular place is described, A place, in order to be a temple, within its statutory meaning, must be, in our opinion, a place of public religious worship used as such place and must be either dedicated to the Hindu community or any section thereof as a place of public religions worship or it must be dedicated for the benefit of the Hindu community or any section thereof as a place of public religious worship or must be used as of right by the Hindu community or any section thereof as a place of public religious worship. In our opinion, this definition lays a great deal of emphasis on the place being a place of public religious worship and its dedication or its use as of right by the Hindu community or any section thereof. ( 8 ) THE contentions have been raised on the strength of this definition. The first contention relates to the controversy whether the tests laid down by this definition are cumulative or otherwise. The second contention relates to the scope and ambit of the expression "used as of right". ( 8 ) THE contentions have been raised on the strength of this definition. The first contention relates to the controversy whether the tests laid down by this definition are cumulative or otherwise. The second contention relates to the scope and ambit of the expression "used as of right". Before we examine the evidence we would like to deal with these two legal contentions first. The language of the definition leads us to take the view that the tests laid down therein are cumulative. It is not necessary, as for example, to prove dedication, express or implied. It is enough if it is proved that a place of public religious worship has been used as of right by the Hindu community or any section thereof as such place. Dedication may be express or implied. It can be inferred from circumstances as well. It may be a dedication to the Hindu community or any section thereof or it may be a dedication for the benefit of the Hindu community or any section thereof as a place of public religious worship. If dedication, express or implied, to or for the benefit of the Hindu community or any section thereof is not proved, it is enough if it has been proved that it has been used as of right by the Hindu community or any section thereof as a place of public religious worship. User is a question of fact capable of proof by evidence. Whether it has been used as of right is a matter of inference to be drawn from the facts and circumstances of the case. ( 9 ) IN the view which we are taking we are supported by a few decisions. In first Appeal No. 272 of 1960 decided by mr. Justice Bakshi and Mr. Justice Mody on 22nd April 1983 a similar view has been taken. This is what the learned judges have observed on the point in that judgment. "the necessary ingredients of Section 2 (17) are: (1) The place must be. In first Appeal No. 272 of 1960 decided by mr. Justice Bakshi and Mr. Justice Mody on 22nd April 1983 a similar view has been taken. This is what the learned judges have observed on the point in that judgment. "the necessary ingredients of Section 2 (17) are: (1) The place must be. used as a place of public religious worship; and (2) it must be dedicated to the Hindu community or any section thereof; or it must be dedicated for the benefit of the hindu community or any section thereof; or it must be used as of right by the hindu community or any section thereof; and (3) the dedication or use of the place must be as a place of public religious worship. The conditions laid down in these ingredients are cumulative and before an institution can be used to be a temple all these conditions have got to be cumulatively satisfied. "in First Appeal No. 20 of 1965 decided by Mr. Justice M. U. Shah and my learned brother on 12th/15th November 1971 the same questions arose. The following view has been expressed in that decision. "it may, therefore, be useful to closely analyse the provisions of Section 2 (17) of the Act. In order that a temple may be treated as a public trust within the meaning of the Act, the following requirements will have to be satisfied : (i) The place must be used as a place of public religious worship; and (ii) (a) it must have been dedicated to or for the benefit of the Hindu community or any section thereof; or (b) it must have been used as of right by the Hindu community or any section thereof as a place of public religious worship. In order, therefore, that a temple may be a public trust within the meaning of the Act, conditions (i) and (2) (a) or (i) and (ii) (b) set out above must be satisfied. In other words before a temple can be held to be a public trust, it must be shown that any one of the two sets of conditions is satisfied. "the definition of "temple" given in section 6 (20) of the Madras Hindu religious Endownments Act, 1959 is pari materia with the definition given in section 2 (17 ). In other words before a temple can be held to be a public trust, it must be shown that any one of the two sets of conditions is satisfied. "the definition of "temple" given in section 6 (20) of the Madras Hindu religious Endownments Act, 1959 is pari materia with the definition given in section 2 (17 ). In Pichai v. The commissioner for Hindu Religious and charitable Endowments (Administration Dept.) Madras and others, A. I. R. 1971 Madras 405 a similar question arose. While analysing the definition given in the said Madras Act this is what a Division Bench of the madras High Court has observed:"under Section 6, clause (2) 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 public religious worship. The definition of temple contemplates following conditions, namely temple means a place by whatever designations known used as a place of public religious worship (1) and dedicated to the Hindu community or any section thereof as a place of public religious worship; or (2) and dedicated for the benefit of the Hindu community or any section thereof as a place of public religious worship; or (3) and used as. of right by the Hindu community or any section thereof as a place of religious worship. ""the definition of temple is not comprehensive as to include any place irrespective of installation of ideals or a building or a tower, dwajasthambham or a stupi. "these three decisions support the view which we are taking. The language in which the definition of the expression temple has been couched leaves no scope for any other alternative construction. We are, therefore, of the opinion that a place, in order to be a temple, must have been used as a place of public religious worship and dedicated to or for the benefit of the Hindu community or any section thereof as a place of public religious worship or used as of right by the Hindu community or any section thereof as a place of public religious worship. Mr. Oza has tried to argue that the expression used as of right suggests implied dedication. User as of right may in a given case amount to implied dedication. Mr. Oza has tried to argue that the expression used as of right suggests implied dedication. User as of right may in a given case amount to implied dedication. But it does not necessarily mean implied dedication. If there is user as of right, it is enough to satisfy one of the principal ingredients of the definition of temple given in Section 2 (17 ). ( 10 ) THE next question relates to the scope and ambit of the expression used as of right. Several decisions have been cited before us in order to show what circumstances can be taken into account and what is their value. Mr. Chhaya has invited our attention to the decision of the Supreme Court in Deoki Nandan v. Murlidhar and Others, A. I. R. 1957 S. C. 133. The question which arose in that case was whether the Thakurdwara of sri Radhakrishnaji in village Bhadesia in the District of Sitapur, was a private temple or a public one. The facts of the case show that the Thakurdwara was constructed by one Sheo Ghulam during 1914-1916 and the idol of Shri radhakrishnaji was ceremoniously installed therein by him. It was he who had been managing the temple and its affairs until 1928 when he died issueless. Before he died he had executed a will whereby he had bequeathed all his lands to the Thakur. He had left surviving him one widow who succeeded him in terms of the will, so far as the management of the Thakurdwara was concerned. She died in 1933. Thereafter the nephew of sheo Ghulain got into possession of. the properties as manager of the endowment in accordance with the provisions of the will of Sheo Ghulam. Thereafter, the appellant in that case moved the District court of Sitapur on the allegation that the nephew of Sheo Ghulam had been mismanaging the temple and denying the rights of the public therein. It was an action instituted under the Religious and charitable Endowments Act XIV of 1920. The Court declined to interfere with the management, of the nephew of Sheo ghulam on the ground that the endowment was private. Thereafter an application was made to the Advocate general for sanction to institute a suit under Section 92 of the Code of Civil procedure. The Advocate General refused to grant sanction. The Court declined to interfere with the management, of the nephew of Sheo ghulam on the ground that the endowment was private. Thereafter an application was made to the Advocate general for sanction to institute a suit under Section 92 of the Code of Civil procedure. The Advocate General refused to grant sanction. Thereafter, the appellant in that case, filed a suit out of which the said appeal before the Supreme court arose for a declaration that the thakurdwara has been a public temple in which all the Hindus have a right to worship, The suit was contested by the nephew of Sheo Ghulam who claimed that "the Thakurdwara and the idols were private", and that "the general public had no right to make any interference". The trial Court held that the Thakurdwara was built by Sheo Ghulam for worship by his family and that it was a private temple. Therefore, it dismissed the suit, on appeal, the District Court recorded the same conclusion and dismissed the appeal. That decision was affirmed in second Appeal by the Chief Court of oudh. An appeal against that decision of the Chief Court of Oudh was carried to the Supreme Court on a certificate granted by the Chief Court of Oudh under section 109 (c) of the Code of Civil procedure. The aforesaid decision has been recorded by the Supreme Court in that appeal. In paragraphs 5 and 6 of the report the Supreme Court has laid down certain tests for determining whether a temple is a private temple or a public temple. The distinction between a private temple and a public temple 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. Therefore, as observed by the Supreme Court, a religious endowments must be held to be Private or Public, according as the beneficiaries thereunder are specific persons or the general public or sections thereof. The next principle which the Supreme Court has laid down is that under the Hindu law an idol is a juristic person capable of holding property and the properties endowed for the institution vest in it. The next principle which the Supreme Court has laid down is that under the Hindu law an idol is a juristic person capable of holding property and the properties endowed for the institution vest in it. However, it does not follow therefrom that the idol is the beneficial owner of the endowment. Though such a notion was in force at one time, it has been further laid down by the Supreme Court, it is now established beyond all controversy that there is not the true position. It is only in an ideal sense that the idol is the owner of the endowed properties because it cannot make use of, there it cannot enjoy them or dispose of them; or even protect them. In other words, an idol can have no beneficial interest in the endowment. Having examined the Sanskrit text bearing on the question, the Supreme Court has further laid down that the Gods have no beneficial enjoyment of the properties, and that they can be described as their owners only in a figurative sense and that the true purpose of and gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship. In other words, a gift to an idol is not a transfer to a sentient being but it is a dedication of properties to an idol in the sense that the owner of the properties has abandoned his dominion over them for the purpose of their being appropriated to other specific purposes. Therefore, the true beneficiaries of religious endowments are not the idols but the worshippers, and the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers. Viewed in that light, when a controversy of this type arises, the cardinal point which a Court of law has to decide is whether it was the intention of the founder that specified individuals would have the right of worship at the shrine, or the general public or any specified portion thereof. If the property is dedicated for the worship of a family idol, it is a private and not a public endowment, because the persons who are entitled to worship at the shrine of the deity can only be the members of the family which is an ascertained group of individuals. If the property is dedicated for the worship of a family idol, it is a private and not a public endowment, because the persons who are entitled to worship at the shrine of the deity can only be the members of the family which is an ascertained group of individuals. Next, where the beneficiaries are not members of a family or specified individuals, the endowment can only be regarded as public, intended to benefit the general body of worshippers. We find in this decision one of the principal tests to be applied for determining whether the temples in question in the instant case are public or private temples. Relying upon the evidence led in this case, Mr. Chhaya has argued that the members of the Hindu community have been worshipping at these shrines. Placing a limited and narrow connotation on the expression worship Mr. Oza has contended that the right to worship in those shrines has been confined to the respondents and their descendants and that in the past it was exercised by their ancestors. ( 11 ) IN Narayan Bhagwantrao Gosavi balajiwale v. Gopal Vinayak Gosavi and Others, A. I. R. 1960 Supreme Court 100 the question was whether Shri Balaji temple at Nasik has been a public or a private temple. One of the circumstances which was canvassed in support of the proposition that it was a public temple was the payment of cash allowances (sic ). It was also contended that the deity in shri. Balaji temple was a family deity capable of being moved from one place to another and that it was in fact so moved. In that case, the Supreme Court expressed that opinion that no authority was cited before them to show that an idol cannot be removed at all from the place where it is installed even though it might have been installed in a removable form. If a deity has been installed in a removable form and if it is shifted from the place of its original installation for periodic processions or for a temporary purpose and is brought back to its place, it does not lead to the inference that it is a private temple. Payment of cash allowances from public funds is one of the circumstances which can be taken into account for deciding the controversy whether a temple has been a public temple or a private temple. Payment of cash allowances from public funds is one of the circumstances which can be taken into account for deciding the controversy whether a temple has been a public temple or a private temple. ( 12 ) IN Goswami Shri Mahalaxmi vahuji v. Shah Ranchhoddas Kalidas (Deed) and Others, A. I. R. 1970 Supreme court 2025 the question which arose was whether a Haveli (temple) at Nadiad of shri Gokulnathji and the properties attached there have been the properties of public religious trust created by the followers of Vallabh cult residing at nadiad. One of the contentions raised in that case was that though members of the public were entering the temple they were doing so only after the Maharaj had finished his worship. Answering this contention it has been laid down by the supreme Court that that circumstance is of no consequences because each sect or each temple had its own customs. The said usage pleaded in support of the fact that it was a private temple and not inconsistent with the temple being a public temple. If entry to members of public or to a section thereof is denied on a particular occasion, it is more an act of maintaining discipline within the precincts of a temple than an indication of its being a private temple. The second circumstance which was relied upon in support of the proposition that it was a private temple and that the sale proceeds of Nagarwada Haveli was credited to the account of the Maharaj. It was hold in that case that though the amount was initially credited to the account of the maharaj it was transferred at a subsquent stage to the account of the temple by means of adjustment entries. The supreme Court has thereafter proceeded to observe that though most of the Hindu public temple might have been founded as public temples, there are instances of private temple having in course of time become public temples. Some of the private temples acquired great deal of religious reputation either because of the eminence of its founder or because of other circumstances. They, therefore, attracted large number of devotees. Under such circumstances in course of time they gradually became public temples. Public temples are generally built or raised by the public and deity is installed to enable the members of the public or a section thereof to offer worship. They, therefore, attracted large number of devotees. Under such circumstances in course of time they gradually became public temples. Public temples are generally built or raised by the public and deity is installed to enable the members of the public or a section thereof to offer worship. In such a case the temple would clearly be a public temple. If a temple is proved to have originated as a public temple, nothing more is necessary to be proved to show that it is a public temple. If a temple is proved to have originated as a private temple or if its origin is unknown or tost in antiquity, then there must be proof to show that it is being used as a public temple. In the latter type of cases the true character of the particular temple is to be decided on the basis of various circumstances. The Supreme Court has laid down the following five circunstances. " (1) Is the temple bult in such imposing manner that it may prima facie appear to be a public temple ? (2) Are the members of the public entitled to worship in that temple as of right ? (3) Are the temple expenses not from the contributions made by the public? (4) Whether the sevas and utsavas conducted in the temple are those usually conducted in public temples ? (5) Have the management as well as the devotees been treating that temple as a public temple?"dealing with the question relating to the appearance of a temple, it has been laid down by the Supreme Court that it is a relevant circumstances but not a decisive one. The circumstance that the public or a section thereof have been regularly worshipping in the temple as a matter of course and that they can take part in the festival and ceremonies conducted in that temple apparently as a matter of right is a strong piece of evidence to establish the public character of a temple. If votive offerings are being made by the public in the usual course and if the expenses of the temple are not by public contribution, it is safe to presume that the temple in question is a public temple. Having thus observed this is how the Supreme Court has summarised the proposition. If votive offerings are being made by the public in the usual course and if the expenses of the temple are not by public contribution, it is safe to presume that the temple in question is a public temple. Having thus observed this is how the Supreme Court has summarised the proposition. "in brief the origin of the temple, the manner in which its affairs are managed, the nature and extent of gifts received by it, rights exercised by the devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the character of the temple are factors that go to establish whether a temple is a public temple or a private temple. "the manner in which the temple endowments have been dealt with and the public user of the temple are two of the cardinal tests to be applied for determining whether the temple is a private temple or a public temple. In that decision the Supreme Court has relied upon its earlier decision in Deoki Nandan v. Murlidhar (supra ). They have also relied upon another earlier decision of theirs in Narayan Bhagwant Rao Gosavi balajiwale v. Gopal Vinayak Gosavi (supra) and observed that "the vastness of the temple, the mode of its construction, the long user of the public as of right, grant of land and cash by the Ruler taken along with other relevant factors in that case were consistent only with the public nature of the temple. " in paragraph 21 of the report it has been further observed that the existence of two sets of account goes to indicate that the temple is an entity different from those that maintains it. Applying the aforesaid test the final conclusion recorded by the supreme Court in regard to the temple in question in that case was as follows :"there is clear, consistent and reliable evidence to show that Vallabh sampradaees have been worshipping in the suit temple as of right. There is also evidence to show that the temple has all along been primarily maintained from the contributions made by the devotees belonging to the Vallabha School. The suit temple appears to be an important temple attracting a large number of devotees. Utsavas and other festivals are performed in that temple in a reasonable grand scale. There is also evidence to show that the temple has all along been primarily maintained from the contributions made by the devotees belonging to the Vallabha School. The suit temple appears to be an important temple attracting a large number of devotees. Utsavas and other festivals are performed in that temple in a reasonable grand scale. The devotees as well as the maharaj were treating that temple as a public temple. From the facts proved we have no hesitation in agreeing with the high Court that the temple in question is a public temple. " ( 13 ) IN The Bihar State Board of religious Trust. (Patna) v. Mahanth Sri biseshvuar Das, A. I. R. 1971 Supreme court 2057 the question which arose was whether the estate known as Kamlabari asthal consisting of a temple, buildings and lands was a public religious trust. Dealing with the question of public user it has been observed by the Supreme court in that decision that its value as evidence of dedication depends on the circumstances which give strength to the inference that the user wag as of right. The next principle which the Supreme court has laid down is that whether the grant was for the benefit of the public or a section of it, i. e. an unascertained classer for the benefit of the grantee himself or for class of ascertained individuals is to be found out by the Court. An inference can also be drawn from the usage and customs of the institution or from the mode in which its properties have been dealt with as also other established circumstances. It was a case decided under the Bihar Hindu Religious trusts Act, 1951. An inference can also be drawn from the usage and customs of the institution or from the mode in which its properties have been dealt with as also other established circumstances. It was a case decided under the Bihar Hindu Religious trusts Act, 1951. While deciding the action out of which the appeal in that case arose before the Supreme Court, the trial court took into account the following circumstances:" (1) that the mahants were bairagia, i. e. celibates, which fact raised the presumption that they held properties on behalf of the asthal to which their lives were entirely devoted: (2) that Mahant Gaibi Ramdasji had set up a sampradaya which attratcted a large following, that therefore, the temple built by him was for the benefit of his followers and for spreading and propagating the doctrine of that sampradaya; (3) that from these facts the presumption arose that he had dedicated the temple and the properties to the public or a section thereof; (4) that the evidence showed that sadhus, fakirs and abhyagata were entertained at the temple, that the income of the properties was spent on puja and other religious activities and for festivals; consequently, the presumption was that the properties were subject to religious and charitable purposes; (5) that the time of the installation of the deities in the temple Pran Pratistha and other ceremonies must have been performed which meant that the temple and the properties were declared to have been dedicated to the public; (6) that the deeds of appointment of successors executed by the mahants described the mahants as asthaldharis and the properties as appertaining to the asthal; and (7) that though revenue records described the mahants as proprietors of these properties, they had to be read in the light of the facts aforestated. "on these premises the Trial Court held that the temple and the properties were trust properties of a public nature for religious and charitable purposes. The matter went in appeal to the High Court. The High Court revised the judgment of the Trial Judge and decreed the suit. The circumstances which the High Court took into account have been summarized by the Supreme Court in the following terms:"1. that the temple was constructed by gaihi Ramdasji and it was he who installed the deities therein;2. The matter went in appeal to the High Court. The High Court revised the judgment of the Trial Judge and decreed the suit. The circumstances which the High Court took into account have been summarized by the Supreme Court in the following terms:"1. that the temple was constructed by gaihi Ramdasji and it was he who installed the deities therein;2. that he was succeeded to the mahantship by his chela, and, thereafter succession to the mahantship had been from guru to chela;3. that the appointment of a successor has been all throughout from guru to chela, the reigning mahant appointing or nominating his successor from among his chelas and the members of the public have had at no time any voice in the selection or nomination;4. that the properties have always been recorded in the names of the Mahants as proprietors and not in the name of the deities in the D registers, khewats and khatians;5. that the Mahants have been in possession and management of the ashlal and the properties all throughout;6. that the Mahants acquired properties from time to time in their own names as proprietors and never in the names of the deities or the asthal, without any objection at any time from anyone and dealt with some of them through deeds of sale, mortgages, leases, etc. "dealing with these aspects it has been first observed by the Supreme Court that if originally the property was acquired by a mahant, the fact of its descent subsquently from guru to chela did not lead to the conclusion that it had lost its secular character. Where, however, a preperty is dedicated to an idol for the object of performing its puja and other necessary ceremonies the person managing such property is only a shebait, idol being a juristic person in Hindu Law capable of holding such property. Provision for the service of the sadhus, occasional guests and wayfarers does not render a trust for an idol into a trust for public purposes because were the main purpose of the trust is to make provision for the due worship of an idol and performance of its seva puja and other ceremonies, the feeding of sadhus and giving hospitality to wayfarers are inevitable. They are regarded as duties forming part of the due worship of a particular deily. They are regarded as duties forming part of the due worship of a particular deily. Therefore, evidence that sadhus and other persons visiting the temple were given food and shelter is not by itself indicative of the temple being a public temple or its properties being subject to a public trust. Dealing with the question of celebration of Hindu festivals when members of the public used to attend the temple and give offerings and when they were admitted to the temple for darshan and worship it has been observed by the Supreme Court that this circumstance is also not indicating ofthe temple being one for the benefit of the public because the celebration of festivals is, according to Hindu belief, part and parcel of the puja of the deity. Such festivals are celebrated in family and other private temples also. The fact that members of the public used to come to the temple without any hindrance al. cc does not necessarily mean that the temple is a public temple because members of the public do attend private temples. It is against Hindu sentiments to turn away persons who came to do worship and have darshan. The mere fact, therefore, that no instance had occurred when persons from the public were asked to go away or the absence of proof that they were allowed on permission or invitation only cannot be conclusive of the temple being one in which the public have by user acquired interest. ( 14 ) THE principle laid down by the Privy council in Babu Bhagwan Din and others v. Din Bar Saroop and Others. 67 Indian Appeals I has been relied upon by the Supreme Court is that dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference, if made from the fact of user by the public, is hazardous because it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away and, as worship generally implies offerings of some kind, it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. Therefore, according to the Supreme court, the mere fact of free admission to the members of the public does not necessarily lead to an inference of dedication to the public. The valus of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. In that case it was an asthal, a monastic institution founded for the maintenance and spread of a particular sampradaya or cult. The following passage from that decision is quite opposite. "a mutt can be dedicated for the use of ascetics generally or for the ascetics of a particular sect or cult, in which case it would be a public institution. Mutts have generally sadavrats, i. e. , arrangements for giving food and shelter to wayfarers and ascetics attached to them. They may have temples to which the public is allowed access. Such circumstances might indicate the public character of the institution. But it is not impossible to have a private mutt, where the endowment is not intended to confer benefit upon the public generally or even upon the members of a particular religious sect or order. Examples do occur where the founder may grant property to his spiritual preceptor and his disciples in succession with a view to maintain one particular spiritual family and for perpetuation of certain rights and ceremonies which are deemed to be conducive to that spiritual welfare of the founder and his family. In such cases it would be the grantor and his descendants who are the only person interested in seeing that the institution is kept up for their benefit. Even if a few ascetics are fed and given shelter, such a purpose is not to be deemed an independent charity in which the public or a section of it has an interest. Such charities, as already stated earlier, appertain to a private debuttor also. "where there is a grant the Court has to find cut either from the grant itself or from the circumstances of the case whether the grant was for the benefit of the public or a section of it, i. e. an unascertained class, or for the benefit of the grantee himself or for a class of ascertained individuals. "where there is a grant the Court has to find cut either from the grant itself or from the circumstances of the case whether the grant was for the benefit of the public or a section of it, i. e. an unascertained class, or for the benefit of the grantee himself or for a class of ascertained individuals. An inference can also be drawn from the usage and custom of the institution or from the mode in which its properties have been dealt with as also other established circumstances. ( 15 ) IN First Appeal No. 692 of 194 decided by Mr. Justice M. N. Shah and my learned Brother on 5th November 1971 the following circumstances were relied upon for the purpose of holding that the temple in question was a public temple. (1)THAT the accounts of the temple were separately maintained. (2) That no obstruction was caused to the members of the public visiting the temple. (3) That there was a recurring grant by the State to maintain it. (4) That it was constructed out of the funds of the State. (5) That Bhels (offerings) which were received at the temple were not retained by the Ruler who claimed it to be his private property but were sent to the acharya at Ahmedabad. (6) That it was situate on a public road and not in Darbargadh. (7) That the temple buildings and other properties attached to it were standing in the name of the deity. (8) That there was no evidence of exclusion of the members of the public from access to the temple on any occasion. ( 16 ) IN First Appeal No. 319 of 1950 decided by Mr. Justice Bhagwati (as he then was) and Mr. Justice J. B. Mehta on 10th July 1964 the question which arose was whether the temple of ramchandra and Hanuman situate in the city of Baroda was a private temple or a public one. The temple was situate in the inner room of a house. The house in one of the rooms of which the temple was situate was held to be the private property of the ancestors of the appellant in that case. The temple was situate in the inner room of a house. The house in one of the rooms of which the temple was situate was held to be the private property of the ancestors of the appellant in that case. The question, therefore, which was decided in that case was whether in course of time the temple situate in one of the rooms of that house was so dealt with as to be dedicated for the purpose of the public as a public temple. The first circumstance relied upon by the Charity Commissioner in that case was that the memberss of the public used to visit the temple for having darshan of the idols as a matter of right. On evidence this Court negatived that contention and held that the members of the public had not been visiting that temple for the purpose of having darshan of the idols at least during the past 25 years. It has been further observed in that decision that public user of a temple does not necessarily lead to the inference that the temple is dedicated to the public. This Court also found that the temple used to be closed by the appellant in that case and members of his family whenever they went out of Baroda. It, therefore, held that the members of the public were denied access to the tempe at the sweet-will of the appellant and his predecessors and that, therefore, the temple was not dedicated to the public there was no evidence in that case to show that the appellant at any time held out or represented to the public that the temple was a public temple. The evidence in that case showed that no income was received by way of offerings from the public, that no festivals were held in the temple and that no funds or subscriptions were collected for the purpose of maintaining the temple and the worship of the idols. The evidence in that case further showed that there was no interference, by the public with the management of the temple or with the worship of the idols and that the right to worship was confined only to its founders and his descendants. In other words, the worship of the idols went from heir to heir and not from Chela to Chela. In other words, the worship of the idols went from heir to heir and not from Chela to Chela. The house stood in the name of the appellant and his ancestore, the appellant and his ancesters paid the tax on the house and the house was known to the members of the public as a privately owned property. One more circumstance which the Court took into account was that the temple was situate in one of the inner rooms of the house. Reliance was placed on behalf of the Charity commissioner in that case upon the fact that the founder of the temple had received cash allowance from the Ruler of Baroda State. Much weight was not attached to that circumstances because the Ruler of Baroda State was an absolute sovereign and it was open to him to give cash allowance to anyone he liked irrespective of the fact whether he was a manager or Pujari of a private temple or of a public temple and also because the evidence did not show whether there were any conditions attached to the grant of the cash allowance. The description of the founder of that temple, Kalyandas, in the revenue records that Kalyandas was "the present Manager of Shri Ramji temple" was held to be of no consequence in the facts and circumstances of that case. The application made by Kalyandas, the founder, to the Suba, Devasthan Branch, baroda for sanction to incur certain expenses for repairs to the house was also brushed aside in light of other circumstances militating against its public character. The last circumstance relied upon by the Charity Commissioner in that case was that there was a Barkhali land in village Amla which was standing in the name of "the Pujari of Radhakrishana temple". According to the Charity commissioner it showed that the land belonged to the temple and that the temple was a public temple. No inference was drawn from that circumstance in favour of the Charity Commissioner. In light of the aforesaid circumstances it was held by the Division Bench in that case that the temple in question there was a private temple. ( 17 ) MR. Oza has invited our attention in this behalf to some of the decisions. The first decision is of the Privy Council in Parma Nand v. Nihal Chand, 40 bombay Law Reporter, 907. ( 17 ) MR. Oza has invited our attention in this behalf to some of the decisions. The first decision is of the Privy Council in Parma Nand v. Nihal Chand, 40 bombay Law Reporter, 907. The question which arose in that case was whether a building described as Baghichi thakurdwara or Gurudwara Baghichi in the town of Gujranwala in Punjab together with the shops and other properties attached to it was a trust for a public purpose of a charitable or religious nature. The principles which the privy Council laid down for the purpose of resolvimg the controversy were as follows:1. The author or authors of the trust must be ascertained, and the intention to create a trust must be indicated by words or acts with reasonable certainly. 2. The purpose of the trust, the trust property, and the beneficiaries must be indicated so as to enable the Court to administer the trust if required. 3. The descent of property from a guru to his chela does not warrant a presumption that it is religious property. 4. The burden of proving that the property in the possession of a person is subject to a trust created for public purpose of a charitable or religious nature is on the person who alleges it. Mr. Oza has relied upon the last proposition in support of his contention that in the instant case the burden lies upon the charity Commissioner to show that the temples in question are public trust properties. We have before us the entire evidence, we have to reach our conclusion on that basis. The question of burden of proof in the facts and circumstances of this case is, therefore, purely academic. However, the proposition advanced by mr. Oza is a correct proposition. Therefore, where there is no evidence to show whether a particular temple is a public trust or not the Charity commissioner must fail. In that Privy council case there was an express dedication. Express dedication is not the only test under Section 2 (17) of the bombay Public Trusts Act, 1950. Therefore, this decision has very limited applicability to the facts of the present case. ( 18 ) THE next decision cited before us is in Babu Bhagwan Din v. Gir Har saroop, 42 Bombay Law Reporter 190. It is a decision of the Privy Council. Therefore, this decision has very limited applicability to the facts of the present case. ( 18 ) THE next decision cited before us is in Babu Bhagwan Din v. Gir Har saroop, 42 Bombay Law Reporter 190. It is a decision of the Privy Council. In that case, Asaf-ud-daula, the then king of Oudh had by a Sanad granted certain lands and a house to one Daryao Gir goshain. Daryao Gir and his successors-in title remained in undisturbed possession of the property in which there was an idol called idol bhaironji receiving the rents and profits from the shops and dwelling houses built from time to time on the land and the offerings made in cash and kinds to the idol for about 150 years without let or hindrance. Sometime in 1843 the predecessors-in-title of the respondents to that appeal instituted a suit against certain washermen for the purpose of evicting them from the property. That suit was decided in favour of those who had instituted it. It was held in that suit that by virtue of the grant from asaf-ud-daula those who had instituted the suit were entitled to possession of the land and to evict the defendants to that suit. In 1930 the appellants in that appeal filed an application under Section 3 of the Charitable and Religious Trusts act, 1920, alleging that the land and house together with the temple dedicated to bhaironji formed a public and religious trust for Hindus. The other co-sharers and descendants of Daryao Gir were not made parties to it. The District Judge held that the temple, the land and the houses were subject to a public and religious trust and that the endowment fell within the scope of the Religious and charitable Trusts Act, 1920. He construed the grant from Asaf-ud-daula as consistent with an intention to grant the land to Daryao Gir as a trustee of the temple. Thereafter there were certain other litigations in respect of that property in that suit was subject to a trust for public and charitable purposes and whether the Religious and Charitable trusts Act, 1920 applied. In appeal the appellate Court held that the property in question there was the private and joint family property and that it did not constitute a charitable and religious trust of a public nature governed by Act XIV of 1920. In appeal the appellate Court held that the property in question there was the private and joint family property and that it did not constitute a charitable and religious trust of a public nature governed by Act XIV of 1920. The plea of res judicata which was raised was rejected. The matter ultimately went to the Privy Council. The privy Council has held in that decision that dedication need not necessarily be inferred from public user. There was evidence to show that a large number of Hindus had been resorting to the temple for worship and Darshan without let or hindrance. Melas were also held and had been annual functions. For holding such melas public subscriptions were collected. A part of the moneys thus collected had been spent on white-washing and repairing the temple. The temple and its goshains profited from the increased resort by members of the Hindu community to the temple during the melas. It was contended that the temple was held out to the public as a public temple. The Privy Council, concurring with the Oudh Chief Court, held that the grant by Asaf-ud-daula in 1781 was not a grant to the idol or an endowment of a temple or a gift made by way of trust for a public religious purpose. It was a grant to Daryao Gir and his heirs in perpetuity. They also expressed the view that if an endowment for an idol was intended it would have been expressed very differently. On the contrary, the grant in terms stated that it was made to Daryao Gir and his descendant after decendant and his generation after generation. The Privy Council also expressed the view that in course of years the temple which is dealt with in a particular manner may be dedicated for the benefit of the Hindu Public as a public temple. Such dedication required to be proved. The Privy Council was also of the view that the family of Daryao Gir had treated the temple as family property, dividing the various forms of profit whether offerings or rents, closing it so as to exclude the public from worship when marriage or other ceremonies required the attendence of the members of the family at some other place. They also erected samadhis to honour to their dead. They also erected samadhis to honour to their dead. Merely because the Hindus who were willing to worship they were never turned away and merely because the deity had acquired considerable popularity among Hindus of the locality or among persons resorting to the annual Mela, the privy Council was not inclined to take the view that the temple was a public trust. It has been further observed in that decision that worshippers are naturally welcome to a temple because of the offerings they bring and the repute they give to the idol. They do not have to be turned away on pain of forfeiture of the temple property as having become property belonging to a public trust. Facts and circumstances, in order to be accepted as sufficient proof of dedication of a temple as a public temple, must be considered in their historical setting and dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference if made from the fact pf user by the public is hazardous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away, and as worship generally implies offerings of some kind, it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. The value of public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. This decision brings out certain features which are distinct in themselves and which distinguish it from the present case. In that case there was a specific grant to Daryao Gir and his heirs in perpetuity. That grant was considered by the Privy Council in light of the facts and circumstances of the case. Not only the family had treated the temple as a private property but when the entire family moved out of the place where the temple was situate, they were closing the temple to the members of the public. That grant was considered by the Privy Council in light of the facts and circumstances of the case. Not only the family had treated the temple as a private property but when the entire family moved out of the place where the temple was situate, they were closing the temple to the members of the public. Considering the grant to Daryao Gir as a private grant the Privy Council held that much weight could not be attached to the offerings made by the members of the Hindu Community who visited that temple or to non-interference by the members of the Hindu community with its management. We do not have in the instant case any evidence of grant. It is, therefore, difficult to apply to the facts to the instance case the principle laid down by the Privy Council in that decision. ( 19 ) THE next decision which has been cited before us in Amardas Mangaldas sadhu v. Harmanbhai Jethabhai Palel, 44 Bombay Law Reporter 643. The principles which the High Court of bombay has laid down in that case are that family idols may be endowed with property without any question of a public trust arising. The same may be true of some idols which are not family idols. The fact that worshippers are allowed to visit a temple does not necessarily warrant the inference that the temple is a public religious trust. The presumption that a temple is dedicated to religious uses arising from the descent of its property from chela to chela is "limited to cases where the religious persons concerned are grihasthas and not celibates, so that there may be a conflict between the chela and the natural heirs of the Guru. A Sanyasi s heir is always his chela. " In that case it was a temple of Shri Gopalji Maharaj situate at village Boriavi in Kaira District around which the controversy had centred. In course of its judgment the high Court of Bombay has observed that celebrations of festivals and performance of ceremonies and offerings of small coins by worshippers to the deity do not alter the character of a trust from private to public. Offer of small coins or payments of cash allowance is consistent with private trust. The relevant factor which requires to be considered is how the property had been dealt with by these who were in its management. Offer of small coins or payments of cash allowance is consistent with private trust. The relevant factor which requires to be considered is how the property had been dealt with by these who were in its management. ( 20 ) THE next decision is in the case of The Municipal Board, Manglaur v. Mahadeoji Maharaj, A. I. R. 1965 supreme Court 1147. The question which arose in that case related to the dedication of a highway to the public and the supreme Court observed in that behalf that inference of dedication of a highway to the public could not be drawn from its long user by the public. Dedication of a highway to the public and dedication of a temple to the members of the Hindu community are altogether different things. It is difficult to adopt the analogy of dedication of highway to the public in order to judge or decide upon the dedication of a temple to the members of the Hindu community. . ( 21 ) THE last decision which Mr. Oza had cited before us is in T. D. Gopalan v. The Commissioner of Hindu Religious and Charitable Endowments, Madras, a. I. R. 1978 Supreme Court 1716. In that case a declaration was sought that the suit Mandapam was a private Mandapam, i. e. family property of Thoguluve thirumalier and was not a temple covered by the provisions of the Madras Hindu religious Endowments Act, 1927. It was contended in that case that the origin of the temple had been proved to be private. The next argument which was raised was that in Madras there was the saurashtra community which had migrated from Saurashtra to Madras centuries ago and they had a tradition of maintaining private temples. After having considered the decision of the privy Council in Babu Bhagwan Din (supra) and their own earlier decision in the case of Goswami Shri Mahalaxmi vahuji (supra) the Supreme Court observed as under :"the circumstances that the public or a section thereof had been regularly worshipping in the temple as a matter of course and they could take part in the festivals and ceremonies conducted in that temple apparently as a matter of right was a strong piece of evidence to establish its public character. If votive offerings were being made by the public and the expenses were being not by public contribution, it would be safe to presume that the temple was public. In short the origin of the temple, the manner in which its affairs were managed, the nature and extent of the gifts received by it, rights exercised by devotees in regard to worship therein, the consciousness of the devotees themselves as to the public character of the temple were factors that went to establish whether a temple was public or private. " ( 22 ) IN light of the principles which emerge from all these decisions we now proceed to examine the evidence in this case. Before we do so, we would like to state that practically all evidence relates to the temple of Kalika Mataji. There is very little evidence which has a bearing on other temples. We, therefore, first proceed to discuss the evidence relating to the temple of Kalika Mataji. This evidence is clearly divisible in two parts. One part relates to the public character of the temple. Another tends to indicate in the contrary direction. Let us first deal with the evidence pointing to the public character of the temple of Kalika Mataji. In the first instance it must be stated that there is no direct evidence of its dedication to or for the benefit of the hindu community or a section thereof. We have to consider a large number of circumstances in order to find out whether they prove the public user of this temple as of right as a place of public religious worship within the meaning of the definition of temple given in Section 2 (17) of the Bombay Public Trusts Act, 1950. Mr. Chhaya has invited our attention to the Gazatteer of the Bombay presidency, Vol. III (Kaira and Panch mahals ). It was published in 1879 under the orders of the then Government of bombay. The first question which has been raised by Mr. Oza relates to the admissibility of this Gazetteer. Mr. Chhaya has invited our attention to the Gazatteer of the Bombay presidency, Vol. III (Kaira and Panch mahals ). It was published in 1879 under the orders of the then Government of bombay. The first question which has been raised by Mr. Oza relates to the admissibility of this Gazetteer. Section 35 of the Evidence Act provides that"an entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact. "section 57 of the evidence Act, inter alia, provides that"in all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference. "we have no doubt in our mind that the Gazetteer is a book of reference which records, amongst other things, the past fact relating to the temple of Kalika mataji. Section 81 of the Evidence Act requires the court to presume the genuineness of every document purporting to be a document directed by any law to be kept by any person. In light of the provisions of these three sections we have no doubt in our mind that the said Gazetteer complied by the then Government of Bombay officially is admissible in evidence. ( 23 ) IN Mahant Shri Srinivas Ramanuj das v. Surianarayan Das and Another, a. I. R. 1967 Supreme Court 256 the supreme Court has held that the statements contained in the Gazetteer can be taken into account for the purpose of discovering historical material and also for the purpose of discovering the practice followed by the math and its head. As laid down by the Supreme Court in that decision, Gazetteer can be consulted on matters of public history. ( 24 ) IN Martand Rao v. Malhar Rao, air 1928 Privy Council 10 it has been laid down that official reports regarding the nature of any estate are valuable and in many cases the best evidence of facts stated therein. As laid down by the Supreme Court in that decision, Gazetteer can be consulted on matters of public history. ( 24 ) IN Martand Rao v. Malhar Rao, air 1928 Privy Council 10 it has been laid down that official reports regarding the nature of any estate are valuable and in many cases the best evidence of facts stated therein. However, the opinions expressed therein should not be treated as conclusive in respect of matters requiring judicial determination, however eminent the authors of such reports may be. In light of this state of law we are of the opinion that the said Gazetteer can be looked at as a piece of evidence along with other evidence adduced in the case. At page 191 in Chapter I on Panch Mahals this is what has been stated in regard to the temple of Kalika Mataji situate on pavagadh hill. "at the top is the temple of Kalika mata with, in its chief shrine, three images, Kalika Mata in the centre, Maha kali on her right, and Bechara Mata on her left. Except for its rich marble fiber, presented about twenty years ago by the minister of Limbdi in Kathiawar, the temple probably about 150 years old is small and plain. On its spire is the shrine of Sadan Pir, a Musalman Saint, still held in respect. Kalika Matas chief worshippers are Kolis and Bhills. But especially on the full moon of Chaitra, april, and at Dasara, October, there are large meetings of Hindus of all classes. "in the first footnote at page 191 reference in this behalf has been made to mirat-i-Ahmadi in the following terms. "kalikas shrine is mentioned as a place of pilgrimage under the Ashilvada Kings, ras Mala 189; her worship is referred to in an inscription dated 1469. The present temple would seem to be of later date built probably after the capture of the hill by Kanthaji Kadam (1727 ). The author of the Mirat-i-Ahmedi (1746-1763) mentions the temple of Kalka Bhavani and the shrine of Sadan Shah on its top. The end of the temple spire seems to have been removed to make room for the shrine probably to conciliate muhammadan feeling and protect the rest of the temple. Mr. Acworth says that the hindus claim Sadan as a Hindu declaring that to save their temple, the Brahmans gave out he was a Musalman. The end of the temple spire seems to have been removed to make room for the shrine probably to conciliate muhammadan feeling and protect the rest of the temple. Mr. Acworth says that the hindus claim Sadan as a Hindu declaring that to save their temple, the Brahmans gave out he was a Musalman. " ( 25 ) THE next book to which Mr. Chhaya has invited our attention is History of gujarat by M. S. Commissariat, Vol. I, 1938 Edition. Mr. Commissariat was a well-known and reputed scholar of history. The preface to the book shows that it is a research work for the publication of which the University had made a grant. At paras 190-191 is Chapter xv on "sultan Mahmud Shah I Bogada, 1458-1511 (IT) His war against the Patai naval of Champaner" this is what, has been stated. "the chief object of interest on this very extensive and barren summit of pavagadh lies to its south in the rocky peak about 250 feet high on which Kalka mata site in state. At the top of this peak, which is approached by a steep flight of 226 steps said to have been built by mahadji Scindhia, stands the temple of the deity just mentioned who has been worshipped for many centuries as the guardian goddess of the hill. The shrine, which is visible from a distance of many miles in the plains below, is no doubt very ancient, being mentioned as a place of pilgrimage under the rulers of Anhilvad patan. But the present building, a room with eight pillars and paved with marble, is probably of a much later date and built after the capture of the hill in 1727 by the son of Kanthaji Kadam during the early Maratha invesions of Gujarat. "an extract quoted from Mirat-i-Ahmadi in footnote 1 at page 191 reads as under. "kalika Bhavanis temple is on the summit of Mount Pawa, and on the top of that temple is a shrine which is that of Sadan Shah, and the Brahmans consider that place one of the chief places of worship. "an extract quoted from Mirat-i-Ahmadi in footnote 1 at page 191 reads as under. "kalika Bhavanis temple is on the summit of Mount Pawa, and on the top of that temple is a shrine which is that of Sadan Shah, and the Brahmans consider that place one of the chief places of worship. "at page 192 it has been stated as under:"pavagadh remained under Muslim sway for well-high two centuries and a half, and on the decline of the Mughal empire in Gujarat it fell into the hands of the Marathas, first under the son of kanthaji Kadam in 1727 and later under mahadji Scindhia. The latter considered it a place of the greatest consequence, and, therefore, kept a strong garrison in it, the Killedar making a large profits by taking the pilgrims who come annually from all parts of Gujarat and Malwa to visit the shrine of Kali Mata on the hill. "mr. Oza has raised a contention against the admissibility of this book as well. In our opinion, it is admissible under Section 57 read with Section 87 of the Evidence act. The references in this book go to show that the temple of Kalika Mataji on Pavagadh hill is a very ancient temple the origin of which is lost in antiquity and that pilgrims from Gujarat and Malva visit the temple. ( 26 ) AT Ex. 28 is a document which shows that a cash payment was made from the State Treasury to these temples in 1892-93. The document shows that during that year a sum of Rs. 18/- was paid to the temple of Annapurna Mataji, that a sum of Rs. 2,789/- was paid to the temple of Kalika Mataji, that a sum of Rs. 53 was paid to the temple of bhadrakali Mataji and that a sum of Rs. 8/- was paid to the temple of Budhia darwajani Mataji - all situate on the pavagadh hill and a sum of Rs. 28/- was paid to Ranchhodji temple in the village of Champaner. At Ex. 29 is another document which shows that for the year 1897-98 a sum of Rs. 2,789/- was paid from the State treasury to Kalika Mataji temple. It also shows that payments were to other temples. At Ex. 28/- was paid to Ranchhodji temple in the village of Champaner. At Ex. 29 is another document which shows that for the year 1897-98 a sum of Rs. 2,789/- was paid from the State treasury to Kalika Mataji temple. It also shows that payments were to other temples. At Ex. 27 is one more document which shows that for the year 1936-37 similar payments were made to all the aforesaid temples from the State Treasury. A sum of Rs. 18/- was paid to Annapurna Mataji temple, a sum of Rs. 2,789/- was paid to Kalika Mataji temple, a sum of Rs. 83/- was paid to Bhadrakali Mataji temple, a sum of Rs. 8/- was paid to Budhia darwajani Mataji temple and a sum of rs. 25/- was paid to Ranchhodji temple. At Ex. 30 is a document which shows that the amounts paid to all these temples were paid to Vidyaram Vijayshanker and to his heirs after his death and that it was attached by Pleader Gokaldas kahandas. A close perusal of Exs. 27, 22 and 29 shows that cash allowances which were paid from the State Treasury were paid to the deities. On behalf of the respective deities their Managers received the amounts from the State treasury. It is pertinent to note that they were not paid to the Managers themselves in their personal capacity. Relying upon the contents of Ex. 30 which is an order dated 9th June 1898 made by the mahalkari of Halol, Mr. Oza has contended that the Sanad and the resolution referred to therein have not been produced by the Charity commissioner. According to him, if the said Sanad and the said Resolurion were produced they would have shown that the temples in question have been the private properties of the respondents. He wants us to draw an adverse inference against the Charity Commissioner in that behalf. We are unable to accede to his argument for the simple reason that the term of Sanad referred to in Exs. 30 and 28 is before us for perusal. Ex. 28 refers to Government Resolution No. 6985 dated 13-12-1875 and Sanad No. 18 dated 7th august 1881 so far as the temple of annapurna Mataji is concerned. So far as the temple of Kalika Mataji is concerned, it refers to Sanad No. 19 dated 7th August 1884 and the Government resolution No. 6668 dated 27th November 1875. Ex. 28 refers to Government Resolution No. 6985 dated 13-12-1875 and Sanad No. 18 dated 7th august 1881 so far as the temple of annapurna Mataji is concerned. So far as the temple of Kalika Mataji is concerned, it refers to Sanad No. 19 dated 7th August 1884 and the Government resolution No. 6668 dated 27th November 1875. So far as the temple of Bhadrakali mataji is concerned, it refers to Resolution no. 6985 dated 13th December 1875 and sanad No. 20 dated 7th August 1884. So far as the Budhia Darwajani Mataji temple and Ranchhodji temple are concerned, they refer to the same resolution as in the case of Bhadrakali mataji temple and Sanad Nos. 22 and 24 respectively dated 7th August 1894. ( 27 ) R. N. Joglekars Alienation Manual, brought upto 1921 refers in Chapter V to Devasthan Inams. In Article 59 there is Note-2 which state that a represent permanent or enfranchised private property. We have then in that Chapter table showing different kinds of tenures of Devasthan Inams. At Serial No. 15 in that Table Sanad No. 19 has been mentioned. It was the result of the treaty concluded between Scindia and the british Government. The column dealing with tenures has been divided in four sub-columns which state A, B, C and d. Under B, C and D o has been written. It shows that none of the tenures known as B, C, D explained in Note - 2 in paragraph 59 was applicable to Sanad No. 19. Under tenure a letter 1 has been written, which shows that it applied to sanad No. 19. As stated earlier, in Note 2 in paragraph 59 tenure a has been explained to mean permanent or enfranchised private property. Sanad No. 19 has also been referred to in Article 62 which inter alia, states that Sanad no. 19 flowing from the treaty concluded between the British Government and scindia was issued in respect of cash allowances other than Amals. At page 282 the form of Sanad No. 19 has been printed. Sanad No. 19 has also been referred to in Article 62 which inter alia, states that Sanad no. 19 flowing from the treaty concluded between the British Government and scindia was issued in respect of cash allowances other than Amals. At page 282 the form of Sanad No. 19 has been printed. It states that in conformity with Article iii of the Treaty entered into between her Majestys Government of India and his Highness Scindia on the 12th december 1860 relative to an exchange of territory between the two governments, the Sanad was issued on the part of the British Government to the effect that an annual allowance of a certain amount of rupees would be continued in perpetuity from the government Treasury to the grantee provided that the Managers remain loyal and faithful subjects of the British government. The Sanad was executed by the collector on behalf of the Secretary of State in Council by order of the governor in Council of Bombay. Thus r. N. Joglekars Alienation Manual shows that Sanad No. 19 mentioned, so far as devasthan Inams were concerned, the name of the deity and the Managers who were in charge of the temple or religious endowment. At Ex. 69 is a letter from the Divisional officer and Director of Local Authorities, ahmedabad to the Collector of panchmahals and the President of the district Local Board, Panchamahals. It is dated 13th August 1957. It states that sanction was accorded to the Pilgrim Tax rules framed by the District Local Board, panchamahals. Paragraph 2 of the letter states that the District Local Board should look after the sanitation and lighting of the Champaner village as also of the pilgrim Centres on the Hill and repairs to the road and water supply to the centre. Reference to the Hill is reference to the pavagadh Hill. ( 28 ) WE now turn to the oral evidence on record. Chandramukham Gokuleshwar whose deposition appears at Ex. 20 states in his evidence that the temple of Kalika mataji is an ancient historical and religious place. According to him, it was built by one Devshanker Bhatt]i about 1,000 years ago because it was at that place that Kalika Mataji appeared before him. Chandramukham Gokuleshwar whose deposition appears at Ex. 20 states in his evidence that the temple of Kalika mataji is an ancient historical and religious place. According to him, it was built by one Devshanker Bhatt]i about 1,000 years ago because it was at that place that Kalika Mataji appeared before him. Since Devshanker Bhattji had vision of Kalika Mataji at the place where the temple stands at present Deveshanker bhattji constructed that temple so that the people would go there and worship the deity. Thereafter the witness has turned round and stated in his evidence that the temple was constructed by devshanker Bhattji for his own worship. He has described himself as the Acharya of Kalika Mataji. His duty is to do Puja path and to receive the offerings given to the deity and he and Balashanker mahashanker have been acting as Pujari and Acharya in rotation of 2 years each. He has further stated in his evidence that the accounts of Mataji were kept separate from his personal accounts and admitted that the properties mentioned in column 7b of application Ex. 8 belong to the mataji. He has further stated in his evidence that the cash allowance paid out of the State Treasury had been paid to him as Pujari of the said temple and that he would not be entitled to receive the cash allowances if he was not an Acharya of the temple. All his ancestors had been acting as the Acharyas of Kalika Mataji. All the lands - agricultural lands have been standing in Government records in the names of the respective temples and he and his co-Pujari have been shown as Vahivatdars of the said temples. He has further stated that no attempt was made by them to have properties entered in their names and that they have never protested against the entries showing the properties in the name of Mataji in the government records. The next witness is Pravinbhai balashanker Bhatt whose deposition appears at Ex. 49. He asserts that the temple of Kalika Mataji situate on pavagadh Hill belong to him and that it was constructed by his ancestor devshanker Bhattji because Devshanker bhattji had the Sakshatkar of the Mataji at that place. He has further admitted that the respondents have been the pujaris in rotation. 49. He asserts that the temple of Kalika Mataji situate on pavagadh Hill belong to him and that it was constructed by his ancestor devshanker Bhattji because Devshanker bhattji had the Sakshatkar of the Mataji at that place. He has further admitted that the respondents have been the pujaris in rotation. He has indeed stated in his evidence that accounts of the income of Mataji have not been maintained. The evidence of chandramukham on this point is contrary to what he has stated. His evidence further discloses that the temples have been the historical places of pilgrimage and are more than a thousand years old. They have never paid income-tax at any time on the income of these temples. The evidence of both these witnesses clearly shows that so far as the Kalika mataji temple is concerned a large number of pilgrims visit the temple every year. The evidence of Himatlal Maneklal whose deposition appears at Ex. 63 discloses that the temples in question have been the historical places of pilgrimage and thousand of people every year visit them for Darshan. There is a District local Board Dharmashala at a place called manchi of Pavagadh Hill. The evidence of Zaverbhai Jesang whose deposition appears at Ex. 64 discloses that the respondents have been acting as Pujaris of the temple. The evidence of Parshottam Chhotalal whose deposition appears at Ex. 65 shows that there are persons in Hindu community who perform the hair-cutting ceremony of the first child at the temple kalika Mataji and that the bride and the bridegroom after their marraige go to pavagadh for Darshan of Kalika Mataji. After having had Darshan the bride and the bridegroom offer Dakshina to the respondents. His evidence also discloses that the respondents cannot refuse to anyone the performance of such hair-cutting ceremony. The respondents, according to him, are the Pujaris of the temple. The evidence of Kuberbhai Lallubhai whose deposition appears at Ex. 66 discloses that large group of people go to the temple of Kalika Mataji for darshan on account of their faith in the deity and that the temple is an ancient and historical place of pilgrimage. According to him, thousands of people go to the temple every year for Darshan. The evidence of Kuberbhai Lallubhai whose deposition appears at Ex. 66 discloses that large group of people go to the temple of Kalika Mataji for darshan on account of their faith in the deity and that the temple is an ancient and historical place of pilgrimage. According to him, thousands of people go to the temple every year for Darshan. According to him, whatever is paid to the respondents at the temple by the visitors is paid to them in their personal capacity as Pujaris of the temple in question. ( 29 ) THIS is the evidence in support of the contention that the temple of Kalika mataji is a public temple. From the evidence which we have discussed let us analyse the factors which emerge. In our opinion, the following factors emerge from the evidence. (1) It is a very ancient temple more than thousand years old. (2) Its origin is lost in antiquity. It is not possible to rely upon the evidence of witness Chandrasukhram and witness pravinbhai that about a thousand years ago their ancestor Devshanker had the vision of Mataji at that place and that he had constructed that temple for his own worship. They cannot have knowledge of events which took place a thousand years ago. So far as the origin of the temple is concerned, it is lost in antiquity. (3) The temple is situate on a hill where there is no permanent human habitation. (4) It is situate about a mile away from champaner which is the nearest village. (5) Pilgrims in thousand visit every year this temple for Darshan, for performing their individual rituals and for discharging themselves from the vow (Badhas) which they take for due fulfilment of their desires. They do so on account of their faith in Mataji. (6) The visitors visit the temple without let or hindrance. There is no evidence of anyone having been obstructed in his visit to the temple for Darshan. There is evidence on record regarding offerings from the visitors to Mataji not only in small coins but also in big things, as we shall shortly show. (7) The temple has been shown in government records as belonging to mataji and the respondents have been described as its Vahivatdars and Pujaris. (8) There is cash allowance paid from the State Treasury to maintain it. It has been paid to the deity. (7) The temple has been shown in government records as belonging to mataji and the respondents have been described as its Vahivatdars and Pujaris. (8) There is cash allowance paid from the State Treasury to maintain it. It has been paid to the deity. The respondents are only its recipients in their capacities as the Pujaris or Acharyas of the temple. (9) The evidence of witness chandrasukhram shows that separate accounts of the income of the temple have been maintained. (10) Sanad No. 19 shows that Scindias in their capacity as sovereign Rulers had interest in that temple and that they had passed on their obligation in respect of the temple in the British Government by the Treaty concluded between them and the British Government in 1860. (11) The Properties attached to the temple of Kalika Mataji have been shown in all Government records in the name of Mataji and not in the names of the respondents. Obviously this factor leads to the inference that the immovable properties standing in the name of Mataji were gifted or donated to the deity. (12) The evidence further discloses that the deity has three sources of income: (a) Cash allowance from the State treasury, (b) Offerings by the devotees and visitors and (c) Income from immovable properties given ever to and in the name of Mataji. In view of all these factors we have no doubt in our mind that the temple of Kalika Mataji is a temple within the meaning of Section 2 (17) of the Bombay public Trusts Act, 1950 and is, therefore, a public trust as defined in Section 2 (13) of the said Act. We record this conclusion on the strength of the fact that taking into account the nature of public user of the temple and other attendant factors the members of the hindu community have been using it as of right. In a given case public user as of right may not amount to implied dedication. It depends upon the facts of each case. But so far as the facts of the present case are concerned, no doubt is left in our mind that on an analysis of the evidence discussed by us above not only the user by members of the Hindu community of the said temple has been as of right but that it amounts to implied dedication for the benefit of the Hindu community. ( 30 ) WE now examine the evidence upon which Mr. Oza has placed reliance in support of his contention that the temple of Kalika Mataji is a private property of the respondents. The first factor of which he has invited our attention is stated in the depositions of witness chandramukhram and witness pravinbhai. They have stated that their ancestor Devshankar Bhatlji about a thousand years ago had the Sakshatkar or vision of Mataji on the hill at the place where Kalika Mataji temple is situate. We are unable to place any reliance upon that evidence for the simple reason that those two witnesses cannot have any knowledge of what happened a thousand years ago. There are ways of proving what happened hundred of years ago. If they had led some cogent evidence to show the origin of the Kalika Mataji temple, we would have certainly considered it their bare word - an interested word - relating to the events which happened a thousand years ago cannot be relied upon. They have also not stated in their evidence the source of their knowledge. The first argument raised by Mr. Oza, therefore, on the basis of the evidence of these two witnesses is rejected. ( 31 ) WE have then on record Will, Ex. 22, executed by Bai Divali, widow of narbadashankar Girjashankar on 1st May 1882. She executed that Will in favour of her brother Mayashankar Nanabhai. It tends to show that the testator Bai divali had treated the temple and its properties as private properties. No inference in favour of the respondents can be drawn from the way or manner in which the testator Diwali treated those properties in 1882. It cannot be a determining circumstance at all. The concept of public trust property as distinguished from private property was very hazy and indistinct in 1882. The indian Trusts Act was enacted in 1882. As the Gazetteer referred to by us above shows, Scindias had made over to the british Panchmahals District on 1st august 1856 and had entered into treaty with them in respect of Devasthan Inams sometime in 1860. The latter fact is shown by Joglekars Alienation Manual. It is difficult under these circumstances to believe that a Hindu widow, in 1882, mere interested in making over these properties to her brother than to her husbands reversionary heirs, knew of this distinction. The latter fact is shown by Joglekars Alienation Manual. It is difficult under these circumstances to believe that a Hindu widow, in 1882, mere interested in making over these properties to her brother than to her husbands reversionary heirs, knew of this distinction. This Will of Divali is, therefore, of no consequence whatsoever. ( 32 ) IN 1885 Civil Suit No. 439 was filed between Vidyaram Vajeshankar, mahashankar Pranshankar and ravishankar Pranshankar on one hand and Mayashankar Nanabhai on the other hand. In that suit the Will made by Bai divali, Ex. 22 was challenged by the aforesaid three plaintiffs who were the reversionary heirs of the husband of testator Divali. At Ex. 59 is the Judgment pronounced in that suit by the first class subordinate Judge at Ahmedabad on 10th july 1886. He declared the Will of Divali void because Divali as a Hindu widow had no right to make such a Will. He, therefore, upheld the claim made by the plaintiffs the reversionary heirs of Divalis husband as against Divalis brother - her testamentary heir. In the suit Issue No. 13 was raised in the following terms:"is that property in dispute of the nature contemplated by Section 539 of the Civil Procedure Code ? and Is the suit, being unauthorised by the Advocate general, barred by the provisions of that section ?"the First Class Sub-Judge answered that issue in the negative and held that the suit was not barred by the provisions of Section 539 of the Code of Civil procedure. That issue was answered in the negative by the first class subordinate judge on account of two reasons. Firstly, the Panchamahals District was a non-regulation district to which the Code of Civil Procedure, 1882 was not applied. Secondly, he was of the opinion that section 529 of the Code of Civil Procedure did not apply to that suit the object of which was only to recover trust property from an outsider, that is to say, from a person alleged to have no right to administer it. For taking that view he relied upon the decision of the High Court of Bombay in Lakshmandas Parasharam v. Ganpatray Krishna, I. L. R. 8 Bombay 366. The second reason which the learned first Class Subordinate Judge has stated in support of his conclusion shown the awareness of the trust on the part of the Court at that time. For taking that view he relied upon the decision of the High Court of Bombay in Lakshmandas Parasharam v. Ganpatray Krishna, I. L. R. 8 Bombay 366. The second reason which the learned first Class Subordinate Judge has stated in support of his conclusion shown the awareness of the trust on the part of the Court at that time. ( 33 ) AT Ex. 23 is the decree passed in that suit. It mentions several properties attached to the temple of Kalika Mataji. It is conceded before us that the properties in question in that litigation are the properties in dispute in this litigation. That litigation between two private individuals where public Charity was not represented cannot operate as res judicata in the present suit. Secondly, the judgment and the decree do not show that the respondents ancestors were the owners of the properties in question. They had only the right to administer them. The present respondents are the descendants of the plaintiffs to that suit. This is undisputed. They cannot have higher or better right than their ancestors had. ( 34 ) THE next document upon which reliance has been placed is Ex. 24. It is decree in Civil Suit No. 653 of 1893. It was filed by Bhattji Mahashankar pranshankar against Bhattji Vidyaram vajeshankar. It was a suit inter se between the two branches of the respondents ancestors. Bhattji Vidyaram vajeshankar, the defendant to that suit had been enjoying the income of all the properties in regard to which Divali had made the Will and which were the subject-matter of controversy in Civil Suit no. 439 of 1885. The plaintiff Bhattji mahashankar Pranshankar, therefore, filed that suit for taking accounts of all income and profits from Bhattji Vidyaram vajeshankar from 16th February 1888 to 27th March 1888 and from the latter date till the date of the decision of the suit. The prayer for taking accounts was rejected by the Court of the First Class subordinate Judge, Ahmedabad. The reliefs which were granted were as follows: each of the two parties to the suit had the right to act as Pujaris and administer the temple properties for one year each in turn. The prayer for taking accounts was rejected by the Court of the First Class subordinate Judge, Ahmedabad. The reliefs which were granted were as follows: each of the two parties to the suit had the right to act as Pujaris and administer the temple properties for one year each in turn. In terms of the alternative then assigned to each of the two parties whichever party was in possession of the immovable properties belonging to the mataji and in charge of managing the temple would take all income of the temple and those properties. Similarly each party in his turn was entitled to the allowance of Rs. 2,893/- received from the State treasury. The decree further provides that all expenses in connection with the administration and management of the properties were to be borne by each of the parties during its turn and that the unspent balance could be appropriated by him. ( 35 ) AT Ex. 32 is the order made by the First Class Subordinate Judge, ahmedabad on 22nd December 1914 in darkhast No. 172 of 1914. It appears that new silver doors were presented to the deity by a devotee and a dispute arose between the parties as to whom they would go. The order records the fact that these doors were dedicated to the deity at the time when Gokleshwar, one of the parties had a turn as a Pujari and that, therefore, he had the right to take them away. This document shows that the present was made to the deity and that the respondents ancestors had been appropriating to themselves the movables presented to the deity. This document furnishes the evidence of big presents which devotees had been making to the deity and to which we have referred in the earlier parts of this judgment. ( 36 ) AT Ex. 25 is an application made by Bhattji Balashankar Mahashankar, son of Bhattji Mahashankar Pranshankar and bhattji Gokleshwar Vishnushankar as the heir of Bhattji Vidyaram Vijayshankar on 9th August 1917 for recording an adjustment in Civil Suit No. 653 of 1898. ( 37 ) AT Ex. 26 is a similar application made on 16 April 1928 by the said parties in Civil Suit No. 653 of 1893. That application was granted. ( 37 ) AT Ex. 26 is a similar application made on 16 April 1928 by the said parties in Civil Suit No. 653 of 1893. That application was granted. As a result of the adjustment made by the parties and recorded in the Court, the duration of the turn of each of the two parties to act as Pujaris was enhanced from one year to two years. ( 38 ) AT Ex. 52 is decree in Civil Suit no. 904 of 1903. It was a suit filed by creditor against the ancestors of the respondents. It has been relied upon by mr. Oza in order to show that the plaintiffs - creditors in that suit had described the respondents ancestors as owners of the temple in question. ( 39 ) AT Ex. 53 is decree in Civil Suit no. 903 of 1903. It was also a suit by a creditor against the ancestors of the respondents. It also contains a similar description of the respondents ancestors. ( 40 ) AT Ex. 54 is decree in Civil Suit no. 910 of 1903 by a creditor against the respondents ancestors. It also contains an identical description of the respondents ancestors. . ( 41 ) AT Ex. 55 is decree in Civil Suit no. 912 of 1903. It was a suit by creditors against the respondents ancestors in which ( 42 ) AT Ex. 56 is a darkhast filed by a creditor against the respondents ancestors. The judgment-creditor by that application prayed for attachment of the amount of Rs. 2,893/- which the respondents ancestors had been receiving from the State Treasury in respect of Kalika Mataji temple. ( 43 ) EXS. 24, 32, 25, 26, 52, 53, 54, 55 and 56 do not show that the respondents ancestors had at any time any right to the corpus of the properties of Kalika mataji. They show that they had been appropriating to themselves the unspent balance of the income and the usufruct of the properties. The fact that they were appropriating to themselves all surplus income does not establish their provate ownership of the temple and the properties attached to it. Such appropriation is consistent with their remuneration as Pujarais. Instead of fixed salary they had been appropriating to themselves the surplus income. The fact that they were appropriating to themselves all surplus income does not establish their provate ownership of the temple and the properties attached to it. Such appropriation is consistent with their remuneration as Pujarais. Instead of fixed salary they had been appropriating to themselves the surplus income. We have no evidence before us of their having at any time dealt with the corpus of the properties attached to the temple and owned by the deity. The corpus appears to have remained intact. We are, therefore, unable to draw from the aforesaid documents an inference as to their private ownership of the properties in, question. Next, we do not have before us the nature of the debts in respect of which the aforesaid decrees were passed. We are, therefore, unable to say whether the decrees were passed in respect of the private debts of the respondents ancestors or in respect of the debts incurred by them for the temple. ( 44 ) THE next document upon which reliance has been placed by Mr. Oza is a photograph, Ex. 70. It has been proved by the evidence of the photographer bakubhai Manilal Shah whose deposition appears at Ex. 60. The photographer shows that the inscription on the arch of the entrance gate in Gujarati which means "no admission without permission". In our opinion, this photograph proves only the state of things as it existed at the time when it was taken. It cannot prove any fact nor can it prove the age of the inscription. ( 45 ) ON behalf of the respondents an attempt has been made to show by oral evidence that admission to the temple of kalika Mataji was regulated by thier permission. Witness Chandramukhram to whose evidence we have referred earlier in some other connection has stated in his evidence that visitors used to enter the temple for Darshan of the deity with his permission. In his cross-examination he has stated that he has no written evidence to prove that fact. He has also stated that he cannot cite any instances of visitors or devotees having sought permission from his ancestors to enter the temple. He also could not give any instance of any person having been prevented from having Darshan in the temple. Therefore, he has not been able to adduce any evidence in support of his case except his bare word. He also could not give any instance of any person having been prevented from having Darshan in the temple. Therefore, he has not been able to adduce any evidence in support of his case except his bare word. It is difficult to rely upon it, more particularly when the temple is a thousand years old temple attracting a large number of devotees from different parts of the country. Witness Pravinbhai whose deposition appears at Ex. 49 has also deposed to the same effect. It has been brought out in his evidence that only mischief-mongers are obstructed from entering the temple. If mischief-mongers are obstructed from entering the temple, it is more for the purpose of maintaining the discipline therein than for the purpose of regulating admission on the ground that it is a private property. He too has no other evidence except his bare word in support of his case. He has further stated in his evidence that in an earlier suit it was not the case of the respondents ancestors that visitor and worshippers used to enter the temple with the permission of the Acharya or the Pujari. Witness Himatlal Maneklal to whose deposition we have referred earlier in some other connection has stated in his evidence that within his knowledge no one was ever obstructed from entering the temple for Darshan and that no permission from anyone was required to enter it. His evidence demolishes the case advanced by the respondents. Witness zaverbhai Jesang has tried to support the respondents by deposing that pel-mission from the respondents is necessary to enter the temple. In his cross-examination it has been brought out that he had visited the temple of Kalika Mataji only on three occassions when he went along with others in groups for Darshan there. He has further stated that he had not taken any such permission at any time. His evidence, therefore, does not lend any support to the respondents case. Witness parshottam Chhotalal to whose evidence we have referred earlier in some other connection has also tried to support the respondents in this behalf. In his cross-examination it has been brought out that the respondents cannot refuse permission to enter the temple for the purpose of hair-cutting ceremony of children. Witness parshottam Chhotalal to whose evidence we have referred earlier in some other connection has also tried to support the respondents in this behalf. In his cross-examination it has been brought out that the respondents cannot refuse permission to enter the temple for the purpose of hair-cutting ceremony of children. He has further stated that no permission is necessary for entering the temple for Darshan and that the visitors enter the temple without any obstruction and without any permission. The case which was sought to be supported by him in his examination-in-chief has been given a go-by in his cross-examination. Witness Kuberbhai Lallubhai to whose deposition we have referred earlier in some other connection has also tried in his examination-in-chief to support the respondents. In his cross-examination he has stated that he has not seen anyone having been obstructed by the respondents from having Darshan in the said temple and that he has not seen the respondents giving permission to the pilgrims for entering the temple in question. The only permission of which he says he has been knowing to the permission granted to Patel Chhotabhai morarbhai of his village who led a Sangh sometime in the past to the temple at pavagadh. Chhotabhai Morarbhai has not been examined by the respondents. The evidence of witness Kuberbhai under the aforesaid circumstances cannot be accepted. In our opinion, it has not been proved by the respondents that at any time in the past or in the present it was or has been necessary for anyone to obtain the permission to enter the temple for darshan. Referring to the inscription (vide Ex. 70) Mr. Oza has argued that no protest has been raised by the members of the public against that inscription. The question of the members of the public having raised a protest at any time in the past does not arise because, in our opinion, the evidence does not show that any one was ever obstructed from entering the temple. It is only when the obstruction is caused that the question of raising protest arises. ( 46 ) MR. Oza has tried to make out certain other circumstances in support of the respondents case. According to him, the deity is in the movable form. On this question, the learned District Judge has recorded the following finding:"the oral evidence is also wholly in favour of the petitioners. ( 46 ) MR. Oza has tried to make out certain other circumstances in support of the respondents case. According to him, the deity is in the movable form. On this question, the learned District Judge has recorded the following finding:"the oral evidence is also wholly in favour of the petitioners. It is in evidence that each petitioner maintains his own yantra. Over the yantra there is no stone or wooden image of the Mataji. Only the form of Mataji is presented in clothes in female dress. Each petitioner removes his yantra and when the second petitioner takes charge, he places his own "yantra. "witness Pravinbhai in this behalf states in his deposition as under. "there are two Yantras in the said temple. One is of my branch and the other is of Chandramukhrams branch. Each of the applicant takes away his yantra when his wara or Puja is over. "the Gazetteer to which we have referred and from which we have quoted an extract in the foregoing paragraph shown that there are three images in the temple - one of Kalika Mataji in the centre and one each on two sides - one of Maha kali and another of Bechara Mata. The disinterested record of the temple in the gazetteer is more preferable to an interested word of the respondents in that behalf. Even if the evidence of witness pravinbhai is true it is difficult to accept the proposition that yantra is the deity. yantra is not the image. There may not be any image or idol. It may be produced by fixing clothes in a particular manner. Even then the proposition which Mr. Oza has strenuously argued before us raises the following questions. Is yantra an image or idol ? he has invited our attention in this behalf to Principles of Tantra (Tantra tattva) by Arthur Avalon (Sir John woodroffe ). He has referred to certain paragraph at pages 37, 110, 519, 524, 560 and 905. The proposition which has been stated by the author in the said book is that the true Tantnk worship is the worship in and by the mind and that the less subtle form of Tantnk worship is that of the Yantra. Form, according to the author, is born of the Yantra and the form is made manifest by Japa, and awakened by Manlrashakti. When ishvara, Virata, Brahma, Vishnu, Rudra, indra, Agni, etc. Form, according to the author, is born of the Yantra and the form is made manifest by Japa, and awakened by Manlrashakti. When ishvara, Virata, Brahma, Vishnu, Rudra, indra, Agni, etc. are worshipped as ishvara, they grant fruits according to the Shaktis, inherent in their respective yantras. According to Mr. Oza, it is this kind of yantra which is placed by each of the respondents during his turn in kalika Mataji temple. He has also referred to Sakti and Sakta by Sir John woodroffe, 1969 Edition. In Chapter XX at page 263 this is what he has stated. "the symbols employed are either geometric - that is, Yantric - or pictorial. A Yantra is a diagrammatic presentation of Divinity, as Mantra is its sound expression. The former is the body of the latter. The higher worship is done with Yantra. . . . "i will now describe a Yantra and the greatest of Yantras, namely the Sriyantra. We have no longer to deal with pictures of persons and their surroundings, but with lines, curves, circles, triangles, and the point. "in our opinion, a yantra is an instrument to invoke Divine Shakti. It is not Shakti itself. It is not idol or image. While arguing the case on behalf of the respondents Mr. Oza in terms stated to us that through yantra, Shakti can be invoked only in the temple when it is placed in a Ghokh (a carved-out cavity ). Therefore, the importance is attached to the place where the yantra is worshipped and not at any other place where it may for the time being be removed. The argument which he has tried to advance on the basis of the movability of the yantra is that since the yantra is taken home when a respondent ceases to have his turn, the temple is his private property. yantra may be a movable article but not temple where alone it can summon or invoke divine Shakti. The temple is immovable. The argument, therefore, which he has tried to advance on this basis as to the private character of the temple, in our opinion, has no substance. Next, it is nobodys case that any pilgrims ever go to any of the respondents at his home to worship this yantra when it is lying there. The temple is immovable. The argument, therefore, which he has tried to advance on this basis as to the private character of the temple, in our opinion, has no substance. Next, it is nobodys case that any pilgrims ever go to any of the respondents at his home to worship this yantra when it is lying there. He has also invited reference to Sat sandesh - Shakli issue in which an article under the heading shakti Puja by vishnudev Sankaleshwar Pandit appears. This is not a standard book or publication containing certain articles. Secondly, the article upon which Mr. Oza has relied cannot be made use of because we do not have before us the complete article. Its first page is torn. Thirdly, that article proves nothing because it makes no reference to Kalika Mataji temple. It refers to Shakli Puja in general to which reference has been made by Sir John woodroffe in the aforesaid two books. 47 ) NEXT, Mr. Oza has relied upon the fact that the respondents at times close the temple to the members of the public. This argument has no substance because the evidence of withnesses chandramukhram and Pravinbhai shows that it is closed only on 7th, 8th and 9th days of the bright half of the month of Ashad every year from performing mafia Puja. The first nine days of the month of Ashad are regarded as Ashadi nav Ratri. It is also not the respondents case that Mafia Puja is being perforemed throughout the day. It is also not their case that even after the Mafia Puja is performed the temple remains closed to the members of the public. It is, therefore, clear that during these hours during which the Mafia Puja is performed on these three days the respondents have been closing the temple to the members of the public. That, in our opinion, is to maintain the sanctity of the Mafia Puja and to maintain the discipline in the temple. Relying upon this evidence Mr. Oza has argued that no members of the public have ever raised a protest against the closure. In our opinion, there is no closure as such. The question, therefore, of anyone raising protest against it does not arise. In paragraph 42 of his judgment the learned District Judge has taken a contrary view. Relying upon this evidence Mr. Oza has argued that no members of the public have ever raised a protest against the closure. In our opinion, there is no closure as such. The question, therefore, of anyone raising protest against it does not arise. In paragraph 42 of his judgment the learned District Judge has taken a contrary view. In our opinion, on the evidence on record the view recorded by him is absolutely unsustainable. This circumstances, therefore, is unable to show that the temple in question has been the private property of the respondents. ( 48 ) THE next circumstances upon which mr. Oza has relied is that no donations or contributions were invited from the members of the public by the respondents ancestors for constructing the temple. According to him, the Charity commissioner has not produced any evidence to show the contrary. One does not know when the temple was constructed. The Gazetteer to which we have referred shows that the temple was renovated sometime early in 19th century. When it was done it was done out of donation made by the Divan of Limbdi. The Gazetteer also shows that moneys were contributed by the soverign power ruling over that territory. In view of these facts the negative circumstance upon which Mr. Oza has relied can hardly be made any use of in favour of the respondents. ( 49 ) THE next circumstance upon which he has relied is that no donations or constributions were invited from members of the public for repairs. We have already stated in the earlier part of this judgment that the temple has three sources of income. One of the decrees to which we have referred shows that the respondents have been spending out of the income of the temple in question for its maintenance and upkeep. It is clear that in lieu of income which they used to appropriate to themselves they were discharging obligations of maintaining the temple and performing Seva Puja and other things. It appeals that there was no law to regulate their appropriation or application of the unspent balance to themselves. It probably went to them as remuneration. This circumstance, therefore, cannot prove that the respondents ancestors had been maintaining the temple out of their private funds. They had been spending out of the income of the temple and taking away and appropriating the surplus balance to themselves. It probably went to them as remuneration. This circumstance, therefore, cannot prove that the respondents ancestors had been maintaining the temple out of their private funds. They had been spending out of the income of the temple and taking away and appropriating the surplus balance to themselves. ( 50 ) THE next circumstance upon which mr. Oza has relied is that income-tax was paid by the respondents ancestors on the income received by them. He has invited our attention to Ex. 24 which is the Assessment Order for the year 1933-34. It Ex. 11 is an application made to the Assistant Charity Commissioner on 5th April 1954 with which four documents were produced by the respondents. The first one of them is dated 28th March 1925. It is a notice calling upon the respondents to pay income-tax. Another document is dated 5th June 1924. It is also a notice calling upon the respondents to pay income-tax. The third is a receipt for payment of income-tax for the year 1923-24. The amount which they paid under that receipt was Rs. 65-2-0. The fourth and last document is a notice calling upon the respondents to fill in the income-tax form for 1926-27. On the basis of these documents Mr. Oza has tried to argue that since the respondents have been paying income-tax on the income received by them, the temple and the properties attached to it are all their private properties. We are not impressed by this argument at all. We have already stated in the earlier part of this judgment that the respondents had been appropriating to themselves the unspent balance of the income of the temple in question. On this unspent balance which became their income they were bound to pay income-tax under the law then in force. Remuneration received by Pujaris or acharyas from a public trust does not fall under public charity. We have no evidence before us to show that the income of the temple as such was taxed. The further argument raised on this basis that the respondents had not claimed exemption from income-tax on the ground of public charity loses all its value. ( 51 ) HE has also tried to make out some small points in favour of the respondents case. The further argument raised on this basis that the respondents had not claimed exemption from income-tax on the ground of public charity loses all its value. ( 51 ) HE has also tried to make out some small points in favour of the respondents case. One of them is that even though the Assistant Charity Commissioner issued public notice none came forward to give evidence to show that the temples in question have been public temples. We are not concerned with that proposition. We are concerned with the evidence on record and finding out therefrom whether the temples in question are public temples. Apathy on the part of the members of the public to give evidence against the respondents cannot lead to that that the respondents are the owners of the temple in question. ( 52 ) THE next circumstance upon which he has relied is that the respondents did not at any time held out thai, the temples were public temples. If there was no evidence on record, we would have certainly considered this argument of Mr. Oza closely. Since, in our opinion, there is sufficient evidence to show that the temple of Kalika Mataji is a public temple, this argument of Mr. Oza loses its value. ( 53 ) THE next argument which he has advanced is that the respondents have been exclusively performing Seva Puja. Whether the Pujaris exclusively perform the Seva Puja or whether the members of the public are entitled to participate in it depends upon the customs and traditions of each temple. It cannot lead to the conclusion that the temples in question are the private properties of the respondents. ( 54 ) THE next circumstance upon which he has relied is that the worship at Kalika mataji temple has gone from heir to heir and not from Chela to Chela. That argument has no force because succession from Chela to Chela would have received some significance if the temple was managed by a Mahant. This argument only shows the hereditary succession in the matter of performing Seva Puja. ( 55 ) THE next argument which he has raised before us is that the members of the public have never interfered with the management of the temples in question. It only leads to an inference that the temples have been efficiently managed. This argument only shows the hereditary succession in the matter of performing Seva Puja. ( 55 ) THE next argument which he has raised before us is that the members of the public have never interfered with the management of the temples in question. It only leads to an inference that the temples have been efficiently managed. It does not lead to the inference that they belong to the respondents as their private properties. ( 56 ) "the next argument of Mr. Oza is that the respondents have never made any arrangements for visitors such as construction of Dharmashala and provision of food and water. It is true that the respondents have never done so, but the evidence shows that there is a district Local Board Dharmashala at a place called Manchi on Pavagadh hill. The existence of this Dharmashala established and managed by a public body points in the contrary direction. ( 57 ) THE next circumstance which he has pressed into service is that the respondents have been taking away all the offerings whether made to the deity or to themselves. Evidence shows that subject to the discharge of their obligation to maintain the temple and to perform the Seva Puja the respondents have been appropriating all surplus income to themselves. Evidence also shows that they have never dealt with the corpus of the temples and the properties attached thereto. Viewed from that angle this circumstance advanced by Mr. Oza before us does not lead to the inference that the temples in question have been the private properties of the respondents. ( 58 ) THE next circumstance pressed in- to service by Mr. Oza is that the temple and the properties attached thereto were not registered by the respondents or their ancestors under the Bombay Public trusts Registration Act, 1935. He has not shown to us the provisions of that Act nor has he shown the circumstances under which the registration of a public trust was compulsory under that Act. We are, therefore, unable to make use of this argument for any purpose whatsoever. ( 59 ) ONE more circumstance which he has pressed into service is that a number of documents which we have referred to earlier show that the properties have been dealt with by the respondents and their ancestors as their private properties. We are unable to accede to that argument of his. ( 59 ) ONE more circumstance which he has pressed into service is that a number of documents which we have referred to earlier show that the properties have been dealt with by the respondents and their ancestors as their private properties. We are unable to accede to that argument of his. These documents, as stated in the earlier parts of this judgment, only show that the respondents have been appropriating to themselves the urgent balance of the income of the temples in question. Even in the suit of 1885 to which we have referred what was in dispute was the right to worship and the right to take income as a consequence thereof. The respondents ancestors even at that time did not claimed title to the properties in question, nor did they held out that the temple and its properties were their private properties. ( 60 ) ON the strength of the Will of Bai divali he has next tried to argue that the averments made in the plaint in the suit of 1885 as reproduced in the decree ex. 23, Narmadashankar was decribed as the owner of the temple properties. It at the most amounts to the respondents setting title in themselves. It cannot be proof of their ownership. . ( 61 ) THE next circumstance which he has tried to show is that the respondents had carried out repairs to the temples in question. There is no definite and reliable evidence before us of their having done it. However, assuming that they did so, because they have been in possession of the temples all throughout and all that they were doing was to discharge an obligation in lieu of the income which they were receiving from the temple. They were not carrying out the repairs out of their private funds. On the contrary, they appeal every year to have taken away the unspent balance probably as their remuneration. ( 62 ) THE next circumstances which he has relied upon is that the evidence shown that the visitors go to the temple to have darshan and not to have Puja. According to him, Darshan without Puja cannot amount to public user of the temple as of right within the meaning of Section 2 (17) of the Bombay Public Trusts Act. We are not at all impressed by this argument. According to him, Darshan without Puja cannot amount to public user of the temple as of right within the meaning of Section 2 (17) of the Bombay Public Trusts Act. We are not at all impressed by this argument. Mere Darshan, Darshan with chanting of Mantras, Darshan with offerings in cash or kind, placing of tilaks, bowing at the feet of Divinity, salutation with folded hands, lying prostrate with outstretched or folded hands in front of the Divinity, sitting near or at a distance from Divinity, and offering prayers, giving costly Bhets, etc. are all different forms of worship. Worship does not have that limited connotation which Mr. Oza tries to place upon it. ( 63 ) HE has then invited our attention to Ex. 59 which is the plaint in Suit No. 439 of 1885. In paragraph 4 of that plaint it has been stated as follows: "the Maharaja Scindia recognised girjashankar as the son of Bapubhai, and entered his name in the records as girjashankar Bapubhai, and gave him a sanad and paid him the cash allowance. " this does not show that Maharaja scindia recognised at that time the respondents ancestors private ownership of the temple and its properties. ( 64 ) THE several circumstances which mr. Oza has tried to press into service do not, in our opinion, individually or cumulatively lead to the inference that the temple of Kalika Mataji and the properties attached thereto have been the private properties of the respondents. In our opinion, the temples of Kalika Mataji situate on Pavagadh hill and the properties attached thereto are public temples within the meaning of that expression given in section 2 (13) of the Bombay Public trusts Act, 1950. ( 65 ) SO far as the temple of Bhadrakali mataji is concerned, we have very slender evidence before us. We have already referred to Exs. 29, 30, 28 and 27. They show that out of the State Funds some cash grants were made to the temple of bhadrakali Mataji. The evidence of witness Chandramukhram shows that separate accounts in respect of the temple of Bhadrakali Mataji have been maintained by him. We have then a very vague and indistinct admission made by witness Pravinbhai in which he has stated that what he has stated about the temple of Kalika Mataji is also true about the temple of Bhadrakali. The evidence of witness Chandramukhram shows that separate accounts in respect of the temple of Bhadrakali Mataji have been maintained by him. We have then a very vague and indistinct admission made by witness Pravinbhai in which he has stated that what he has stated about the temple of Kalika Mataji is also true about the temple of Bhadrakali. The evidence of cash grants to Bhadrakali temple and maintenance of separate accounts of the income of Bhadrakali temple do not prove their public user - much less their public user as of right. The statement made by witness Pravinbhai is too vague and indefinite. We cannot read too much into it so as to hold that whatever is true of Kalika Mataji temple is also true of bhadrakali temple. We, therefore, do not propose to use it against the respondents. On this slender evidence we are unable to record the conclusion that the temple of Bhadrakali has been used by the members of the public as of right as a place of public religious worship within the meaning of that expression given in the Bombay Public Trusts Act, 1950. ( 66 ) SO far as the three other temples are concerned - two on Pavagadh Hill and one in Champaner village - , we have before us only the evidence of cash grants having been paid to those temples out of State funds. There is no other evidence. On the strength of the evidence of payment of cash grants to them (Exs. 29, 30, 28 and 27) we are unable to record the conclusion that members of the public have been using that temple as of right as a place of public religious worship. So far as the Haveli is concerned, there is no evidence whatsoever. ( 67 ) NOW, in respect of all these temples and the Haveli a joint inquiry was held by the Assistant Charity Commissioner. The joint inquiry brought out overwhleming evidence only in relation to the temple of Kalika Mataji. It appears that attention was not focused on other temples probably because they were of less of importance. The learned District judge has held that the joint inquiry has caused prejudice to the respondents in regard to the three other temples. The joint inquiry brought out overwhleming evidence only in relation to the temple of Kalika Mataji. It appears that attention was not focused on other temples probably because they were of less of importance. The learned District judge has held that the joint inquiry has caused prejudice to the respondents in regard to the three other temples. We are of the opinion that the joint inquiry held by the Assistant Charity commissioner has caused prejudice to the respondents not only in respect of three temples but four temples including one of Bhadrakali. The finding on issue No. 3 recorded by the Learned District Judge in this behalf has not been challenged by Mr. Chhaya. On the contrary, we are of the opinion that the joint inquiry in respect of all the temples and the Haveli has produced topsided result. It is open to the Assistant Charity Commissioner to hold a fresh inquiry in respect of all other temples excluding Kalika Mataji temple. ( 68 ) IN the result, we set aside the finding recorded by the learned District Judge in regard to the temple of Kalika Mataji and hold that it is a public trust within the meaning of that expression given in the Bombay Public Trusts Act, 1950. We accordingly set aside that part of his order and restore in that behalf the order made by the Assistant Charity Commissioner and confirmed by the Charity commissi6ner on appeal. The rest of the order recorded by the learned District judge is modified to the extent that it shall be open to the Assistant Charity commissioner to make a fresh inquiry in regard to the other temples. We record this part of the order because, in our opinion, the joint inquiry for all the temples has led to prejudicial and lopsided result. ( 69 ) SO far as issue No. 2 is concerned, mr. Chhaya has not advanced any argument before us in regard to mode of succession. We, therefore, confirm the finding that the respondents are the hereditary Acharyas and Pujaris of kalika Mataji temple. He has, however, challenged the finding recorded by the learned District Judge in paragraph 57 of his judgment to the effect that "all the surplus of the income of the temples remaining after the disbursement for the puja and. We, therefore, confirm the finding that the respondents are the hereditary Acharyas and Pujaris of kalika Mataji temple. He has, however, challenged the finding recorded by the learned District Judge in paragraph 57 of his judgment to the effect that "all the surplus of the income of the temples remaining after the disbursement for the puja and. upkeep of the temples and other expenditure for the temples belong to the petitioners and is the private property of the petitioner. " In our opinion, under section 19 of the Bombay Public Trusts act, 1950 the Assistant Charity commissioner was not required to inquire into this matter. Therefore, it was not open to the learned District Judge to record a finding in that behalf. We, therefore, set it aside. It is open to the charity Commissioner to settle a scheme in regard to Kalika Mataji temple or to fix the respondents remuneration in that behalf. ( 70 ) IN the result, the appeal is partly allowed. In view of the fact that the charity Commissioner has succeeded in this appeal in part, we direct that there shall be no order as to costs of this appeal. The costs of the Charity Commissioner to come out of the estate. ( 71 ) MR. R. N. Shah on behalf of Mr. Oza at the conclusion of this judgment applies for certificate under Sub-clauses (b) and (c) of Clause (1) of Article 133 of the Constitution for appeal to the supreme Court. So far as his application under Sub-clause (c) is concerned, we do not think this is a fit case for appeal to the Supreme Court. That part of his application is rejected. So far as his application under Sub-clause (c) is concerned, admittedly the property which is affected by our judgment is worth more than Rs. 20. 000/ -. We have reversed the decision of the Court below. We, therefore, grant Certificate under Article 133 (1) (b) to the respondents to appeal to the Supreme Court. Appeal partly allowed. .