GANGADHAR AMBADAS PARASHARE Vs. MAHADEO AMBADAS PARASHARE

JUDGEMENT

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

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

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