Allahabad High Court
Asthan City Oudh vs . Secretary Of State Of India, Court on 18 March, 1889
1
1751
The third are called Arsha, or shrines of the great
Rishis, men who by virtue of austerities and good works
are in near proximity to the deity. [180] Their shrines are
counted by thousands. Amongst them are Nimkhar
(Nimishara), Pukhra (Pushkara), Khushab, and Badiri.
The fourth are called Manusha, or appertaining to
men who by their power of good works are superior to
mankind in general, though they do not obtain the rank of
the third degree. Their shrines also are numerous. Among
them is Kurkushetra, which for forty kos around is
considered holy, and numerous pilgrims resort thither
during eclipses of the sun and moon.
Ceremonies are laid down for each pilgrimage and
their various meritorious results are declared.
O THOU! That seekest after divine knowledge, learn
wisdom of these Hindu legends! Each particle among
created atoms is a sublime temple of worship. May the
Almighty deliver mankind from the wanderings of a vain
imagination troubles over many things." (Page 332-336)
"...taken from the letter which is therewith connected
and a name of more than four letters is considered
blameworthy. In the fourth month they bring it into the sun
before which time it is never carried out of the house. In
the fifth month they bore the lobs of the right ear. In the
sixth month, if the child be a boy, they place various kinds
of food around him, and feed him with that for which he
shows a preference. If it be a girl, this is not done till the
sixth or seventh month. When it is a year old, or in the third
year, they shave his head, but by some this is delayed till
the fifth year, by others till the seventh, and by others again
1752
till the eighth year, when a festival is held. In the fifth year
they send him to school and meet together in rejoicing.
They observe the birthday and annually celebrate it
with a feast, and at the close of each year make a knot on a
thread of silk. He is invested with the sacred string at the
appointed time. At each of these occasions they perform
certain works and go through some extraordinary
ceremonies." (Page 349)
1623. On page 349, the important religious festivals of
Hindus are also discussed which include Rama-Navami on page
350. Sri Mishra says, while acknowledging Ayodhya at length
on various aspects of the matter, Abul Fazal having not noticed
any building said to have been constructed by or under the
command of Babar in 1528 AD proves that the same was not
actually built in that manner and did not exist till then also.
1624. Sri Mishra, when asked that the building in dispute ex
facie appears to be a Mosque, then how it came into existence if
not constructed in 1528, submitted that it was actually attacked
and damaged at the time of Aurangzeb and attempt was made to
give it shape of a Mosque and inscriptions on the said building
were fixed by someone much thereafter. He placed before us
"Indian Texts Series-Storia Do Mogor or Mogul India 1653-
1708" by Niccolao Manucci translated in English by Milliam
Irvine Vol. III pages 244/245 where it deals with the Hindu holy
places and reference to destruction of chief temple of Ayodhya
by Aurangzeb and reads as under :
"In this realm of India, although King Aurangzeb
destroyed numerous temples, there does not thereby fail to
be many left at different places, both in his empire and in
the territories subject to the tributary princes. All of them
1753
are thronged with worshippers; even those that are
destroyed are still venerated by the Hindus and visited for
the offering of alms. The Hindus assert that in the world
there are seven principal places where it is possible to
obtain what one has imagined and desired-that is to say, in
cases where a person wishes to become emperor or king,
wealthy, powerful, or to attain other positions of the same
order. Now they ordinarily hold that on dying a person's
soul is transferred according to the deeds he has done; if
he has done good, his soul will pass into some one of
consideration or of wealth, and should the deceased have
done evil, his soul will be sent into some animal- an
elephant, camel, buffalo, cow, tiger, wolf, a bird, a snake, a
fish, et cetera. Now, some great sinner, deserving of hell,
may be anxious for delivery therefrom, and want to become
an emperor or great noble, or whatever he fancies; it can
be done by sacrificing his life by drowning himself in a
river or in the tanks found near temples at the foot of the
gates.
The principal temples referred to above are these-
that is to say:
1. The first, Maya, to be found among the mountains
of the north.
2. Matura (Mathura), which is near the city of Agrah.
3. Caxis (Kashi), which is on the Ganges, in the city
of Benaras.
4. Canchis (Kanji), in the Karnatik
5. Evantica, in the mountains of Tartary.
6. Puris (Puri), on the borders of Cochin China.
7. Darahotis (? Gangotri), at the source of the
1754
Ganges, as they suppose it to be [+5].
Bands of interested persons make these lengthy
pilgrimages, enduring a thousand hardships on the way,
only at the end to drown by their own choice, without
considering where they are about to take up their abode.
The chief temples destroyed by King Aurangzeb
within his kingdom were the following:
1. Maisa (? Mayapur),
2. Matura (Mathura),
3. Caxis (Kashi)'
4. Hajudia (Ajudhya),
and an infinite number of others; but, not to tire the reader,
I do not append their names." (Page 244-245)
1625. Niccolo Mauucci was a traveller, who came to India
during the reign of Aurangzeb and had written his account of
travel in the aforesaid book.
1626. Sri Mishra pointed out that the reign of Emperor
Aurangzeb was a total Islamic reign and all actions to cause
damage to Hindu religion and religious places were taken by
him. He not only revived Jizya which was a tax payable by non-
Islamic people but also caused damage to Hindu religious places
at a large scale. Sri Mishra refers to "India in the 17th Century
(Social, Economic and Politician) Memoirs of Francois
Martin (1670-1694)" Volume II, Part I (1681/1688) translated
by Lotika Varadarajan first published 1984 by Manohar
Publications, New Delhi and on page 880 where it discusses
about the rate of 'Jizya' increased by the Emperor in October
1683 AD and says :
"Towards the beginning of October, the principal
bania merchants assembled to discuss the orders to
1755
increase the rate of jizya which had been sent by the
Emperor to the Governor. I have already spoken about this
tax which is similar to the carage paid by Christians in
Turkey. During the remaining part of the month, several
more meetings took place but these met with small success.
If the entire amount due from this tax had been properly
collected and paid into the imperial exchequer, the amount
obtained by the Emperor under this head alone would have
been far larger than the entire revenue accruing to him
from the many kingdoms which made up his vast empire."
(Page 880)
1627. About the destruction of religious places, Sri Mishra
referred to Page 914 which says :
"When it had come to the knowledge of the Emperor
that many rich Gujarati banias had built temples within
their homes to perform their devotions, in his religious
fervour, he ordered that the Governors of the province
should carry out an inspection. All the temples in the
cities and villages had been destroyed. Now these inner
sanctums were also to be laid low and the least sign of
the practice of Hindu religion was to be wiped out. The
members of this community, particularly at Hyderabad and
Cambay where they were to be found in large numbers,
were greatly alarmed at these instructions. It was said that
the banias managed to circumvent the Mughal orders by
giving presents to the Governors who thereupon took their
inspection tours very lightly." (Page 914)
1628. Volume II, Part II or "India in the 17th Century
(Social, Economic and Politician) Memoirs of Francois
Martin (1670-1694)" first published in 1985 page 1249 was
1756
relied by Sri Mishra which reads as under :
"Following the Emperor's orders with regard to the
destruction of temples, the Moors brought one down in the
Carnatic. This incited the Hindus to revolt in an attempt to
prevent this action. The two communities clashed openly
and both sides sustained loss of life. As a result, the Moors
were forced to postpone their demolition activities to a
later date."
1629. He also referred to footnote 31 on page 1249 which
says :
"31. According to French archival sources, B.N.,
N.A., 6213 (16), the Emperor had ordered all Hindu
temples to be destroyed including that of Jagannath at
Puri. This had brought about a Hindu rebellion as a result
of which the edict was not enforced."
1630. He also referred to "Mughal Documents (A.D. 1628-
59) Volume II by S.A.I. Tirmizi (first published 1995 by
Manohar Publishers and Distributors, New Delhi). On page 142
at sl. no. 426 there is a reference of a Farman of Aurangzeb of
15th March 1659 AD, which reads as under :
"426. Manshur of Aurangzeb addressed to Abul
Hasan states that it has been brought to the notice of the
royal court that the Brahmins of Banaras are being
removed from their ancient offices and that Hindus of
Banaras and its neighbourhood are harassed. In
accordance with the sharia the ancient temples, are not to
be destroyed and new ones are not to be built and since our
innate kindness of disposition and natural benevolence, the
whole of our untiring energy and our upright intentions are
engaged in promoting the public welfare and bettering the
1757
condition of all classes, high and low, it is ordered that no
person should interfere with or disturb the Brahmins and
other Hindus so that they may, as before, remain in their
ancient occupation and engage themselves with peace of
mind in offering prayers for the continuance of our God-
gifted empire so that it may last forever (JPHS, V(1)., pp.
247-48).
20 Jumada II/1069 A.H./15 March, 1659 A.D."
1631. He contended that initially the existing policy of
Akbar, Jahangir and Shahjahan was followed by Aurangzeb, i.e.
neither to destroy existing Hindu religious places nor to allow
them to construct any new religious building but later on he took
a different stand and pursuant thereto demolished a large
number of Hindu temples.
1632. The total change of heart in reversing the earlier policy
said to have taken place almost after 10 years, i.e., with the start
of 11th year of his reign in April 1669. It has been discussed in
detail by Stanley Lane Poole in his book "Aurangzib-and the
decay of the Mughal Empire", first published in 1890,
reproduced in 1995, published by Low Price Publications, Delhi
on page 135-137. The relevant extract is as under:
"It seems to have been 1669 that the storm began to
gather. In April of that year Aurangzib was informed that
the Brahmans of Banares and other Hindu centers were in
the habit of teaching their 'wicked sciences,' not only to
their own people but to Muslims. This was more than the
orthodox Emperor could tolerate; but the severity of his
measures shows that he had been only waiting for a pretext
to come down like a thunderbolt upon the unfortunate
'heathen.' 'The Director of the Faith,' we are told, 'issued
1758
orders to all the governors of provinces to destroy with a
willing hand the schools and temples of the infidels; and
they were strictly enjoined to put an entire stop to the
teaching and practising of idolatrous forms of worship.' It
is not for a moment to be supposed that these orders were
literally carried out. Even the English Government would
not dare to risk such an experiment in India. All that was
done was to make a few signal examples, and thus to warn
the Brahmans from attempting to make proselytes among
the True Believers. With this object the temple of Vishnu at
Benares was destroyed and a splendid shrine at Mathura
was razed to the ground, to make room for a magnificent
mosque. The idols found in the temples were brought to
Agra and buried under the steps of the mosque, so that
good Muslims might have the satisfaction of treading them
under foot." (para 135-136)
"It is very difficult to trace the cause and effect of
Aurangzib's successive steps in his reactionary policy
towards the Hindus. In the eleventh year of his reign he
suddenly put a stop to the system of official chronicles,
which had been minutely recorded by historiographers
royal since the time of Akbar. Now, it was strictly forbidden
to write any chronicles at all, and those that have come
down to us were recorded in secret, or merely treasured in
the memory, and have all the confusion and fragmentary
character of haphazard reminiscences. There are probably
several links missing in the chain of events which
connected the first destruction of Hindu temples in 1669
with the imposition of the hated jizya or poll-tax on
unbelievers, a few years later. The revolt of the Satnamis is
1759
one of the few links that have been preserved by the secret
chroniclers, who were naturally disinclined to soil their
pens with the doings of 'unclean infidels.' Another event is
the rash interference of the Emperor in the matter of
Jaswant Singh's children." (pares 137-138)
1633. Sri P.N.Mishra also tried to take help from the
judgment of the District Judge Fyzabad in Suit 1885 since he
himself has visited the disputed premises on 18th March, 1886.
In para 7 and 8 of his written argument Sri Mishra formulated
his argument based on the above as under:
7. The District Judge of Faizabad who visited Sri
Ramjanmasthan/alleged Baburi Masjid on 18th March
1886 did not find any of the Inscriptions published by A.
Fuhrer in 1989 and by A. S. Beveridge in 1921. Said Ld.
Judge in his Judgment has recorded that the entrance to
the enclosure was under a gateway which bore the
superscription "Allah" immediately on the left as the
platform or Chabootra of masonary occupied by the
Hindus. His said finding is recorded in Judgment and
Order dated 18th March 1889 passed in Civil Appeal
No.27 of 1886 Mahanta Raghubardass, Mahant Janam
Asthan City Oudh VS. Secretary of State of India, Court
of Council and Mohd. Asghar by the said Judicial Officer
Mr. F.E.A. Chamier, District Judge Faizabad which
constitute pages 87 to 91 of the volume 10 of the
Documents of O.O.S. No. 4 of 1989 being Volume I of
the plaintiffs' documents. Relevant portion from page 89
of the said Volume being an extract of the said judgment
reads as follows:
"I visited the land in dispute yesterday, in the presence
1760
of all parties.
I found that the Masjid built by the Emperor Babar
stands on the border of the town Ajudhia-that is to say
to the west and south it is clean of inhabitations. It is
most unfortunate that a Masjid should have been built
on land specially held sacred by the Hindus, but as the
event occurred 356 years ago it is too late now to
remedy the grievance all that can be done is to
maintain the parties in status quo. In such a case as the
present one any (Sic) would cause more harm and
damage (Sic) of order than benefit. The entrance to the
enclosure is under a gateway which bears the
superscription "Allah" immediately on the left as the
platform or Chabootra of masonary occupied by the
Hindus. On this is a small superstructure of wood in
the form of a tent. This "Chabootra" is said to indicate
the birthplace of Ram Chan deer. Infront of the
gateway in the entry to masonary Platform of the
Musjid. A wall pierced (illegible) and therewith
railings divides the platform of the Musjid from the
enclosure in which stands the "Chabootra"."
Be it mentioned herein that said judgment is Judgment
per Incuriam as it has been passed in ignoratum of law.
Prior to annexation of Oudh to British Rule the Law of
Shar was law in force which law neither had rule of
Limitation nor did recognise adverse possession. Apart
from this Hindu law in respect of Debutter property also
did not recognise adverse possession. This principle of
Law had already been laid down by the Indian Courts of
Record as well as Privy Council, London as such said
1761
judgment passed in ignoratum of those judicial
pronouncement has no force of law. Moreover in the said
Suit the Disputed Structure was not subject matter of that
suit nor was declaration of title in respect thereof prayed
for.
8. In the aforesaid judgment recording of the Ld. Judge
the superscription "Allah" leaves no doubt that he had
inspected the disputed premises and Structure very
minutely and it is needless to say that if there would have
been alleged Inscriptions that would not have gone
unnoticed by him. Be it mentioned herein that according
to Hindus' sacred book "Allopanisad" "Allah" is one of
the several names of the almighty. Be it mentioned herein
that the "Allopanishad" has been reproduced by the
founder of Arya Samaj Maharshi Dayanand Saraswati in
his book "Satyarthaprakash" 2nd revised edition published
in Vikram Samvat 1939 i.e. 1882 A.D.. According to him
it was written during the reign of Emperor Akbar. The text
of "Allopanishad" as published on pages 556-67 of
'Satyarthaprakash' in "Dayanand-Granthmala published
by Srimati Paropakarini Sabha, Ajmer 1983 Edn. reads as
follows:
^^vFkkYyk si fu"knz O;k[;kL;ke%A
vLekYyka bYys fe=ko#.kk fnO;kfu HkÙksA
bYyYys o#.kks jktk iquÌZnq%A
gek fe=ks bYyka bYyYys bYyka o#.kks fe=LrstLdke%AA1AA
gksrkjfeUnzks gksrkjfeUnz egklqfjUnzk%A
vYyks T;s"Ba ijea iw.kZ czkg~e.ka vYyke~AA2AA
vYyksjlwyegkenjdcjL; vYyks vYyke~AA3AA
vknYykcwdesdde~A vYykcwd fu[kkrde~AA4AA
vYyks ;Ksu gqrgqRokA vYyk lw¸;ZpUnzloZu{k=k%AA5AA
1762
vYyk _"kh.kka loZfnO;ka bUnzk; iwoZ ek;k ijeeUrfj{kk%AA6AA
vYy% i`fFkO;k vUrfj{ka fo'o:ie~AA7AA
bYyka dcj bYyka dcj bYyka bYyYysfr bYyYyk%AA8AA
vkse~ vYykbYyYyk vukfnLo:ik; vFkoZ.kk';kek gaq àha tukui'kwufl)ku~
typjku~ vn`"Va dq# dq# QV~AA9AA
vlqjlagkfj.kh gqa àha vYyksjlwyegenjdcjL; vYyks vYyke~ bYyYysfr
bYyYyk%AA10AA
bR;Yyk si fu"kr~ lekIrkAA
1634. Be that as it may, the above discussion and the
material considered by us make it very clear that the foundation
of the entire history regarding construction of disputed building
by Babar in 1528 AD is based upon the inscriptions said to be
fixed thereon. The original text of the said inscriptions is not
available at all. At least it has not been produced before us from
any authentic source. The text of the said inscriptions published
in different books and historical work, we have discussed, show
several crucial discrepancies therein. The historians, it appears
being aware that Babar came to India in 1526 AD and visited
Ayodhya in 1528 AD formed opinion in majority and read the
text of the inscriptions that the date of construction of the
building therein is 1528 AD i.e. 935 AH. However, in the
earliest Journal of ASI, the text is not only different but the
period mentioned is also different i.e. 930 AH.
1635. Interestingly there are some work written in Urdu in
the 19th Century by some Muslim writers. Therein mostly they
have mentioned the period of construction of the disputed
building as 923 Hijri and further that it was constructed by the
Babar at the instance of Syed Musa Ashikan. One of such
document is titled as "Ameer Ali Shaheed Aur Marka
Hanuman Gari" by Shekh Mohammad Ajmat Ali Alvi
Kakoravi (written in 1886) revised by Dr. Zaki Kakoravi
1763
published in 1987 and on page 9/10 it says:
^^dqrqc ¼iqLrdsa½ lkfcdk ¼iwoZ½ ls ekywe gS fd ckn rlYyqr ¼dCtk½
l;~;n lkykj elÅn x+kt+h ds
lykrhus bLykfe;k us fcykn ¼'kgjksa½ fgUnqLrku tUur fu'kku esa tgka
dgha uewnh ¼volj½
- -- - ikbZ ogka #Du ¼lnL;½ bLykeh ds rkSj ij efLtn o [kkudkg o
eqlkfQj [kkus cuok fn, vkSj eqvfT+t+u ¼ckaxh½ o eqnfjZl j[k dj nhus
eksgEenh dks 'kk;k fd;k vkSj lkeku
fcnvr ¼u;k dk;Z½ - - - fd;k pqukaps ftl rjg eFkqjk fcUnjkcu ox+Sjg
dks [klks[kklkd ¼?kkl Qwl½
fcnvr ls lkQ fd;kA blh rjg QS+t+kckn vo/k esa tks cM+k -- - dk
edke Fkk] r[rxkg finj y{eu o jke Fkk cqr[kkus tUeLFkku esa
923 fgtjh es a l;~ ; n ewl k vkf'kdkW a ds ,greke esa efLtn
ljcq y an ckcjh rS ; kj gq b Z A iq j uwj jghA og fganqvksa esa lhrk dh
jlksbZ- - - -e'kgwj FkhA
rkjh[k + fcuk ^^[kS j ckd+h ** ¼923 fgtjh½ gS gq T tr ;knxkj
ls feykrh gS A **
1636. Thus the very basis of forming the view that the
disputed building was constructed in 1528 AD by Babar or at
his command by his agents founded solely on inscriptions
whose authenticity itself is not creditworthy.
1637. Unlike the historians who without any further probe,
Proceeded on the observations of Dr. Buchanan as published by
Martin in 1838, we do not find it possible to record a finding
that the building in dispute was constructed in 1528 AD by
Babar or any of his agents.
1638. If we summarize our reasons, we find firstly that
Babar in his chronological detail (to the extent it is available) in
"Baburnama" has mentioned various buildings which he got
constructed mainly at Agra where he stayed and made his
headquarter and in the nearby areas or else. Obviously, if some
1764
construction or alteration in an existing building was made by
any of his army officer or non-army officer who accompanied
him from Farghana, there could not have any occasion for him
to mention about the same in a work in which he recorded his
daily affairs. His period of rule in the then Hindustan is very
short, i.e., slightly more than four years. He being the founder of
the dynasty, later known as Mughal dynasty, obviously was
more interested in expansion of his reigning territory and not to
indulge in avoidable confrontation which strategically may have
added to his agony. A careful study of Baburnama show that
wherever possible he made friends among non-muslims also so
as to lessen rebels. Of course this was subject to the acceptance
of those non-muslim Rulers about his supremacy. Besides the
fact that no army commander of the name of "Mir Baqi", as
such is mentioned in Baburnama, we find that Baqi Shaghawal
who was made incharge of Oudh (Ayodhya) territory did not
have any rest at Ayodhya. From 28.03.1528 and onwards, for a
sufficiently long time, he remain on his toes chasing Bayazid
and others. He was granted leave in June 1529 AD by Babar. It
is the admitted case of the muslim parties that in a legendary
work of Goswami Tulsidas on Lord Rama, i.e.
'Ramcharitmanas' which came into existence in a very short
time after Babar, there is no mention of construction of a huge
mosque at Ayodhya by Babar or anyone else. We are using the
term "huge mosque" in the context of the place where the
disputed building was constructed.
1639. Then in two traveller's account of Finch and
Tieffenthaler also, this conspicuous miss cannot be overlooked.
The first reference of Ayodhya and in particular the fort of Lord
Rama at Ayodhya in the travellers account just after about 75
1765
years and more, i.e., of "William Finch" who visited India
between 1608 to 1611 AD. It is nobody's case that besides the
area which is known today as Mauja Ramkot there was any
other place where it was ever believed or seen by anybody the
alleged house or fort of Lord Rama. On the contrary, what has
been pointed out that in the first settlement of 1861 the site in
dispute was part of plot no. 161 which had a total area of more
than 9 Bighas. William Finch did not mention about any
recently constructed Islamic building or mosque in this area and
instead has referred to a house or fort which according to him
was constructed about 400 years ago and belief of Hindus as
birthplace of Ramchandar (Lord Rama). The period he mention
may be approximate, i.e., may or may not be very accurate but it
carries the period of the then existing building to 11th or 12th
century when Ayodhya was under the rule of Gaharwals. He
also mentions about Pooja and worship being performed by
Hindus (Brahmans) in the said area but there is no mention
about the existence of muslims or their religious place of a
recent construction in the said area. It is difficult to believe if
such a huge construction was existing at that time, the same
would have gone unnoticed by a person who has given so much
details of the area he visited at Ayodhya.
1640. Then comes the next available version of Nicolo
Minouchi who travelled India during the reign of Aurangzeb.
On the one hand it cannot be disputed that he has mentioned
about demolition of a temple at Ayodhya during the aforesaid
period but further particulars have not been given. It gives an
occasion to the learned counsels for the plaintiff (Suit-4) to
contend that the travellers account of Minouchi does not throw
any light that the alleged destruction of temple mention in his
1766
travellers account relates to the alleged Janambhumi temple and
none else. This argument is unexceptionable since Minouchi's
travellers account does not pin point any building or the area but
then there are some further material.
1641. Father Joseph Tieffenthaler, an Austrian traveller
visited India and remain here for more than two decades. In fact
he stayed in India till his death. His credentials which have been
made available to us through an internet printout of Wikipedia
site shows that he was a linguist and well conversant with the
languages like Persian and Sanskrit. It is this account which for
the first time mentions about the alleged temple at the birthplace
as well as its demolition by a muslim Ruler, in particular
Mughal Ruler and construction of a mosque thereat.
Tieffenthaler, however, say when he visited, the people in
locality said that the demolition caused by Emperor Aurangzeb
though some people said that it was Babar. Had the inscriptions
alleged to be fixed on the building in dispute at the time of its
construction would have existed thereat when Tieffenthaler
visited the site, it is difficult to conceive that he could have
written in his work whether it was Aurangzeb or Babar since he
himself could have noticed the correct facts by reading the
inscriptions for which he did not require any external help.
Tieffenthaler's work which though written like a travellers guide
between 1740-1760 and onwards but could not be seen by
subsequent historians or those who prepared historical data
perhaps for the reason that it remain unpublished in English. It
might have been published in the Latin itself, the language in
which Tieffenthaler wrote his diary but the publically known
work is the "French translation" which is said to have been
published in 1786. To us it appears that the building in dispute
1767
by the time Tieffenthaler came to Ayodhya had already been
constructed but the inscriptions were not there. Besides, even at
that time, inside the building in dispute, the Hindu religious
structure in the form of a 'Vedi' existed which was being
worshipped by Hindus. Here also it is remarkable that
Tieffenthaler though has noticed worship by Hindus but is
conspicuously silent about worship by muslims in the disputed
building.
1642. We tried to enquire from learned counsel for the
plaintiffs (Suit-4) as to how it could happen that a mosque was
constructed but inside the premises a Hindu religious structure
was allowed to remain as to be worshipped by Hindu public. In
the absence of any source material on this aspect no reply
obviously was forthcoming but to us it appears that though the
building in dispute was constructed but immediately thereafter
or after sometime it stood deserted by muslims. Hindus made
their entry and raised a religious structure in order to continue
with the sanctity of their belief that the place in dispute was the
birthplace of Lord Rama and that is how their worship
continued. It is inconceivable that at the time when the disputed
building was constructed the people who did so would have
allowed a Hindu religious structure inside the premises
particularly when the building which they constructed was an
Islamic religious place, i.e., mosque. We also find that Islamic
religious scriptures clearly prohibit same place fit for worship
by the persons of different faith and religion. We make it clear
our use of the word mosque herein these issues be not treated as
our finding since it being a separate issue shall be dealt with
later.
1643. Though it amounts to delving into some kind of
1768
conjectures but since here is a case which necessarily goes in
history and particularly when for sufficiently long time the
things are in dark, in the absence of anything contrary, we do
not find it impermissible to think in this manner. It would comes
within the domain of preponderance of probability.
1644. The position appears to be that when the building in
dispute was constructed, obviously the Islamic people, were in
power who constructed the building in dispute. They did not
allow or could not have allowed any Hindu religious structure to
exist within the premises of the disputed building. If it was done
after demolition of a Hindu religious structure, it is
inconceivable while demolishing such structure, some part
thereof would have been allowed to remain so as to be
worshipped continuously by Hindu people after entering the
premises of the mosque. Thus initially when it was constructed
no such structure could have existed but as soon as the local
Hindu people got opportunity, they created or made a symbolic
structure to continue with the worship according to their belief
with regard to the birthplace of Lord Rama and that is how
structure in the form of Vedi was there and noticed by
Tieffenthaler in his work which relates to the period of 1740-
1760 AD.
1645. The building in dispute, therefore, not constructed in
1528 AD or during the reign of Babar, the preponderance of
probability lie in favour of the period when Aurangzeb was the
Emperor since it is again nobody's case that such an action
could have been taken during the reign of Humaun, Akbar or
Shahjahan. Without entering into the wild goose chase on this
aspect suffice it to say that the building in dispute must have
come into existence before 1707 AD when the reign of
1769
Aurangzeb ended on his death. Tieffenthaler's visit to Ayodhya
is 35-55 years thereafter and this gave sufficient time in which
the things as we have indicated above could have happened. The
inscription on the disputed building either inside or outside was
not there otherwise there was no occasion that the same could
not have been noticed and seen by Tieffenthaler who himself
was quite conversant with the language in which these
inscriptions were written and found subsequently.
1646. Then comes the person who for the first time noticed
the above inscription, i.e., Dr. F. C. Buchanan. He was a
medicine man and, as his autobiography says, worked as
personal physician of Lord Wellesley at the end of 18th century.
He was entrusted with the work of survey of the territory within
the hold of East India Company in North-West provinces at the
commencement of 19th century. Obviously this was not his field
of expertise and, therefore, it can well be conceived that he
actually functioned as an overall Observer or Supervisor but in
effect must have been assisted/attended by a team of the persons
knowing the work of survey and also quite conversant with the
local tradition, languages etc. The survey continued for about 7
years, i.e., 1807-1814. The survey report said to have been
submitted in more than one set. It appears that the record of the
said survey sent to Calcutta office of East India Company as
also to its main office in London. At the time he conducted
survey, the area of Oudh as such was not within the reining
territory of East India Company but was part of the reining
territory of Nawab Vazir of Lucknow with whom East India
company had a kind of agreement entered in 1801. The area
towards Gorakhpur, Varanasi etc. was in the territory of East
India Company and the demarkating land appears to be the bank
1770
of river Saryu near Ayodhya as is evident from the observations
of Buchanan where he said that he did not undertook the
exercise of measurement etc. at Ayodhya as it would have
offended Nawab Wazir of Lucknow who was the reigning
authority of that area. It is Buchanan who for the first time
referred to an inscription wherefrom he could notice that the
disputed building was erected in 1528 AD at the command of
Babar though local people still at that time believed and said
that the same was constructed at the time of Emperor Aurangzeb
after demolishing a Hindu temple. When Buchanan visited
Ayodhya, i.e. between 1807-1814, the period of Aurangzeb was
about 100 years back while the period of Babar was about 275
years and more. It is difficult to conceive that the local people
were not conversant as to who was responsible for construction
or during whose reign the construction was made particularly
when the matter was comparably recent. The people's memory
is not so short and fade away with such a pace that they cannot
recollect the events of just 50-60 years back. During the period
of Buchanan it was a matter of just 100 years or more.
Comparatively period of Aurangzeb was quite recent. Therefore,
Buchanan's approach to ignore local belief that the building in
dispute was constructed during the reign of Aurangzeb, in the
absence of any concrete material, and not to make any further
probe cannot be appreciated. However some margin has to be
given to him since he was not an expert historian. It may happen
that on plain reading of text, the period mentioned therein found
923 AH or 930 AH but he, knowing the period of Babar took
upon himself to correct it.
1647. Moreover, Buchanan also cannot be said at fault since
he had a reason to contradict this local belief based on an
1771
inscribed document which he found fixed on the building in
dispute. To us it appears that this inscription must have been
fixed in the building in dispute sometimes between the visit of
Tieffenthaler and survey of Dr. Buchanan. In order to give
importance and antiquity to the building so as to avoid local
hatred and conflict the inscript writer or the person responsible
for it tried to co-relate it with the reign of Babar but due to lack
of information or mistake, the period got written wrongly, i.e.,
923 A.H. or 930 A.H. and he also mention a name i.e. Mir Baki
or Mir Khan which did not find mention in Babar's "Tuzuk-i-
Babri".
1648. Whether Buchanan actually noticed 923 A.H. or 935
A.H., we find difficult to record any concrete finding in the
absence of any authenticated text of such inscription as was
available to Buchanan. To us it appears when he noticed the
name of Babar mentioned in the inscription even if the period in
the inscription would have written as 923 A.H. he might have
got it corrected in the light of the known period of visit of Babar
at Ayodhya. This part of our observation as to what Buchanan
might have done at that time is obviously in the realm of
conjecture and we are conscious about it, but for us it is suffice
to mention that in the absence of an authenticated text of the
inscription as noticed by Buchanan, the only thing relevant for
us is that the inscription was noticed for the first time by
Buchanan and at that time he tried to contact the local people
with respect to the period and person who constructed the
disputed building. He was told about Aurangzeb but he
discarded it on the basis of inscription and said that it is Babar
and not Aurangzeb as locally believed. It is again nobody's case
that the inscription of the period of Buchanan was replaced or
1772
changed at any later point of time atleast when it was so noticed
and read by A. Fuhrer.
1649. In the meantime, we find that this text has been
referred to in certain books written by muslim writers after 1855
AD. Without entering into the question whether those writers
were well known Historians or merely story writers or whatever
the case may be, for us suffice it to mention that in all these
books they have mentioned the period of construction contained
in the inscription as 923 A.H. Obviously it cannot be said that
those writers who have written their books in Persian and
Arabic were not capable of correctly reading the inscription and
they committed a mistake in reading.
1650. In brief, we summarize the things and the position
boils down as under:
i. Dr. Fransis C. Buchanan said to be first person who
read and collect the transcription but this text duly proved
in accordance with law is not available to us. However,
this found the basis of contradicting the local belief as it
prevail till then i.e. around 1810 AD that the building in
dispute was constructed during the reign of Aurangzebe
after demolition of a temple was wrong and it was actually
Babar, as borne out from the inscription.
ii. Next is A. Fuhrer. He was the first archaeologist
who read and translated in 1889/1891 and got published
three inscriptions alleged to be fixed on Babari Masjid
which was alleged to be built under command of Emperor
Babur at the site of Sri Ramjanmasthan.
A. Fuhrer's translations and introductory notes thereto
read as follows:
"Babar's- Masjid at Ayodhya was built in A.H. 930,
1773
or A. D. 1523, by Mir Khan, on the very spot where the
old temple Janamasthanam of Ramchandra was
standing . The following inscriptions are of interest.
Inscription No.XL written in Arabic character over the
mihrab of the masjid it gives twice the Kalimah:-
"There is no God but' Allah, Muhammad is His
Prophet"
Inscription no.XLI is written in Persian poetry, the
meter being Ramal, in six lines on the member, right-
hand side of the masjid.
"1.By order of Babar, the king of the world,
2. This firmament-like, lofty,
3. Strong building was erected.
4. By the auspicious noble Mir Khan.
5. May ever remain such a foundation,
6. And such a king of the world."
Inscription No.XLII is written in Persian poetry ,the
metre being Ramal, in ten lines, above the entrance
door of the masjid. A few characters of the second and
whole third lines are completely defaced.
"1. In the name of God, the merciful, the clement.
2. In the name of him who...; may God perpetually
keep him in the world.
3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. Such a sovereign who is famous in the world, and in
person of delight for the world.
5. In his presence one of the grandees who is another
king of Turkey and China.
6. Laid this religious foundation in the auspicious Hijra
930.
1774
7. O God ! May always remain the crown, throne and
life with the king.
8. May Babar always pour the flowers of happiness;
may remain successful.
9. His counselor and minister who is the founder of this
fort masjid.
10. This poetry, giving the date and eulogy, was written
by the lazy writer and poor servant Fath-allah-Ghori,
composer."
The old temple of Ramachandra at Janamasthan must
have been a very fine one, for many of its columns
have been used by the Musalmans in the construction
of Babar's masjid. These are of strong, close-grained,
dark- coloured or black stone, called by the natives
Kasauti, "touch-stone slate," and carved with different
devices. They are from seven to eight feet long, square
at the base,centre and capital, and round or octagonal
intermediately.
(The Sharqi Architecture of Jaunpur by
A.Fuhrer Ph.D. p 67-68)
ii. Third is Annette Susannah Beveridge was the
second british scholar who in 1921 published texts of
two Inscriptions purported to be of alleged baburi Mosque
which were supplied by the Deputy- Commissioner of
Fyzabad alongwith English Translation and
Transliteration thereof done by a Muslim. In her said book
A.S. Beveridge before giving Text and Translation of the
alleged two Inscriptions writes as follows:
" Thanks to the kind response made by the Deputy-
Commissioner of Fyzabad to my husband's enquiry
1775
about two inscriptions mentioned by several
Gazetteers as still existing on 'Babur's Mosque" in
Oudh, I am able to quote copies of both."
After giving text and transliteration of an Inscription he
gives Translation with her exaggerating value thereof as
follows:
"The translation and explanation of the above,
manifestly made by a Musalman and as such having
special value, are as follows:-"
"The inscription inside the Mosque is as follows:-"
After giving its Text and Transliteration she translates the
alleged First Inscription as follows:
"1. By the command of the Emperor Babur whose
justice is an edifice reaching up to very height of the
heavens,
2. The good-hearted Mir Baqi built this alighting-place
of angels;
3. Bavad khair baqi ! (May this goodness last for
ever!) The year of building it was made clear likewise
when I said Buvad khair baqi (=935)."
"The inscription outside the Mosque is as follows:-"
After giving its Text and Transliteration she translates
the alleged Second Inscription as follows:
"The explanation of the above is as follows:-"
"In the first couplet the poet praises God, in the
second Muhammad, in the third Babur - there is a
peculiar literary beauty in the use of the word la-
makani in the 1st couplet. The author hints that the
mosque is meant to be the abode of God, although
he has no fixed abiding-place. - In the first hemistich
1776
of the 3rd couplet the poet gives Babur the
appellation of qalandar, which means a perfect
devotee, indifferent to all worldly pleasures. In the
second hemistich he gives as the reason for his being
so, that Babur became and was known all the world
over as a qalandar, because having become Emperor
of India and having thus reach the summit of
worldly success, he had nothing to wish for on this
earth.
The inscription is incomplete and the above is the
plain interpretation which can be given to the
couplets that are to hand. Attempts may be made to
reed further meaning into them but the language
would not warrant it."
1651. The text and translation of these above two authorities
are evidently distinct and different. Beveridge's claim that the
inscriptions were well existing on Baber's mosque in terms as to
be understood about the existence of inscriptions and not for the
text since admittedly she had not seen the inscriptions and its
text but has collected the same as a secondary evidence.
1652. Then next comes the Civil Judge, Faizabad who has
mentioned the text of the two inscriptions in his judgment dated
30.03.1946 in R.S. No.29 of 1945. He has also discussed the
same as under:
"Lastly there are the two Inscription in the mosque which
have been reproduced in my inspection notes. These are
also referred to in the Gazettes and according to the date
in the inscription on the pulpit it was built in 923 Hijri,
while according to other it was in 935 H. corresponding
with 1528 A.D. These inscriptions were the sheet-anchor
1777
of the plff's case but I am of the opinion that they are
inconclusive.
The 1st inscription contains three couplets in Persian and
when translated runs as follows:
"By the order of Shah Babar, whose justice went up to the
skies (i.e. was well known), Amir (Noble) Mir Baqi, of
lofty grandeour, built this resting place of angels in 923
Hijri."
The 2nd inscription is more elaborate and contains usual
high flown language on eulogy of Babar & describe Mir
Baqi of Isphahan as his adviser and the builder of the
mosque. This inscription no doubt s the plff's case,
because it does not say that it was by the order of Babar
shah & it only refers to the reign of Babar but the 1st
couplet in the 1st inscription near the pulpit, clearly
supports the theory that Babar had ordered the building of
the as stated in the Gazettes and the settlement report."
1653. By this time, damage of inscription in 1934 and its
restoration is admitted to the parties. Whether the restoration
was accurate and if so on what basis is not known.
1654. Then next come Dr. Z.A. Desai's edited work in
"Epigraphia Indica Arabic & Persian Supplement 1964-65"
which gives another story with much difference. Paras 17, 18
and 19 of written argument:
17. Dr. Z.A. Desai informs that Fuhrer's reading does
not appear to be free from mistakes. But he does not
specify the mistakes committed by Fuhrer in his reading
of the texts and translations thereof. From the scrutiny of
Dr Desai's translation it appears that Dr. Desai in 4th line
has added "and" between 'Mir' and 'Khan' and "Baqi"
1778
after 'Khan'. So he has converted 'Mir Khan' into 'Mir
Khan Baqi'. And in the 3rd line he has added "of God"
after 'this lasting house' to make it a mosque. He has
neither given any rational explanation for his said
conversion of 'Mir Khan' into 'Mir Baqi' nor He has
exhibited as to how the Fuhrer's translation is different
from the original text.
18. Dr. Z.A. Desai In his detailed discussion on all
inscriptions of Babur's regime writes an introduction that
a rough draft of an article of his predecessor Maulivi M.
Asuraf Hussain who retired in 1953 was found amongst
sundry papers in his office with a note that it might be
published after revision by his successor. Consequently,
he claims, that he has published these inscriptions with
translation after extensive revision and editing, but
nowhere has he mentioned that which portions of the
reading of these inscriptions are his own revision and
editing and on what ground these revisions have been
made. About inscriptions at Ayodhya he writes that there
are three inscriptions in the Babari Mosque out of which
the two were completely destroyed by the Hindu rioters in
1934 A.D. However, he managed to secure an ink-
stampage of one of them from Sayyid Badru'l - Hasan of
Fyzabad. He writes that the present inscription restored by
the Muslims Community "is also slightly different
from the original owing perhaps to the incompetence of
restorers in deciphering it properly." When Dr. Desai
himself admits that the restored inscription is slightly
different from the original, then his claim that the restored
inscription fixed on Baburi mosque in or after 1934 is the
1779
dextrously rebuilt of the original one alleged to be fixed
on since the days of Babur becomes meaningless and un-
trustworthy. In fact, none of the Inscriptions was fixed on
the Disputed Structure which has all along been sacred
place of the Hindus known as Sri Ramajanmasthan
Temple.
19. Dr. Desai informs that he has based his translation
on the inscription of Fuhrer, although he says that Fuhrer
must have been misinformed to affirm that; "few
corrections of the second and the whole third line
completely defaced". Even if it is supposed that some
words in the 2nd line and the whole third line are defaced,
there is not much impact in the meaning of the text of the
inscription. But here we do find that Dr. Desai has
extensively changed the meaning of the translated
passage. It is quite different from what Fuhrer had
translated. Fuhrer had written that it is in ten lines, above
the entrance door of the Masjid. He has made its
translation in ten separate lines. Dr. Desai has
considerably changed the meaning of the text without
pinpointing how Fuhrer's translation was wrong. Since
beginning and the end of the text are the same and the
inscription is said to be the same and there is no major
variance in Fuhrer's English translation from the Persian
text, Dr. Desai's translation appears to be arbitrary. He has
changed the date of the inscription 930 H. (1523 A.D.) to
935A.H. Without assigning any reason. In Dr. Desai's
translation the name of Mir Baqi the second Asfaq appears
where as in the original Persian text Mir Baqi's name does
not appear at all. Then Babar is called a Qalandar in this
1780
inscription which is not found in Fuhrer's translation.
After 4th line Dr. Desai does not follow the line system
and at the end he mentions Fathu'llah Muhammad Ghori
as the humble writer of this inscription. His name figures
in the Fuhrer's translation too. He goes on expanding how
Babar was called Qalandar but he does not explain how
the changes have taken place in the inscription which was
not in the text read by Fuhrer.
1655. Sri P.N.Mishra has also requested this Court to take
judicial notice of the fact that almost in all the inscriptions,
which have been recovered by ASI said to be of the period of
Babar mentions his name with much honour and deference. This
he has demonstrated from various inscriptions referred to in
"Epigraphia Indica Arabic & Persian Supplement 1964-65"
(Supra). He has summarized this part of argument in para 20 of
written argument as under:
"In the above mentioned Inscriptions the Emperor's name
Zahiru'd-Din Muhammad Babur Badshah Ghazi which
has been recorded almost in all other available Inscription
of his period, is missing from which it appears that the
forgers of later days were not familiar with the correct
name of the said Emperor.
In the Inscription, dated A.H. 933 i.e. 1526-27 A.D. found
on the wall of a well from Fatehpur Sikri being Plate No.
XV(a) in its 1st line his name has been recorded as
follows:
"Zahiru'd-Din Muhammad Babur Badshah Ghazi"
(Epigraphia Indica Arabic & Persian
Supplement 1964 and 1965 at page-51)
In the Inscription of A.H. 934 i.e. 1527-28 A.D. found on
1781
a mosque from Panipat being Plate No. XVI(b) in its 1st
line his name has been recorded as follows:
"Zahiru'd-Din Muhammad Babur Badshah Ghazi"
(Ibid.p. 55)
In the Inscription dated A.H. 934 i.e. 1527-28 A.D. found
on a mosque from Rohatak being Plate No. XVI(a) in its
2nd line his name has been recorded as follows:
"Zahiru'd-Din Muhammad Babur Badshah Ghazi"
(Ibid.p. 56-7)
In the Inscription dated A.H. 934 i.e. 1528 A.D. found on
a mosque from Rohtak being Plate No. XVII(a) in its 1st
line his name has been recorded as follows:
"His Majesty Babur Badshah Ghazi"
(Ibid.p. 57)
In the Inscription of A.H. 935 i.e. 1528-29 A.D. found on
a mosque from Palam(Delhi) being Plate No. XVIII(a) in
its 1st and 2nd lines his name has been recorded as
follows:
"Zahiru'd-Din Muhammad Babur Badshah Ghazi"
(Ibid.p. 62)
In the Inscription of A.H. 935 i.e. 1528-29 A.D. found on
a mosque from Pilakhna being Plate No. XVIII(c) in its
3rd line his name has been recorded as follows:
"Zahiru'd-Din Muhammad Babur Ghazi"
(Ibid.p. 64)
In the Inscription dated A.H. 936 i.e. 1529 A.D. found on
a mosque from Maham being Plate No. XIX(a) in its 1st
and 2nd lines his name has been recorded as follows:
"Zahiru'd-Din Muhammad Badshah Ghazi"
(Ibid.p. 65)
1782
1656. Regarding transportation of inscription from one place
to another and affixing the same to raise the claim with respect
to building on the basis of certain facts, which actually did not
exist, he pointed out that this kind of practice has been noticed
on various occasions. He sought to fortify it by referring to
certain incidents mentioned in para 21 and 22 of his written
argument:
21. It is not uncommon for ruffians to fix old
Inscriptions on newly built and / or converted mosques.
'Epigraphia Indica Arabic & Persian Supplement 1964
and 1965' at its pages 55 and 56 records that two
Inscriptions dated 1934 fixed on two mosques at Rohtak
did not belong to those mosques but have been fixed
thereon. relevant extracts from said book read as follows:
"Among the historical buildings, two mosques, viz.,
Masjid-i-Khurd in the Fort2 and Rajputon-ki-Masjid, a
new mosque in the city area, bear inscriptions of the
time of Babar. The one on the Masjid-i-Khurd consists
of three lines inscribed on a tablet measuring 53 by
23cm. Which is fixed over the central archway
outside3. The slab is badly damaged and considerable
portion of the text has peeled off. It is, therefore, not
possible to decipher it completely, but this much is
certain that it refers to the construction of a mosque in
the reign of ahiru'd-Din Muhammad Babur by one
Qadi Hammad. If the Tughluq inscription occurring on
the outer archway is in situ, this epigraph may not
belong to this mosque." (Ibid.p.56)
"The other epigraph of Babur in Rohtak is from the
Rajputon-ki-Masjid. Fixed over its central arch, the
1783
tablet, measuring 1.1 m. By 21 cm., does not belong to
the mosque, but it was rather intended as the tombstone
of Masnad-i-'Ali Firuz Khan. It is inscribed with two
lines of Persian which are slightly affected by the
weathering of the stone. The text records A.H. 934
(1528 A.D.) as the date of the construction of the tomb
of Masnad-i-Ali Firuz Khan, son of Masnad-i-Ali
Ahmed Khan and grandson of Masnad- i-Ali Jamal
Khan and refers itself to the reign of Babur. The style of
writing is ordinary Naskh. I have read it as follows:-
TEXT
Plate XVII(a)
...............................
TRANSALATION
(1) Completed was in the reign of His Majesty Babur
Badshah Ghazi, may Allah perpetuate his kingdom and
sovereignity, this noble edifice, (viz.) the tomb of His
Excellency Masnad-i-Ali3 Firuz Khan, son of Masnad-
i-Ali Ahmad Khan, son of Masnad-i-Ali Jamal Khan,
the deceased, all of them, on the 10th of the month of
Rabiu'l-Akhar, year (A.H.) four and thirty and nine
hundred (10th Rabi'II A.H. 934 = 3rd January 1528
A.D.). (Ibid. P. 57)
22. In 'Epigraphia Indica Arabic & Persian
Supplement 1964 and 1965' at its pages 19 and 20 S.A.
Rahim reports that at Fathabad near Chanderi in Guna
district of Madhya Pradesh, stands the partially ruined
palace known as Kushk-Mahal and Inscrption fixed
thereon are not dated back to its construction but have
been affixed thereon from time to time either by the
1784
visitors or by the Governors thereof. Relevant extracts
from his said reprt read as follows:
"It would not be, however, wholly correct to say that the
Kushk-Mahal does not bear any inscription. There are
about a score of places on the walls enclosing the stair-
cases, referred to above, which bear short inscriptions.
The rubbings of some of these were found in the
bundles of old estampages which werer transferred to
our office, from the Office of the Government
Epigraphist for India, Ootacamund, South India, who in
his turn seems to have received them quite some time
back from the Archaeological Department of the
erstwhile Gwalior state. I prepared fresh rubbings of
these records when I toured some places in Madhya
Pradesh, including Chanderi, in November 1962. Of
these, some are mere repetitions of the same text and as
such have been excluded from this purview. The
remaining four inscriptions are edited here for the first
time.
These inscriptions raise an important question, as to
whether they are contemporary with the building or not.
They do not appear to be so, because they are not
inscribed on tablets set up on the walls, nor are they
found incised on prominent places on the monument. A
building of such magnificence would have had, if at all
it was so planned, an inscription of proportionate
prominence. This does not rule out the possibility,
however, of the existence of an epigraph on the
monument, for it is possible that it had one and may
have disappeared since. Moreover, the texts of the
1785
inscriptions under study are also vague on this point, for
they do not make any explicit reference to the palace-
building or its construction. In view of these facts, it
appears more likely that these records are either visitors'
etchings or some sort of mementos which the governors,
the palace-guards or some other officials might have
desired to leave on the stone.
Fortunately, one of these four records is dated, and since
the same penmanship is employed in the other three
records, they can also be safely taken as having been
inscribed at about the same time or at short intervals.
Their language is Persian and style of writing cursive
Naskh. The wear and tear of time has affected the stone,
resulting into partial obliteration of some of the letters,
particularly in the first inscription.
The contents of these four epigraphs classify them into
two groups: one, of the first inscription, and the other of
the remaining three. The first refers itself to the
governorship(amal) of Khan-i-A'zam Sharaf Khan
Sultani and the superintendence (shahnagi) of one
person whose name is not very legible; it seems to be
Raja, (son of) Shams, (son of) Fath. The name of the
writer which is also not clear, appears to be Shiv Sing(?)
Gulhar. This inscription is dated 1489-90. The three
records of the other group refer, between themselves, to
the governorship of Malik Mallu Sultani and
superintendence of Sarkhail Shariqi Mulki and quote
Gulhar Jit(?) Dev, as the scribe. They are undated and
hence, it is difficult to state positively if they are earlier
than the above dated inscription or not." (Ibid. P.19-20)
1786
1657. We may place on record that on this aspect of the
matter the learned counsels appearing on behalf of the Muslim
parties in their rejoinder arguments could not give any
substantial reply. They said that the matter involves historical
facts. The inscriptions, their text, have been noticed in various
history books. They have no other material to support the plea
that the building in dispute was constructed by Babar in 1528
AD or at his command by his commander or his agent Mir Baki.
They also submit that since this historical event has not been
doubted for the last more than one and a half century, this Court
may not be justified in recording a finding disturbing the
historically admitted and believed fact as the Court is not expert
in the matter of history and therefore, there should not be any
venture on the part of the Court on this aspect.
1658. The later part of the argument that for the last more
than one and a half century, the documents, which are available
to us, does not show that the Historians doubted about the
building in dispute was constructed during the reign of Babar.
But simultaneously this is also proved that all have proceeded
mechanically and without properly scrutinizing the texts of the
inscriptions, as reported from time to time. The things have been
taken as granted. It is also true that the incident of destruction of
the temple and construction of a mosque at the disputed place
was first noticed by Tieffenthaler in the second half of 18th
Century. By that time Aurungzebe's rule was much nearer than
Babar's reign. The local belief in respect to recent event
normally is more reliable then much older one. This belief was
so strong that it continued thereafter for the last 50 years and
around 1810 AD, when Dr. Buchanan visited Ayodhya he also
found the same. It is he, who for the fist time sought to
1787
controvert the local belief by bringing into picture Babar as the
person responsible for the demolition of the temple and
construction of mosque at that site. Subsequent writers were
mostly petty employees of East India Company i.e. Robert
Montgommery Martin or the British Government i.e.
H.H.Wilson etc.
1659. During the reign of British Government, names of
Aurangzebe and Babar, both were taken for Ayodhya, but tried
to be a justified in respect to different buildings. The Indian
Historians basically have followed what was written as per the
observations of Buchanan. Nobody made any detailed
investigation whatsoever. At least none tried to find out the
actual events which took place and the correct historical facts.
1660. Normally, this Court would be justified in following
the opinion of Expert Historians particularly when it covers a
sufficiently long time, but when directly a historical issue is
raised before it and this Court, as a matter of necessity, has no
option but to find out the correct historical events to the extent
of accuracy as much as possible, we cannot proceed blindly to
follow what has been written by earlier Historians ignoring all
other aspects, some of which we have already discussed. In fact,
it is for this reason that the biographical details of some of the
alleged history writers, we have mentioned in the early part of
this judgment. Had there been two views possible we would not
have hesitated in following the view which has prevailed for
such a long time but where we find, considering all the relevant
material, that the view, which has prevailed for such a long time
apparently unbelievable and unsubstantiable, followed by the
concerned authors and Historians without a minute scientific
investigation, we cannot shut our eyes to such glaring errors and
1788
record a finding for which we ourselves are not satisfied at all.
1661. In fact the doubts created otherwise are so strong and
duly fortified with relevant material that we have no hesitation
in observing that they surpass the required test to become cogent
evidence to prove a fact otherwise.
1662. Before concluding we may also deal with one aspect
which has been raised though with caution from both the sites,
i.e., the legal status and evidentiary value of the White Paper
published by Government of India as well as various gazetteers.
1663. First we come to the White Paper issued in February,
1993 by the Government of India with the title "White Paper on
Ayodhya".
1664. In Chapter I "Overview" paras 1.1 and 1.2 read as
under:
"1.1. Ayodhya situated in the north of India is a township
in District Faizabad of Uttar Pradesh . It has long been a
place of holy pilgrimage because of its mention in the epic
Ramayana as the place of birth of Shri Ram. The structure
commonly known as Ram Janma Bhoomi-Babri Masjid was
erected as a mosque by one Mir Baqi in Ayodhya in 1528
AD. It is claimed by some sections that it was built at the
site believed to be the birth-spot of Shri Ram where a
temple had stood earlier. This resulted in a long-standing
dispute."
"1.2. The controversy entered a new phase with the
placing of idols in the disputed structure in December,
1949. The premises were attached under section 145 of the
Code of Criminal Procedure. Civil suits were filed shortly
thereafter. Interim orders in these civil suits restrained the
parties from removing the idols or interfering with their
1789
worship. In effect, therefore, from December, 1949 till
December 6, 1992 the structure had not been used as a
mosque."
1665. In Chapter II "Background" para 2.13 and 2.15 read as
under:
"2.13. As has been mentioned above, Hindu structures of
worship already existed in the outer courtyard of the RJB-
BM structure. On the night of 22nd/23rd December, 1949,
however, Hindu idols were placed under the central dome
of the main structure. Worship of these idols was started on
a big scale from the next morning. As this was likely to
disturb the public peace, the civil administration attached
the premises under section 145 of the Code of Criminal
Procedure. This was the starting point of a whole chain of
events which ultimately led to the demolition of the
structure. The main events of this chain have been
summarised in Appendix-1."
"2.15. The Hindu idols thus continued inside the disputed
structure since 1949. Worship of these idols by Hindus also
continued without interruption since 1949 and the structure
was not used by the Muslims for offering prayers since
then. The controversy remained at a low ebb till 1986 when
the District Court of Faizabad ordered opening of the lock
placed on a grill leading to the sanctum-sanctorum of the
shrine. An organisation called the Babri Masjid Action
Committee (BMAC), seeking restoration of the disputed
shrine to the Muslims came into being and launched a
protest movement. The Hindu organisations, on the other
hand, stepped up their activities to mobilise public opinion
for the construction of a Ram temple at the disputed site."
1790
1666. Similarly Chapter I para 1.14 refers to the excavations
conducted by Prof. B.B. Lal at Ayodhya and Chapter II paras
2.6, 2.7, 2.8, 2.9 and 2.10 refers to certain more facts as under:
"1.14. The other controversy related to the
excavations conducted by Prof. B.B. Lal at Ayodhya. His
discovery of some pillar bases close to the disputed
structure was cited by VHP to support its case. The
authenticity of this finding was, however, disputed by
AIBMAC which alleged that its historians had been denied
the opportunity to examine the original record relating to
this excavation. This was settled by making available
material relating to Prof. Lal's excavations to the experts
of both sides."
"2.6. There was a minor battle in this part of Ayodhya (Kot
Ram Chandra) in 1855 in which a large number of
casualties had taken place. A 3-man inquiry report of this
incident is available on the records of the East India
Company (and a copy is in the National Archives)."
"2.7. At some stage during the history of the RJB-BM
structure a portion of its compound was occupied by Hindu
structures of worship, viz Ram Chabutra and Kaushalya
Rasoi. The presence of these structures is marked in court
documents relating to a suit filed by Mahant Raghuvar
Dass in 1885. These structures were in existence till
December 6, 1992. There are indications that these
structures were considerably older but the evidence on this
point is not conclusive. Some Survey records of 1807-14
have come to notice in which the disputed site has been
marked as 'Yanmasthan', i.e. Janmashtan."
"2.8. It is also established that the dispute between Hindus
1791
and Muslims over this structure led to communal riots in
1934 in which the structure suffered some damage which
was later repaired."
"2.9. The structure and its appurtenant land were notified
as a Sunni Muslim Wakf in 1944. The validity of this
notification has been called into question in court
proceedings."
"2.10. The Ram Janma Bhoomi-Babri Masjid structure
contained some architectural elements, particularly
fourteen black stone pillars that were said to be part of a
non-Islamic religious structure of 11th -12th century AD.
The VHP argued that this constituted evidence that the
disputed structure was built after destruction of a temple.
The AIBMAC, however, argued that there was nothing to
suggest that all these architectural elements belonged to a
single structure standing at this very site. These could have
belonged to different structures in other areas."
1667. Sri P.R. Ganpathi Ayer and Sri K.N. Bhat, Senior
Advocates sought to rely on the above report to show the
structures already existing in the disputed area and some other
historical events.
1668. Similarly, the factum of construction of the disputed
building in 1528 AD mentioned in para 1.1 of the said paper is
referred by the other side. The question is, what is the legal
status of the document, how far the contents thereof can be
relied on by the parties in a Court of Law in respect to certain
facts which is are to be adjudicated and whether a historical or
otherwise facts mentioned in a White Paper published by
Government of India is binding and conclusive so far as that fact
relating to occurrence or non-occurrence of an event etc. is
1792
concerned.
1669. No provision has been shows to us which cover a
White Paper issued by the Government.
1670. The word "White Paper" has been defined in "Words
and Phrases" Permanent Edition, Vol. 45, published by St.
Paul, Minn. West Publishing Co., at page 127 as under:
"White Paper: Ballots upon paper tinged with blue,
which has ruled lines not placed there as marks to
distinguish the ballots, are upon "white paper," within the
meaning of Act 1849, p. 74, § 15, providing that no ballot
shall be received or counted unless the same is written or
printed upon while paper without any marks thereon
intended to distinguish one ballot from another. People v.
Kilduff, 15 III. 492, 501, 60 Am. Dec. 769."
1671. In "DK Illustrated Oxford Dictionary" published by
Oxford University Press, at page 952:
"White Paper- Government report giving
information or proposals on an issue."
1672. In "The New Lexicon Webster's Dictionary of the
English Language" (1987), published by Lexicon Publications,
Inc. at page 1122:
"White paper-an informative government report
issued on a matter which has received official
investigation."
1673. In "The Layman's Dictionary of English Law" by
Gavin McFarlane" (1984), published by Waterlow Publishers
Limited at page 314:
"White Paper-A governmental publication giving
details of some topic which is to be laid before
Parliament."
1793
1674. On the one hand it is a public document issued by the
Government of India and, therefore, no doubt it is true, that, it
can be looked into by a Court of Law. Even if the parties have
not referred to it, judicial cognizance of such a document can be
taken. A Full Bench of Punjab High Court in Sukhdev Singh
Vs. Union Territory, Chandigarh, AIR 1987 Punjab and
Haryana 5 has said:
"15. What the White Paper describes can judicially
be taken note of on which there can be no two opinions...."
1675. However, there is no authority to show that the facts as
given in White Paper are to be treated as correct in a Court of
Law where those facts or related facts are disputed in a pending
adjudication. No provision has been shown whereunder
anything contained in a White Paper published by a Government
may be taken to be a proved fact. We are not apprised of any
authority whatsoever showing the legal status of a White Paper
except that it is a public document under Section 74 of the
Evidence Act. About the value of the facts or factual statements
contained therein, to our mind, the things would depend on the
nature of the facts stated in a White Paper and the context.
Something concerning the governmental activities, if are
mentioned in a White Paper which has been issued by that very
Government, a presumption may lie that the facts relating to that
body must have been correctly mentioned therein. This
presumption also, however, is rebuttable and it is always open to
anyone to contradict such a statement of fact and lead evidence
to disprove it. Then there may be facts relating to history or
historical events, the geographical position of the territories etc.
as also the condition of the subject/people etc. The well known
historical facts which are duly supported with other history
1794
books may be taken to be correct. Similarly in respect to the
geographical position of the State the concerned government is
more competent to tell about its accuracy than any individual.
However, the facts historical or otherwise in respect to
individual or group of individuals, and/or about the property
matters of the subject, we have no manner of doubt that in such
cases, at the best, the Court will presume that the government
has mentioned those facts based on the record available to it but
in case of dispute such statement would have no relevance and
shall not be used for the advantage/disadvantage to any party.
The dispute has to be considered by the appropriate judicial
authority in the light of the evidence led before it. The facts
mentioned in White Paper, depending upon the nature, at the
best, may be used as a corroborating evidence but not otherwise.
1676. Then comes the gazetteers in respect whereto some of
the authorities we have already discussed and noticed above. At
this stage suffice it to mention that the facts contained in a
gazetteer do not represent the conclusive status and correctness
of those facts but again they have to be looked into and decide
by a Court of Law based on the evidence available before it. The
gazetteer may be considered as a relevant evidence but the
historical, cultural and other facts, which may have some
reflection on the rights, privileges etc. of individual or group of
individuals, there the matter has to be considered by a Court of
Law in the light of the evidence made available to it and if
corroborated by other reliable evidence, the facts of history etc.
contained in a gazetteer may be looked into. Gazetteers,
published under the authority of the Government, we have no
hesitation in treating the same to be a "public document" under
Section 74 of the Evidence Act but then the contents thereof
1795
cannot be taken on their face value and cannot be relied to prove
a particular aspect of the matter unless it is corroborated.
1677. Sri Ayer has relied on Section 87 of the Evidence Act
to contend that the facts stated in a gazetteer may be presumed
to be correct unless proved otherwise since the gazetteers are
relevant for the purpose of Section 13 of the Evidence Act
having noticed the faith of the people and the historical facts
therein. To the extent that the gazetteer may be treated to be
relevant and one of the piece of evidence, we may not have any
objection but to suggest that the facts stated in a gazetteer may
presume to be correct unless proved otherwise by applying
Section 87 of the Evidence Act, we find it difficult to accept.
Where the rights of the individuals or group of individuals
pertaining to property dispute are under challenge, the facts
mentioned in a gazetteer may be considered to be a relevant
piece of evidence but not beyond that.
1678. In the light of the above we do not find that either the
Government of India's White Paper published in 1993 or various
gazetteers, merely for mentioning one or the other facts, can be
taken to be correct on its face value unless corroborated with
cogent evidence.
1679. In the above facts and circumstance, it is difficult to
record a finding that the building in dispute was constructed in
1528 AD by or at the command of Babar since no reliable
material is available for coming to the said conclusion. On the
contrary the preponderance of probability shows that the
building in dispute was constructed some later point of time and
the inscriptions thereon was fixed further later but exact period
of the two is difficult to ascertain.
1680. The onus to prove lies upon the party who has pleaded
1796
these facts. We have no hesitation in saying that these parties
have miserably failed to discharge this burden.
1681. In the absence of any concrete material to show the
exact period and the reign of the concerned Mughal emperor or
anyone else during which the above construction took place, we
are refraining from recording any positive finding on this aspect
except that the building in dispute, to our mind, may have been
constructed much later than the reign of Emperor Babar and the
inscriptions were fixed further thereafter and that is why there
have occurred certain discrepancies about the name of the
person concerned as also the period. The possibility of change,
alteration or manipulation in the inscriptions cannot be ruled
out.
1682. It is a matter of further probe by Historians and others
to find out other details after making an honest and independent
inquiry into the matter. The three issues, therefore, are answered
as under:
(A) Issue no.6 (Suit-1) and Issue No.5 (Suit-3) are
answered in negative. The defendants have failed to
prove that the property in dispute was constructed by
Shanshah/Emperor Babar in 1528 AD. Accordingly, the
question as to whether Babar constructed the property in
dispute as a 'mosque' does not arise and needs no answer.
(B) Issue No.1(a) (Suit-4) is answered in negative. The
plaintiffs have failed to prove that the building in dispute
was built by Babar. Similarly defendant no.13 has also
failed to prove that the same was built by Mir Baqi. The
further question as to when it was built and by whom
cannot be replied with certainty since neither there is any
pleadings nor any evidence has been led nor any material
1797
has been placed before us to arrive at a concrete finding
on this aspect. However, applying the principle of
informed guess, we are of the view that the building in
dispute may have been constructed, probably, between
1659 to 1707 AD i.e. during the regime of Aurangzeb.
(G) Issues relating to Deities, their status, rights etc.:
1683. In this category comes issues no. 12 and 21 (Suit-4);
and, 1, 2, 3(a), 6 and 21 (Suit-5).
1684. Issues no. 12 (Suit-4) and 3(a) (Suit-5) involves
common facts and consideration. Similarly issues no. 1 and 21
(Suit-5) and issues no. 2 and 6 (Suit-5) are common:
"Issue No. 1 (Suit-5):-
Whether the plaintiffs 1 and 2 are juridical persons?
Issue No. 21 (Suit-5):-
Whether the idols in question cannot be treated as
Deities as alleged in paragraphs 1,11,12,21,22, 27 and 41 of
the written statement of defendant no.4 and in paragraph 1
of the written statement of defendant no.5?
Issue No. 2 (Suit-5):-
Whether the suit in the name of Deities described in
the plaint as plaintiffs 1 and 2 is not maintainable through
plaintiff no.3 as next friend?
Issue No. 6 (Suit-5):-
Is the plaintiff no.3 not entitled to represent the
plaintiffs 1 and 2 as their next friend and is the suit not
competent on this account?
Issue No. 21 (Suit-4):-
Whether the suit is bad for non-joinder of alleged
Deities?
Issue No. 12 (Suit-4):-
1798
Whether idols and objects of worship were placed
inside the building in the night intervening 22nd and 23rd
December 1949 as alleged in paragraph 11 of the plaint
or they have been in existence there since before? In either
case, effect?
Issue No. 3 (Suit-5):-
(a) Whether the idol in question was installed under
the central dome of the disputed building (since
demolished) in the early hours of December 23, 1949 as
alleged by the plaintiff in paragraph 27 of the plaint as
clarified in their statement under Order 10 Rule 2 C.P.C."
1685. Pleadings in this respect are in para 11 of the plaint
(Suit-4) and para 26 of the written statement dated 24th
December, 1989 of defendant no. 13/1 (Suit-4); paras 1, 20 and
27 of the plaint (Suit-5) and paras 1, 11, 12, 21, 22, 27 and 41 of
the written statement dated 26/29.08.1989 of defendant no. 4
(Suit-5) which read as under:
"11. That the Muslims have been in peaceful possession of
the aforesaid mosque and used to recite prayer in it, till
23.12.1949 when a large crowd of Hindus, with the
mischievous intention of destroying, damaging or defiling
the said mosque and thereby insulting the Muslim religion
and the religious feelings of the Muslims, entered the
mosque and desecrated the mosque by placing idols inside
the mosque. The conduct of Hindus amounted to an offence
punishable under sections 147, 295 and 448 of the Indian
Penal Code." (Plaint, Suit-4)
Para 26 of Written statement of defendant no. 13/1
(Suit-4):
26. That it is manifestly established by public records
1799
and relevant books of authority that the premises in
dispute is the place where, BHAGWAN SRI RAMA
Manifested HIMSELF in human form as an incarnation of
BHAGWAN VISHNU, according to the tradition and faith
of the Hindus. Again according to the Hindu faith, GANGA
originates from the nail of the tee of BHAGWAN VISHNU,
and cleanses and purifies whatever is washed by or dipped
into its waters. And BHAGWAN VISHNU having
Manifested himself in the human form of Maryada
Purushottam Sri Ramchandra Ji Maharaj at Sri Rama
Janma Bhumi, those who touch the Earth or the footprints
of BHAGWAN SRI RAMA symbolised by the CHARANS at
that place, are cleansed of their sins and purified. The
Earth at Sri Rama Janma Bhumi could not have acted
differently towards the Muslims who went there. They
were also cleansed and purified of the evil in them by the
touch of BHAGWAN SRI RAMA'S footprints, which like
the waters of the GANGA purify all without any
discrimination. The place, like the waters of the GANGA,
remains unsullied, and has been an object of worship, with
a juridical personality of its own as a Deity, distinct from
the juridical personality of the presiding Deity of
BHAGWAN SRI RAMA installed in the Temple thereat,
and has existed since ever even before the construction of
the first temple thereat and installation of the Idol therein.
Indeed, it is the VIDINE SPIRIT which is worshipped. An
Idol is not indispensable. There are Hindu Temples
without any Idol. The ASTHAN SRI RAMA JANMA
BHUMI has existed immovable through the ages, and
has ever been a juridical person. The actual and
1800
continuous performance of Puja at Sri Rama Janma Bhumi
was not essential for the continued existence or Presence
of the Deities at that place. They have continued to remain
Present, and shall continue to remain Present, so long as
the place lasts, which, being land, is indestructible, for any
one to come and invoke them by prayer. The Deities are
Immortal, being the Divine Spirit or the ATMAN, and may
take different shapes and forms as Idols or other symbols
of worship according to the faith and aspiration of their
devotees.
Paras 1, 20 and 27 of plaint (Suit-5):
"1. That the Plaintiffs Nos. 1 and 2, namely, Bhagwan Sri
Rama Virajman at Sri Rama Janma Bhumi, Ayodhya, also
called Sri Rama Lala Virajman, and the Asthan Sri Rama
Janma Bhumi, Ayodhya, with the other Idols and places of
worship situate thereat, are juridical persons with
Bhagwan Sri Rama as the presiding Deity of the place.
The Plaintiffs No. 3 is a Vaishnava Hindu, and seeks to
represent the Deity and the Asthan as a next friend."
"20. That the Place itself, or the Asthan SRI RAMA
JANMA BHUMI, as it has come to be known, has been an
object of worship as a Deity by the devotees of Bhagwan
Sri Rama, as IT personifies the spirit of the Divine
worshipped in the form of SRI Rama LALA or Lord Rama
the child. The Asthan was thus Deified and has had a
juridical personality of its own even before the
construction of a Temple building or the installation of the
Idol of Bhagwan Sri Rama thereat."
27. That after independence from the British Rule, the
Vairagis and the Sadhus and the Hindu public, dug up and
1801
levelled whatever graves had been left in the area
surrounding Sri Rama Janma Bhumi Asthan and purified
the place by Aknand Patha and Japa by thousand and
thousands of persons all over the area. Ultimately, on the
night between the 22nd 23rd December, 1949, the Idol of
Bhagwan Sri Rama was installed with due ceremony
under the central dome of the building also.
Paras 1, 11, 12, 21, 22, 27 and 41 of Written statement of
defendant no. 4 (Suit-5):
"1. That the contents of para 1 of the plaint are incorrect
and hence denied as stated. Neither the plaintiffs no. 1 and
2 are the juridical persons and nor there is any Presiding
Deity of Sri Ram Chandraji at the place in dispute and nor
the plaintiff no. 3 has any locus standi or right to represent
the co-called and alleged deity and Asthan as next friend. It
is further submitted that the plaintiffs no. 1 and 2 are not at
all legal personalities (and as such they have no right to
file the instant suit). As a matter of fact there has never
been any installation of deity within the premises of the
disputed place of worship known as Babri Masjid and the
idol in question was stealthily and surreptitiously kept
inside the mosque in the night of 22nd/23rd December, 1949
by some mischief-mongers against whom an F.I.R. had also
been lodged at the Police Station Ayodhya on 23rd
December, 1949.
11. That the contents of para 11 of the plaint are denied
as stated and in reply thereto it is submitted that the
plaintiffs no. 1 and 2 cannot be treated as deities and
also there arises no question of their Sewa and Pooja. Rest
of the contents of the para under reply may be verified from
1802
the record.
12. That the contents of para 12 of the plaint are also
denied as stated and in reply thereto it is submitted that
there arises no question of Sewa and Pooja of the said
alleged deities as no such deities exist in the building in
question and the idols kept therein could not be treated as
deities. It is further submitted that the restricted Pooja as
carried on on 16th January, 1950 could not be treated as
Sewa and Pooja of the alleged deity. It is also incorrect to
say that there has ever been any likelihood of the suits
being decided in such a manner that any closer Darshan of
the idols could be possible.
21. That the contents of para 21 of the plaint are also
denied as stated and in reply thereto it is submitted that the
mythological concept of incarnation etc. is not at all
relevant for the purposes of the instant case. (However, the
averments of the para under reply are not correct and
consistent with Hindu Law and the same being a matter of
legal nature it will be dealt at the appropriate stage.) It is,
however, relevant to mention here that neither there has
been any installation of any deity within the premises in
dispute and nor the ritual of Pranpratishtha in respect of
any idol surreptitiously and stealthily kept inside the
mosque in question was ever performed or observed; as
such there arises no question of divine spirit having been
created or manifested in the idol forcibly kept in the
mosque in question in the night of 22nd-23rd December,
1949 about which an F.I.R. was lodged at the Police
Station Ayodhya in the morning of 23.12.1949 by a Hindu
Officer of the Police Station himself who had mentioned in
1803
the said F.I.R. that some mischievous element had kept the
said idol in the preceding night in a stealthy and
surreptitious manner by sheer use of force and on the basis
of the said F.I.R. a Criminal case had also been registered
against those persons who had kept the said idol and
subsequently proceedings under section 145 Cr. Proc.
Code had been drawn by the Magistrate and as a result of
the communal tension arising and developing on account of
the aforesaid incident of keeping the idol in the mosque, the
said building had been attached on 29.12.1949 and
Suprudgar/Receiver for the care and custody of the said
building had also been appointed who had drawn up a
Scheme of Management and the same was submitted on
5.1.1950.
22. That the contents of para 22 of the plaint are also
incorrect and hence denied as stated and in reply thereto it
is submitted that the spirit of Sri Ramj Chandraji as the
divine child cannot be said to reside at any place or in any
idol kept inside the said mosque and as such no idol or
place of the said mosque can be said to be deity. It is
further submitted that there is no comparison of Kedranath
or Vishnupad temple of Gaya with the Babri Masjid. It is
also relevant to mention here that there is no Charan or
Sita Rasoee within the premises of Babri Masjid and the
place known as Sita Rasoee is situated outside the
premises of the said mosque. It is also incorrect to say
that Pooja in any form was ever performed inside the
mosque in question at any time prior to 23.12.1949.
27.That the contents of para 27 of the plaint are also
incorrect and hence denied as stated. The graves existing
1804
near the Babri Masjid were dug up and levelled mainly
after 1949 and not just after Independence and in the night
of 22nd-23rd December, 1949 some Bairagees had forcibly
and illegally entered into the mosque and had kept the
idol below the middle dome of the mosque about which
an F.I.R. was lodged at the Police Station Ayodhya in the
morning of 23rd December, 1949 and some of the culprits
were even named in the FIR. It is absolutely incorrect to
say that the idol of Bhagwan Sri Ram Chandraji was
installed with due ceremony in the Central dome of the
building in the 'aforesaid' night. It is also incorrect to say
that any purification of the alleged Asthan was done by
Akhand Ramyan and Jap by thousands of persons all over
the area.
41. That the instant suit is not at all maintainable and the
plaintiffs no. 1 and 2 are neither deities and nor they can
be treated as juristic persons and the plaintiff no. 3 cannot
claim himself to be the next friend of Bhagwan Sri Ram. As
such none of the plaintiffs have any right to file the instant
Suit."
1686. The defendant no. 5 (Suit-5) also in para 1 of his
written statement has said:
"1. That the contents of para 1 of plaint are denied.
Neither the plaintiff no. 1 nor plaintiff no. 2 are the
deities within the meaning of Hindu Law nor they are
juristic person to file the suit. Remaining contents of para
are also denied. Kindly see additional pleas."
1687. We may mention at this stage that para 11 of the plaint
(Suit-4) has also been denied by the defendants no. 1 and 2 in
para 11 of their written statement dated 12.03.1962 and
1805
thereafter in the additional pleas in paras 25, 28 and 29 they
have pleaded that Hindu Pooja is going on in the said temple
since 1934, i.e., for about last 28 years and Muslims have
never offered any prayer since 1934 therein. It is also said that
the plaintiffs (Suit-4) have falsely described the temple as
Babari mosque. Same thing has been repeated in the written
statement dated 25.01.1963 filed on behalf of defendant no. 2 in
para 25.
1688. On behalf of Nirmohi Akhara defendants no. 3 and 4
also written statement has been filed wherein they have disputed
the very assertion of construction of any building, i.e., Babari
mosque by Emperor Babar 460 years ago as alleged in para 1
and it is also said that Babar did not make any conquest or
occupation of any territory in India at that time. Similarly, any
damage to the building in 1934 has been denied and
consequently its rebuilding and reconstruction also denied. We
may notice at this stage, in particular, para 13(C) of the written
statement dated 22/24.08.1962 of defendants no. 3 and 4 which
says:
"The said Temple Ram Chabutra has a history of Judicial
scanning since 1885 A.D. and it existence and possession
over temple Ram Chabutra was ever since in possession of
Nirmohi Akhara and no other but Hindus allowed to enter
and worship there and put offering in form of money,
sweets, fruits, flowers etc......"
1689. Similarly in para 38 of their additional written
statement dated 28/29.01.1963 the defendants no. 3 and 4 have
categorically denied that Emperor Babar ever built a mosque as
alleged by the plaintiffs or that the Muslims were ever in
possession of the building in question. Therefore, the case of the
1806
defendants no. 3 and 4 has all through been that the temple of
Lord Rama at the disputed site exist from time immemorial and
thereat neither any construction was made by Babar in 1528 AD
nor any damage etc. caused in 1934 in the said temple and
accordingly they also deny the allegation of placement of any
idol in the disputed building on 22/23.12.1949. Para 11 of the
plaint (Suit-4) has been denied alleging it to be false and
concocted and in para 12 of the written statement it is said that
no such incident ever took place. The report, if any, lodged by
the constable is mischievous and in connivance of the plaintiffs.
1690. The arguments advanced by Sri Jilani, and as adopted
by counsel appearing for other Muslim parties are, that, neither
a place can be said to be a 'Deity' nor a Juristic person, nor every
'idol' will attain the status of a 'Deity' and thereby become a
juristic person, unless it is installed by Shastric procedure i.e.,
by observing process of "Pran Pratishtha" (vivification). Neither
idols in question placed at the disputed site are 'Deity' nor the
place itself comes within the said notion recognised in law. The
suit filed by plaintiffs no. 1 and 2 (Suit-5) is not maintainable.
Non impleadment of Deity, i.e., idol and place makes Suit-4
untenable. Further submission is, the plaintiff 3 (Suit-5) is
neither competent nor otherwise can represent plaintiffs 1 and 2
(Suit-5), he is not a proper person who can represent the
plaintiffs 1 and 2, and even otherwise as a next friend.
Therefore, Suit-5 is liable to be dismissed. Besides, plaintiffs 1
and 2 not being juridical person, Suit 5 is not maintainable in
law.
1691. Sri Siddique also argued that Pran Pratishtha is
necessary to make an idol 'deity' as held in Jogendra Nath
Naskar Vs. Commissioner of Income Tax, Calcutta AIR 1969
1807
SC 1089. He said that neither in 1949 nor thereafter, at any
point of time, Pran Pratishtha of the idols, placed in the inner
courtyard of the disputed structure, took place and, therefore, no
right of worship of the idols placed therein is vested in or
acquired by any Hindu. He said that plaintiff no. 2 is only a
fictional deity and not a real deity. After construction of
building more than 500 years ago, the deity cannot said to have
continued since then till date.
1692. With respect to Suit-3, contentions of all the learned
counsels appearing on behalf of various Hindu parties, [except
Sri R.L. Verma who is counsel for plaintiff (Suit-3)] is that the
Deities being juristic personalities having not been impleaded as
defendants in Suit-3, though they are necessary parties, hence in
their absence suit cannot proceed.
1693. Responding to the objections of Sri Jilani, Sri Siddiqui
and Sri Irfan Ahmad, Advocates, the other side, represented
through Sri Ravi Shankar Prasad, Sri P.R. Ganesh Ayer and Sri
K.N. Bhatt, Senior Advocates, Sri P.N. Mishra, Sri M.M.
Pandey and other Advocates submit that in Hindu religious
scriptures the concept of 'Deity' extremely vary. It includes a
place or object, i.e. natural things like river, tree, stone,
mountain, mound or even a part of earth connected with divine
activities. Sri Ravi Shankar Prasad submitted that this aspect of
the matter is also crucial and relevant to adjudicate issues no. 14
(Suit-4), 22 and 24 (Suit-5).
1694. Sri P.N.Mishra, Advocate, besides his oral submission,
has also submitted written argument. In respect to the juridical
personality of plaintiffs no.1 and 2 (Suit-5) and consecration
etc., he has said:
"A. According to Shastric (Scriptural) injunctions Sri
1808
Ramajanmasthan Sthandil, a Svayambhu Linga (Symbol)
brought into existence and established by the Lord of
Universe Sri Vishnu Himself. As such inspite of being
decayed, or damaged, or destroyed it shall forever remain
sacred place of Worship as it does not need purification or
consecration or change. Pratistha is required only in respect
of manmade Images/Idols/Symbols of Deities that can be
done by chanting single Mantra XXXI.1 or II.13 of the Holy
Divine Sri Yajurved (Vagasaneyee Samhita also known as
"Sri Shukla Yajurved"). A deity needs to be worshipped by
providing all things which are required for leading a healthy
and excellent life.
B. Svayambhu i.e. Self-built or Self existent or Self-
revealed Lingas (symbols) of Devatas (Gods) or the Lingas
(Symbols) established by Gods, or by those versed in the
highest religious truths, or by Asuras, or by sages, or by
remote ancestors, or by those versed in the tantras need not
to be removed though decayed or even broken. Only
decayed or broken Pratisthita Images/Idols require to be
replaced with new one. In respect of renewal of the images,
"Treatise on Hindu Law" by Golapchandra Sarkar,
(Sastri) reproduces the Shastric injunction (Scriptural law)
as follows:
"Raghunanda's Deva-Pratistha-Tantram, last paragraph
reads as follows:
"8. Now (it is stated) the prescribed mode of Renewal of
Decayed Images. Bhagwan says - 'I shall tell you briefly
the holy ordinance for renewing Decayed Images * * *'
"Whatever is the material and whatever size of the image
of Hari (or the God, the protector) that is to be renewed; of
1809
the same material and of the same size, and image is to be
caused to be made; of the same size of the same form (and
of the same material), should be (the new image) placed
there; either on the second or on the third day (the image
of) Hari should be established; if, (it be) established after
that, even in the prescribed mode, there would be blame or
censure or sin; in this very mode the linga or phallic
symbol and the like (image) should be thrown away; (and)
another should be established, of the same size (&c.) as
already described, - Haya-Sirsha".
"9. God said, -
'I shall speak of the renewal in the prescribed mode of
lingas or phallic symbols decayed and the like &c * * *.
(Allinga) established by Asuras, or by sages or by remote
ancestors or by those versed in the tantras should not be
removed even in the prescribed form, though decayed or
even broken.'
(Agnipuranam Chapter 103 Poona Edition of 1900 AD.
p.143)
[There is a different reading of a part of this sloke noted in
the foot-note of the Poona Edition of this Puran as one of
the Anandashram series of sacred books: according to
which instead of - " or by remote ancestors or by those
versed in the tantras" -
the following should be substituted, namely:
"Or by Gods or by those versed in the highest religious
truths."]
"10. Now Renewal of Decayed (images is considered);
that is to be performed when a linga and the like are burnt
or broken or removed (from its proper place). But this is
1810
not to be performed with respect but a linga or the like
which is established by a Siddha or one who has become
successful in the highest religious practice, or which is
anadi i.e. of which the commencement is not known, or
which has no commencement. But their Mahabhisheka or
the ceremony of great anointment should be performed:-
this is said by "Tri- Vikrama" - Nirnaya - Sindhu -
Kamalakar Bhatta, Bombay Edition of 1900 p.264.
The author of the Dharma-Sindhu says as above in almost
the same words - see Bombay Edition of 1988 p.234 of
that work."
[Treatise on Hindu Law by Golapchandra Sarkar,
Sastri (6th Edition, published by Easter Law House (1927)
at p.745-748]
C. Alberuni who compiled his book "India in or about
1030 A.D." on page 121 has written that the Hindus honour
their Idols on account of those who erected them, not on
account of the material of which they are, best example
whereof is Linga of sand erected by Rama. In his book on
pages 117, 209, 306-07 and 380 he has also narrated about
the Lord of Universe Sri Rama. Relevant extract from page
121 of "Alberuni's India" Translated by Dr. Edward C.
Sachau (Reprint 2007 of the 1st Edn. 1910) published Low
Price Publications, Delhi reads as follows:
"The Hindus honour their idols on account of those who
erected them, not on account of the material of which they
are made. We have already mentioned that the idol of
Multan was of wood, e.g. the linga which Rama erected
when he had finished the war with the demons was of
sand. Which he had heaped up with his own hand. But
1811
then it became petrified all at once, since the astrologically
correct moment for the erecting of the monument fell
before the moment when the workmen had finished the
cutting of the stone monument which Rama originally had
ordered." (ibid page 121)
D. According to the Hindus' Divine Holy & Sacred
Scriptures there are two types of images one Svayambhu
(self-existent or self-revealed or self-built) and other
Pratisthita (established or consecrated). Where the Self-
possessed Lord of Universe Sri Vishnu has placed himself
on earth for the benefit of mankind, that is styled
Svayambhu. It does not require Pratistha. At
Ramajanamasthan the Lord of Universe Sri Vishnu appeared
and placed Himself on the said sacred place which itself
became Svayambhu for the reason that invisible power of
the Almighty remained there which confers merit and
salvation to the devotees. Consecrated artificial manmade
Lepya images i.e. moulded figures of metal or clay; and
Lekhyas i.e. all kinds of pictorial images including chiselled
figures of wood or stone not made by moulds are called
Pratisthita. Sri Mishra then quoted para 4.5 of "Hindu Law
of Religious and Charitable Trusts' of B. K. Mukherjea
5th Edition, Published by Eastern Law House at page 154.
E. According to the Holy Scripture "Sri Narsingh
Puranam" (62.7-14 ½ ) Pratistha of the Lord of Universe Sri
Vishnu should be done by chanting 1st Richa of the Purush
Sukta of Shukla Yajurved [I.e Vagasaneyee Samhita
Chapter XXXI] and be worshipped dedicating prescribed
offerings by chanting 2nd to 15th Richas of the Purush
Sukta. And if worshipper so wish after completion of
1812
worship he may by chanting 16th Richas of the Purush
Sukta pray to Sri Vishnu for going to his His own abode.
Above-mentioned verses of Sri Narsingh Puranam and
Hindi translation thereof reads as follows:
^^rL; loZe;RokPp LFkf.Mys izfreklq pA
vkuq"VHkL; lwDrL;] fo".kqLrL; p nsorkAA 7
iq#"kks ;ks tx}hta Jf"kukjk;.k% Le`r%A
n|kRiq#"klwDrsua ;% iq"ik.;i ,o pAA 8
vfpZra L;kT¥xRloZa rsu oS lpjkpje~A
vk|;k··okg;sn~nsoe`pk rq iq#"kksRree~AA 9
f}rh;;k··lua n|kRik|a n|kRr`rh;;kA
prqF;kZ?;Z% iznkrO;% iatE;k··peuh;de~AA 10
"k"B;k Lukua izdqohZr lIrE;k oL=eso pA
;Kksiohre"VE;k uoE;k xU/keso pAA 11
n'kE;k iq"inkua L;knsdkn';k p /kwide~A
}kn';k p rFkk nhia =;ksn';kpZua rFkkAA 12
prqnZ';k Lrqfra d`Rok iT¥n';k iznf{k.ke~A
"kksM';ks}klua dq;kZPNs"kdekZf.k iwoZor~AA 13
Lukua oL=a p uSos|a n|knkpeuh;de~A
"k.eklkfRlf)ekizksfr nsonsoa lepZ;u~AA14
laoRljs.k rsuSo lk;qT;ef/kxPNfrA
vc iwtudk eU= crkrs gSaA 'kqDy ;tqosZnh; #nzk"Vk;k;hesa tks
iq#"klwDr gS] mldk mPpkj.k djrs NUn gS] txr~ds dkj.kHkwr ije iq#"k
Hkxoku~ fo".kq nsork gSa] ukjk;.k _f"k gSa vkSj HkxoRiwtu esa mldk fofu;ksx
gSA tks iq#"klwDr ls Hkxoku dks Qwy vkSj ty viZ.k djrk gS] mlds }kjk
lEiw.kZ pjkpj txr~ iwftr gks tkrk gSA iq#"klwDr dh igyh _pkls
Hkxoku~ iq#"kksRredk vkokgu djuk pkfg;sA nwljh _pkls vklu vkSj
rhljh ls ik| viZ.k djsA pkSFkh _pk ls v?;Z vkSj ikWapoh ls vkpeuh;
fuosfnr djsaA NBh _pk ls Luku djk;s vkSj lkroha ls oL= viZ.k djsaA
vkBoha ls ;Kksiohr vkSj uoeh _pkls xU/k fuosnu djsaA nloha ls Qwy
p<+k;s vkSj X;kjgoha _pkls /kwi nsA ckjgoha ls nhi vkSj rsjgoha _pkls
uSos|] Qy] nf{k.kk vkfn vU; iwtu&lkexzh fuosfnr djsA pkSngoha _pkls
1813
Lrqfr djds ianzgohals iznf{k.k djsaA vUresa lksygoha _pkls foltZu djsA
iwtu ds ckn 'ks"k deZ igys crk;s vuqlkj gh iw.kZ djsa Hkxoku~ ds fy;s
Luku] oL=] uSos| vkSj vkpeuh; vkfn fuosnu djsA bl izdkj nsonso
ijekRekdk iwtu djusokyk iq#"k N% eghusesa flf) izkIr dj ysrk gSA blh
dze ls ;fn ,d o"kZrd iwtu djs rks og HkDr lk;qT; eks{kdk vf/kdkjh gks
tkrk gSAA7&14 1@2AA
(Sri Narsingh Puranam 62.7-14 ½ )
Be it mentioned herein that in the above Sri Narsingh
Puranam 62.13 Sloke enumerates Pradakshina i. e.
Parikrama (circumbulation) as 14th means of reverential
treatment of the Deity and thereby makes it integral part of
the religious customs and rituals of service and worship of a
Deity.
F. 1st Holy Spell of Purush Sukta of the Holy Devine
Shukla Yajurved [i.e Vagasaneyee Samhita Chapter
XXXI] prescribed by the Holy Sri Narsingh Puranam for
Pratistha of the Lord of Universe Sri Vishnu reads as
follows:
^^lglz'kh"kkZ iq#"k% lglzk{k% lglzikr~A
l Hkwfe loZr% Li`Rok·R;fr"Bkn~n'kkM+-xqye~AA1AA
eU=kFkZ & lHkh yksdksa esa O;kIr egkukjk;.k lokZRed gksus ls vuUr
f'kj okys] vuUr us= okys vkSj vuUr pj.k ¼iSj½ okys gSaA ;s ikap rRoksa
ls cus bl xksyd:i leLr O;fDr vkSj lef"V czzg~ek.M dks frjNk]
Åij] uhps lc rjQ ls O;kIr dj ukfHk ls nl vaxqy ifjfer ns'k] g`n;
dk vfrdze.k dj vUr;kZeh :i ls fLFkr gq, FksA**
(ibid as translated by Swami Karpatriji and published by Sri
Radhakrishna Dhanuka Prakasan Samsthanam, Edn. Vikram
samvat 2048)
Simple English translation thereof reads:
'The Almighty God who hath infinite heads, infinite eyes;
infinite feet pervading the Earth on every side and
1814
transgressing the universe installed Him in sanctum as
knower of inner region of hearts'.
Be it mentioned herein in the Mimamsa Darshan as
commented in Sanskrit by Sri Sabar Swami and in Hindi by
Sri Yudhisthir Mimamsak and Mahabhasya, meaning of
"Sahasra" has also been given "infinite" as also "one" apart
from "thousand" and according to context one or other
meaning is adopted.
G. "Nitya Karma Puja Prakash" has prescribed a Mantra
of Yajurved [i.e Vagasaneyee Samhita Chapter II.13] for
Pratistha of Lord Ganesh. Relevant portion of the said book
reads as follows:
^^vuUrj loZizFke x.ks'kth dk iwtu djsA x.ks'k&iwtuls iwoZ ml uwru
izfrekdh fuEu&jhfrls izk.k&izfr"Bk dj ysa&
izfr"Bk& ck;sa gkFkesa v{kr ysdj fuEu eU=ksa dks i<+rs gq, nkfgus gkFkls
mu v{krksadks x.ks'kth dh izfrekij NksM+rk tk;&
ÅWa euks twfrtqZ"krkekT;L; c`gLifr;ZKfeea ruksRofj"Va ;Kk lfeea n/kkrqA
fo'os nsokl bg ekn;Urkeks3 Eizfr"BA
ÅWa vL;S izk.kk% izfr"BUrq vL;S izk.kk% {kjUrq pA
vL;S nsoRoe;kZ;S ekegsfr p d'puAA
bl izdkj izfr"Bk dj Hkxoku~ x.ks'kdk "kksM'kksipkj iwtua ¼i`0la0
174&185 ds vuqlkj½ djsA rnuUrj uoxzg ¼i`0la0 210½] "kksM'kekr`dk
¼i`0la0 205½ rFkk dy'k&iwtu ¼i`0la0 186½ ds vuqlkj djsaA**
[Nitya Karma Puja Prakash published by Gita Press
Gorakhpur 32nd Edn. 2060 Vikram Samvat at page 244]
H. The Holy "Sri Satpath-Brahman" interpreting said
Mantra II.13 of the Holy Sri Shukla Yajurved [i.e.
Vagasaneyee Samhita] says that Pratistha of all Gods
should be done by said Mantra. Be it mentioned herein that
the Holy Sri Satpath-Brahman being Brahman part of
Divine Sri Shukla Yajurved, interpreting Mantras of said
1815
Vagasaneyee Samhita tells about application of those
Mantras in Yajnas (Holy Sacrifices). Said Mantra II.13 of
the Divine Sri Shukla Yajurved (Vagasaneyee Samhita) as
well as Sri Satpath-Brahman (I.7.4.22) with original texts
and translations thereof read as follows:
euksa twfrtqZ"krkekT;ZL; o`gLifr;ZKfeea ruksRofjVa ;Ka lfeea n/kkrqA
fo'os n~sokl bg ekZn;Urkeks3Eizfr"BAA13AA
¼44½ ¼twfr% eu% vkT;L; tq?krka½ rsjk osxokueu |`rdk lsou djs]
¼o`gLifr% bea ;Ka ruksrq½ Kkudk Lokeh bl ;Kdks QSyk;s] ¼bea ;Ka
vfj"Va la n~/kkrq½ bl ;Kdks fgalkjfgr djds lE;d /kkj.k djsaA ¼foÜos
nsokl% bg ekn;UrkZ½ lc nso ;gka vkufUnr gksa] ¼vksa izfr"B½ ,slk gh gksos]
izfrf"Br gksaosAA13AA
(ibid Hindi Translation of Padmbhushan Sripad Damodar
Satvalekar,1989 Edn. Published by Swayadhyay Mandal
pardi)
English Translation of the abovenoted Hindi Translation
reads as follows:
"May your mind Delight in the gushing (of the ) butter.
May Brihaspati spread (carry through) this sacrifice ! May
he restore the sacrifice uninjured. May all the Gods rejoice
here. Be established/seated here."
Sanskrit text of Sri Satpath-Brahman (I.7.4.22) as printed
in 'Sri Shukla Yajurvediya Satpath Brahman' Vol. I on its
page 150, Edn.1988 Published by Govindram Hasanand,
Delhi 110006 is reproduced as follows:
^^euks twfrtqZ"krkekT;L;sfrA eulk okTbn - - loZekIra
rUeuloSrRloZekizksfr c`gLifr;ZKfeea ruksofj"Va ;K lfeea n/kkfofr
;f}o`ga rRlan/kkfr fo'ks nsokl bUg ekn;Urkfefr loZ os fo'os nsok%
losZ.ksoSrRlan/kkfr l ;fn dke;sr czw;kRizfr"Bsfr i|q dke;srkfi ukfnz;sr
AA22AA czkg~e.kke~ AA2- ¼7-4½AA v/;k;% AA7AA**
English translation of Sri Satpath-Brahman (I.7.4.22) as
1816
printed in Volume 12 of the series "The Sacred Books Of
The east" under title 'The Satpath - Brahmana' Part I on its
page 215, Edn. Reprint 2001 Published by Motilal
Banarasidass, Delhi 110007 is reproduced as follows:
22. [He continues, Vag. S. II, 13]: 'May his mind delight
in the gushing (of the) butter!' By the mind, assuredly, all
this (universe) is obtained (or pervaded, aptam)): hence he
thereby obtains this All by the mind.-'May Brhaspati
spread (carry through) this sacrifice! May he restore the
sacrifice uninjured!' - he thereby restores what was torn
asunder.-'May all the gods rejoice here!'. 'all the gods,'
doubtless, means the All : hence he thereby restores (the
sacrifice) by means of the All. He may add, 'Step
forward!' if he choose; or, if he choose, he may omit it.
(Sri Satpath-Brahman I.7.4.22)
I. 19th Holy Spell of Naradiya Sukta of the Holy Divine
Shukla Yajurved [i.e. Vagasaneyee Samhita Chapter
XXIII] is also widely applied by the Knower of the
Scriptures to invoke and establish a deity. Said Mantra reads
as follows:
^^x.kkauka Roka x.kifr gokegs fiz;k.kka Lok fiz;ifr gokegs fu/khuka
Rok fuf/kifr gokegs olks eeA
vkgetkfu xHkZ/kek Roetkfl xHkZ/keAA**
English Translation of this Mantra based on Hindi
Translation of Padmbhushan Sripad Damodar
Satvalekar,1989 Edn. Published by Swayadhyay Mandal
pardi reads as follows:
"O, Lord of all beings we invoke Thee. O, Lord of
beloved one we invoke Thee. O, Lord of Wealth we
invoke Thee. O abode of all beings Thou are mine. O,
Sustainer of Nature let me know Thee well because Thee
1817
the sustainer of Universe as embryo are Creator of All."
[Shukla Yajurved Chapter XXIII Mantra 19]
J. The vivified image is regained with necessaries and
luxuries of life in due succession. Change of clothes,
offering of water, sweets as well as cooked and uncooked
food, making to sleep, sweeping of the temple, process of
smearing, removal of the previous day's offerings of
flowers, presentation of fresh flowers and other practices are
integral part of Idol-worship. In public temple, in olden days
these were being performed by Brahmins, learned in Vedas
& Agamas. (Para 4.7 Hindu Law of Religious and
Charitable Trusts of B. K. Mukherjea 5th Edition,
Published by Eastern Law House at page 156.)
1695. Sri Ravi Shankar Prasad, Senior Advocate elaborated
the concept of "Deity" as per the notions of ancient Hindu
scriptures and, that, how can it be ascertained as to whether the
place of worship of Hindus is "Deity" within the term and
understanding in Hindu Law, how the properties held by
"Deity" is alienable and also the development of Hindu Law. He
placed, in extentio, certain excerpts from B.K.Mukherjea's
"The Hindu Law of Religious and Charitable Trusts" (Tagore
Law Lectures Fifth Edition revised by Sri A.C. Sen published
by Eastern Law House in 1983 reprinted in 2003) pages 25, 26,
27, 38, 39, 40, 152 to 154, 156 to 163 besides several authorities
of the Apex Court, this Court, Privy Council and various High
Courts. The concept of deity, a very distinguishing feature of
Hindu faith is one that, i.e., eternal, permanent and omnipresent
wherein the deity is the image of the Supreme Being. The
temple is the house of the deity and to constitute a temple it is
enough if the people believe in its religious efficacy, i.e., there is
1818
some supreme super power existing there whom they need to
worship and invoke its blessings.
1696. It is contended that religious purpose under the
Hindu law must be determined according to Hindu notions. In
support of his submission, he placed reliance on para 2.27 on
page 75 of "The Hindu Law of Religious and Charitable
Trusts" by B.K. Mukherjea (supra), which says:
"These observations, if I may say so, apply with full force
to trusts created by Hindus for religious purposes.
Undoubtedly the court and not the donor is the judge, of
whether an object is charitable or not, but the court cannot
enter into the merits of particular religious doctrine, and
therefore must remain neutral. The divine service of a
particular religion is defined by the doctrines of the
religion itself and no court can appreciate their spiritual
efficacy, unless it knows these doctrines and hypothetically
admits them to be true. In controversial matters the court
cannot possibly decide whether the doctrines are beneficial
to the community or not. It has got to act upon the belief
of the members of the community concerned, and unless
these beliefs are per se immoral or opposed to public
policy, it cannot exclude those who profess any lawful
creed from the benefit of charitable gifts..."
1697. It is said that the right of a deity of being worshipped
by its followers ought not to be compared with a secular law
relating to management of deities for they are fundamentally
distinct. The present case relates to the site/place of birth of
Lord Rama, i.e., Ramjanambhumi which itself is a deity for the
reason of the belief and faith of Hindu public since time
immemorial that the Lord of Universe, the Supreme Being
1819
Vishnu manifested thereat as an incarnation in human form
making that place sacred and pious and mere visit and Darshan
thereof would be sufficient to shower blessing, happiness and
salvation to the worshippers. By the very nature, the deity in
question is not only inalienable but cannot be possessed or
owned by any individual, legal or natural. This deity, i.e., the
place itself is a legal person, i.e. a juridical person possessing all
the facets of a legal person as recognized in law.
1698. Sri Prasad submitted that a self created Deity i.e.
Sayambhu, need not be in a particular shape or form and even a
place can be said to be a Deity. It is extra commercium, non-
destructible, inalienable, and even if there is no structure, it is a
temple if has the sanctity of pious place being worshipped by
the believers with a faith that the religious merits shall be gained
by them on offering prayer or worship thereat.
1699. Sri Prasad relied on Ram Jankijee Deities & Ors. Vs.
State of Bihar & Ors. (1999) 5 SCC 50=AIR 1999 SC 2131
(para 13 to 28) and Saraswathi Ammal & Anr. Vs. Rajagopal
Ammal AIR 1953 SC 491 (para 6) to demonstrate as to what is
the concept of deity in Hinduism. He submits that the religious
issues pertaining to Hindu religion are to be considered and
decided according to Hindu notions and referred to Shiromani
Gurdwara Prabandhak Committee, Amritsar Vs. Som Nath
Dass & Ors. (Supra) (para 30 to 42); Poohari Fakir
Sadavarthy Vs. Commissioner, H.R. & C.E. AIR 1963 SC 510
(at page 512); Thayarammal Vs. Kanakammal & Ors. (2005)
1 SCC 457 (para 16); Idol of Thakurji Shri Govind Deoji
Maharaj, Jaipur Vs. Board of Revenue, Rajasthan, Ajmer &
Ors. AIR 1965 SC 906 (para 6); Mahant Ram Saroop Dasji
Vs. S.P.Sahi, Special Officer-in-charge of Hindu Religious
1820
Trusts and others AIR 1959 SC 951 (para 10); Manohar
Ganesh Tambekar & Ors. Vs. Lakhmiram Govindram &
Ors. (1888) ILR 12 Bom 247.
1700. Once an idol is always an idol and it never dies. For
the above proposition, he referred to the Madras High Court's
decision in Board of Commissioners for Hindu Religious
Endowments, Madras Vs. Pidugu Narasimham & Ors. AIR
1939 Madras 134 (at page 135) and T.R.K. Ramaswami Servai
& Anr. Vs. The Board of Commissioners for the Hindu
Religious Endowments, Madras, through its President AIR
(38) 1951 Madras 473 (para 47). The meaning; definition and
concept of Temple in general as well in legislative enactments
must be read and understood in the light of the Shastrik Law,
otherwise it would be ultra vires of the Constitution. He refers to
Gedela Satchidananda Murthy Vs. Dy. Commr., Endowments
Deptt., A.P. & Ors. (2007) 5 SCC 677 (at page 685); T.V.
Durairajulu Naidu Vs. Commissioner, Hindu Religious and
Charitable Endowments (Administration) Department,
Madras AIR 1989 Madras 60 (para 18); Sri Adi Visheshwara
of Kashi Vishwanath Temple, Varanasi & Ors. Vs. State of
U.P. & Ors. (1997) 4 SCC 606 (para 30); Gokul Nathji
Maharaj & Anr. Vs. Nathji Bhogi Lal AIR 1953 All. 552;
Pramath Nath Mullick Vs. Pradhyumna Kumar Mullick &
Anr. AIR 1925 PC 139 (at page 143); Bhupati Nath Smrititir
the Bhattacharjee Vs. Ram Lal Mitra & Ors. 1909 (3) Indian
Cases (Cal.) (FB) 642 (para 73).
1701. The manner in which a deity can hold property is
illustrated cited before us the decision of the Apex Court in
Jogendra Nath Naskar Vs. Commissioner of Income-Tax
(supra) (para 5 and 6); Deoki Nandan Vs. Murlidhar & Ors.
1821
AIR 1957 SC 133 (para 6); Kalanka Devi Sansthan Vs. The
Maharashtra Revenue, Tribunal Nagpur and Ors. AIR 1970
SC 439 (para 5 at page 442) and Narayan Bhagwantrao
Gosavi Balajiwale Vs. Gopal Vinayak gosavi & Ors. AIR
1960 SC 100 (para 35 to 38).
1702. An idol is extra commercium and inalienable. He
supported the above proposition by citing Mukundji Mahraj
Vs. Persotam Lalji Mahraj AIR 1957 Allahabad 77 (para 28
and 29); Kasi Mangalath Illath Vishnu Nambudiri & Ors Vs.
Pattath Ramunni Marar & Ors. AIR 1940 Madras 208; Smt.
Panna Banerjee and Ors. Vs. Kali Kinkor Ganguli AIR 1974
Cal. 126 (para 65 and 66); Kali Kinkor Ganguly Vs. Panna
Banerjee & Ors. AIR 1974 SC 1932 (para 23 and 25); Khetter
Chunder Ghose Vs. Hari Das Bundopadhya (1890) 17 ILR
Cal. 557 (at page 559).
1703. Sri Prasad refers to State of West Bengal Vs. Anwar
Ali Sarkar & Anr. AIR (39) 1952 SC 75 (para 85) and read the
observations how Hindu Law has developed. He relied on the
History of Dharmashastra by P.V. Kane Vol. 2, Part-2,
Chapter XXVI page 911 and Vol. 3 page 327 and 328 and also
Bumper Development Corp. Ltd. Vs. Commissioner of Police
of the Metropolis and others 1991 (4) All ER 638; Addangi
Nageswara Rao Vs. Sri Ankamma Devatha Temple
Anantavaram 1973 Andhra Weekly Report 379.
1704. To illustrate the concept of deity, i.e., continued
supernatural power, omnipotent, never dying, never changed, he
cited Maynes' Hindu Law & Usages", 16th Edn. and the "The
Classical Law of India" by Robert Lingat.
1705. Sri R.L.Verma, learned counsel appearing on behalf of
Nirmohi Akhara defendant No.3 raised objection about the
1822
maintainability of suits through next friend and contended that
there is no averment in the entire plaint (Suit-5) as to why the
plaintiff no.3 be allowed to file suit on behalf of plaintiffs no. 1
and 2 as their next friend. He submits that neither there is any
averment that the already working Shebait is not looking after
the Deity faithfully and religiously nor there is any averment
that there is no Shebait at all of the Deities, plaintiffs no.1 and 2,
nor there is any averment that plaintiff no.3 himself is a
worshipper of the Deities (plaintiffs no.1 and 2) and therefore, is
interested in the welfare and proper management of the property
and daily care of Deity themselves. Sri Verma submits that
Order XXXII, Rule 1 in terms has no application to Suit-5. The
suit, as framed, is not maintainable through the next friend,
hence, is liable to be rejected on this ground alone.
1706. Sri Verma further submits that O.P.W.-2 i.e. late
D.N.Agarwal in his own statement under Order X, Rule 2
recorded on 20.4.1992 has admitted that the idols kept at Ram
Chabutara, in the outer courtyard was shifted to the inner
courtyard and kept under the central dome in the disputed
building in the night of 22/23rd December, 1949. Further that it
is also an admitted position that the idols while kept on Ram
Chabutara in the outer courtyard were being looked after and
managed by the priest of Nirmohi Akhara and the outer
courtyard was in possession of Nirmohi Akhara. It means that
the idols belong to Nirmohi Akhara, shifted from Ram
Chabutara to the central dome of the disputed building and that
being so, the idols cannot be held independent legal entity
outside the religious endowment i.e. "Nirmohi Akhara".
1707. Sri M.M. Pandey, learned counsel for the plaintiffs
(Suit-5), in respect to Issues No. 1 and 21 (Suit-5) has submitted
1823
as under:
A. Existence of a Supreme Being which controls
everything and possesses the capacity of conferring good on
human beings, is admitted alike by Islam (Allah),
Christianity (God) and Hindu Dharma (Bramhan or Onkar).
This Supreme Being is outside the realm of Courts, hence is
not a Juristic entity. According to Islam, a Messenger
(Prophet Mohammad) pronounced the commands of Allah in
the form of Quran and other spiritual edicts; according to
Christianity too, a Messenger came earlier (Christ - Son of
God) to deliver the Gospel of God. According to Hindus,
Bramha manifests Himself in human form by 'Reincarnation'
(Avatar) with all the powers of the Supreme Being subject to
self-imposed human limitations. William Finch recorded this
popular perception about Ram in early 17th Century.
Bramha too is seen in many Forms: Bramha (the Creator),
Vishnu (the Preserver), Mahesh (the Destroyer), Shakti (the
Universal Energy) etc. Ram and Krishna are Reincarnations
of Vishnu; In Shrimad Bhagwat Gita Chapter X, verse 31,
Shri Krishna declared: "Among warriors, I am Ram."
B. This self-manifestation of the Supreme Being is
known as SWYAMBHU reincarnation, and the place of
reincarnation is treated to be sacred just as Islam holds
Mecca (birthplace of Prophet Mohammad) or Christianity
holds Bethlehem/Jerusalem (birthplace of Christ) as sacred.
While Islam and Christianity do not have a concept of Deity,
Hindu Dharma has elevated the concept of Sacredness into
an object of Divinity fit for Worship and recognises it as a
Deity in a physical form too with a Faith that its worship has
the capacity of conferring well. At the same time, "a Hindu
1824
does not worship the 'Idol or the material body made of clay
or gold or other substance' as a mere glance of the mantras
or prayers will show. They worship the eternal Spirit of the
Deity, or certain attributes of the same, in a suggestive form,
which is used for the convenience of contemplation as a
mere symbol or emblem. It is the incantation of the mantras
peculiar to a particular Deity that causes the manifestation or
presence of the Deity or, according to some, the gratification
of the Deity.
C. A mere birthplace without a physical outward shape
may be a Deity. There is no question of consecration of
Swyambhu Deity. (See Addangi Nageswara Rao (supra)
D. In addition to Swyambhu Deities, Idols/Images are
made of any material and are CONSECRATED with the
Spirit of Supreme Being through certain Vedic rites, known
as Pran-Pratishtha whereby they become fit receptacles of
Divinity; such Idols/Images too are recognised as Deities. In
these Suits, the Plaintiffs of OOS 4 of 1989, Sunni Board &
others, admitted in paras 11 and 23 of their plaint that on
23.12.1949, "a large crowd of Hindus............entered the
mosque and desecrated the mosque by placing Idols inside
the mosque". This implies an admission that the Idols were
Deities as known to Hindu law, otherwise mere images (like
printed pictures) could not desecrate the mosque; Sunni
Board and others are barred/estopped, by this admission,
from urging that the Idols were not consecrated.
E. 'Images/Idols' are symbols of Supreme Being; in
worshipping the Image, the Hindu purports to worship the
Supreme Deity and none else. It is for the benefit of the
worshippers that there is a concept of Images of Supreme
1825
Being which is bodiless, has no attribute, is pure Spirit and
has got no second (B.K. Mukharjea, 1983 Edn. p.26). The
'Self-revealed' Images are called SWYAMBHU where the
Self-possessed Vishnu has placed himself on earth in stone
or wood for the benefit of mankind. Thus 'Asthan Ram
Janmabhumi', Plaintiff No. 2 in OOS 5 of 1989 is a
Swyambhu Deity - the place where Lord Vishnu manifested
Himself and was born as RAM, son of Kaushalya/King
Dashrath.
F. The decisions of Indian Courts as well as Privy
Council have held uniformly that Hindu Idol is a Juristic
Person. Hindu Idol is according to long established authority
founded upon the religious Customs of Hindus and
recognition thereof by Courts of Law, a juristic entity. 'Deity
has a juridical status with power of suing and being sued. Its
interests are attended to by the person who has the Deity in
his charge and who in law is his manager with all the powers
which would in these circumstances, on analogy, be given to
an infant heir. This doctrine is firmly established.
G. As a Juristic Person, the 'Hindu Deity' is a Class by
Himself with no exact parallel. The Deity in short is
conceived of as a living being and is treated in the same way
as the master of the house would be treated by his humble
servant. The daily routine of life is gone through with minute
accuracy, the vivified Image is regaled with necessities and
luxuries of life in due succession even to the changing of
clothes, the offering of cooked and uncooked food and
retirement to rest.
H. Endowment in favour of Deity is a perpetual estate; it
is capable of receiving and holding property, but it does not
1826
possess a power of alienation, hence endowment in favour of
Deity is necessarily a tied up or perpetual estate; absolute
gifts of lands or money perpetually to an Idol or for other
religious purposes have been held to be valid in Hindu Law
from early times. A religious endowment does not create
title in respect of the dedicated property in any body's
favour, and property dedicated for religious charitable
purpose for which the owner of the property or donor has
indicated no administrator or manager, a property dedicated
for general public use is itself raised to the category of a
Juristic Person and such a property vests in the property
itself as a Juristic Person. This special legal status squarely
applies to Asthan Ram Janma Bhumi, Plaintiff No.2 in OOS
5 of 1989; the spot where Ram was born, and all
properties appurtenant thereto belong to and vest in the
spot itself as juristic person. No body else, not even the
Shabait can become owner of the Deity or property of
Deity.
I. Since such vesting of the property is a perpetual estate
and the Deity itself does not possess the power of its
alienation, it follows that no law can divest the Deity of its
property under any circumstance whatsoever. A Temple is
the 'house' of the Deity. By destroying the house, neither the
Deity nor Deity's property, on which the house stood, could
cease to belong to Deity. Section 18 of Transfer of Property
Act recognises that the rule against perpetuity under that
Act, does not apply to transfer of property for the benefit of
public; such exclusion is in-built in Hindu Law itself.
J. Vide, page 19-20 of Mulla's "Principles of Hindu
Law, 1958 Edn, some of the important recognised
1827
Dharmashastras are known as Smritis of Manu (200 BC),
Yajnavalkya (1st Century AD -p. 24)), Narad (200 AD -p.
26)), Parashara, Brihaspati, Katyayana (4th-5th Century
AD - p.32) etc; they are of universal application, not in
substitution for another but all treated as supplementary to
each other (-p.20).
K. At page 33, Mulla records: "Katyayana maintains
unimpaired the distinctive qualities of Smriti of Brahaspati
to which he freely refers. His exposition is authoritative and
remarkable for its freshness of style and vigorous approach.
There can be little doubt that this Smriti must have been
brought into line with the current law. It must have
commanded a wide appeal as may readily be gathered from
the profuse manner in which it has been quoted in all leading
commentaries. The arduous task of collecting all the
available texts of Katyayana from numerous commentaries
and digests was accomplished by Mahamahopadhyaya Kane
who collated and published in 1933 about one thousand
verses of the Smrtiti on Vyavahara (Procedure) with an
English translation".
L. Statement of law in Katyayana Smriti is of special
significance in these suits. The force, sanctity and King's
duty relating to Temples has been strongly emphasised in the
Hindu Law from ancient times. Apararka [held to be an
Authority under Hindu Law by PC in Buddha Singh Vs.
Laltu Singh, 42 I.A. 208 = ILR (1915) 37 All 604) (Mulla
p.51-52 acknowledged by Banares School] says that King
should not deprive Temples of their properties (History of
Dharam Shastra - Government Oriental Series - by P.V.
Kane, Volume II Part II page 913). At page 911 Kane
1828
quotes Yagnavalkya that it is part of King's duty to prosecute
and fine persons interfering with or destroying the property
of Temples; he cites Manu (IX/280) requiring the King to
pronounce death sentence on who breaks a Temple, and him
who breaks an image to repair the whole damage and pay a
fine of 500 pannas. The Deity and Temple not only served
the object of Worship of Divine, but also served social
purpose.
M. A significant recent decision of English Courts has
recognised the concept of Hindu Idol's disability and
representation by 'next friend', namely Bumper
Development Corporation Ltd Vs. Commissioner of Police
of the Metropolis & Others (supra) (including Union of
India and other Indian Parties); a decision rendered by the
Trial Court was upheld by Court of Appeal and House Lords
refused Leave to Appeal against CA decision, popularly
known as Nataraj Case. In Tamil Nadu, near a 12th Century
Temple which had laid in ruins since 13th Century, (called
Pathur Temple), and remained un-worshipped since
centuries (at pages 643 & 640), a bronze Hindu Idol, known
as Siva Nataraj, was found by a labourer, Ramamoorthi, in
1976 during excavation of the ruins. The Nataraj Idol was
sold through several hands and ultimately reached London
market; criminal investigation for offence of theft of Idol
was started and London Metropolitan Police seized it.
Bumper Development Corporation laid claim to it as
purchaser and sued for its possession and damages. Several
other Claimants were impleaded to the suit: these included
Union of India, State of Tamil Nadu, Thiru Sadagopan
(Claimant No 3) as "the fit person" of the Temple and
1829
Temple itself (Claimant No. 4) through Claimant No3. (The
concept of "fit person" is same as "Next Friend" at page
643). During pendency of the proceedings, a Sivalingam
(which too was found buried in the ruins of the Temple) was
reinstated as an object of worship at the site of the Temple.
The Trial Judge, relying upon B.K.Mukherjea's Hindu Law
of Religious and Charitable Trusts (page 646 of Report)
held that Claimant No4 (Temple) suing through Claimant
No. 3 as 'fit person, or custodian or next friend' (page 643 of
Report) had proved his title superior to that of Bumper and
'the pious intention of 12th Century notable who gave the
land and built the Pathur Temple remained in being and was
personified by the Sivalingam of the Temple which itself
had a title superior to that of Bumper'. The Court of Appeal
upheld the finding of the Trial Court Judge that under Hindu
Law, the Temple was a juristic entity and Claimant No. 3
(next friend Thiru Sadagopan) had the right to sue and be
sued on behalf of the Temple. The right of the Temple
through the Next Friend to possess the Nataraj Idol was
upheld (page 648 of Report); House of Lords refused Leave
to Appeal (page 649 of Report). This 20th Century decision
of English Courts has striking similarity with the present
Ram Janmabhumi case: 12th Century Temple remained in
ruins & un-worshipped through centuries (in our case it was
11th-12th Century Vishnu-Hari Temple which was
demolished in 1528 and Babri Mosque, DS was erected at its
place, so that the Temple/Deity 'remained in ruins with
existing foundations'). During the pendency of Bumper
Development Corporation case, a Shivalingam, found buried
in the ruins of the Temple was 'reinstated'. In our case, ASI
1830
found an ancient 'Circular Shrine' embedded in disputed
area, DS was destroyed on 6.12.1992, and at its place a
make-shift Temple was erected at Ram Janma Bhumi with
Bhagwan Shri Ramlala installed in it; so both Deities Plffs 1
& 2 of OOS 5 of 1989 got into position. In Bumper case, the
'pious intention of 12th Century' dedication was held by the
Trial Court 'to remain in being' as personified by the
Sivalingam of the Temple, a juristic entity, which was
represented by 'Next Friend. The same concept is laid down
in the case of Adangi Nageswara Rao Vs. Sri Ankamma
Devatha Temple (supra) (paras 6 & 8 - see para 36 of these
Arguments). So also, in our case, Vishnu-Hari Temple of
11th-12th Century must be deemed 'to remain in being' on
erection of make-shift Temple coupled with Circular Shrine
and the Deity/Temple - Plaintiffs 1 & 2 must be held to be
duly represented through Plaintiff No. 3 in OOS 5 of 1989 as
Next Friend.
N. As mentioned earlier, a Hindu Deity is a Class by itself
(See Para 40), there is no exact analogy or parallel. Its affairs
are managed by a Shebait, but the Shebait is neither owner
nor trustee of the Deity or its property as known to Indian
Trusts Act (Section 1). 'Beneficiary' of the dedication (actual
or assumed) is the Deity and every Worshipper/Devotee; the
latter has interest enough to force the Shebait to perform his
functions duly even through a Court action, if necessary.
Supreme Court has held in the case of Bishwanath Vs. Sri
Thakur Radha Ballabhji (AIR 1967 SC 1044) that
worshippers of an Idol are its beneficiaries, though only in a
spiritual sense, and persons who go in only for the purpose
of devotion have, according to Hindu Law and religion, a
1831
greater and deeper interest in temples than mere servants
who serve there for some pecuniary advantage; it goes on to
say: "That is why decisions have permitted a worshipper in
such circumstances to represent the Idol and to recover the
property for the Idol". It is the duty of the State (King) to
protect the Deity and its property - a shade of this duty is
found in Section 92 CPC. [In para 40 of Guruvayur
Devasom Managing Committee Vs. C.K. Rajan, AIR 2004
SC 561, the Supreme Court has held, "In any event, as a
Hindu Temple is a juristic person, the very fact that S. 92 of
the Code of Civil Procedure, seeks to protect the same, for
the self-same purpose, Arts. 226 and 32 could also be taken
recourse to."] Shebait cannot alienate the property of the
Deity.
O. A religious endowment does not create title in respect
of the dedicated property in any body's favour, and property
dedicated for religious charitable purpose for which the
owner of the property or donor has indicated no
administrator or manager, a property dedicated for general
public use is itself raised to the category of a Juristic Person
and such a property vests in the property itself as a Juristic
Person. This special legal status squarely applies to Asthan
Ram Janma Bhumi, Plaintiff No.2 in OOS 5 of 1989; the
spot where Ram was born, and all properties appurtenant
thereto belong to and vest in the spot itself as juristic person.
P. An idol is in the position of a minor and when the
person representing it leaves it in a lurch, a person interested
in the worship of the idol can certainly be clothed with an ad
hoc power of representation to protect its interest. [See
Bishwanath Vs. Shri Thakur Radha Ballabhji (supra)].
1832
Q. Temples are sancrosanct and there cannot be alienation
of a public temple under any circumstance being res extra
commercium. In this regard he placed reliance on
Mukundji Mahraj Vs. Persotam Lalji Mahraj (supra)
(Para 28-29); Manohar Ganesh Tambekar Vs. Lakhmiram
Govindram (supra) (Para 88); Kali Kinkor Ganguli Vs.
Panna Banerji (supra) (Paras 24-25, Page 1936); and, Kasi
Mangalath Nath Illath Vishnu Namboodiri (supra) (Para
2).
R. Smt. Panna Banerjee Vs. Kali Kinkar (supra) (Para 65-
66) cited to show that the deity cannot be sold. It is not a
property and none can be its owner not even its founder.
S. Khetter Chunder Ghosh Vs. Hari Das
Bandopadhyay (supra) (para 66, p. 559) is an authority for
the proposition that the deity is not a property. None can
own it. Idol is not a transferable property.
T. The fact is that the "disputed area" has always been
considered to be the " Deity" . The deity in the present case
is "Sri Ram Janmasthan", being the place where "Sri Ram
Lalla" is Virajman that is resident. The said "disputed area"
has always been considered sacred by the Hindus before and
even after the construction of the disputed structure. The
extensive archaeological evidence found by excavation by
the Archaeological Survey of India clearly shows that before
the construction of the structure known as the "Babri
Masjid" in 1528 , there was an existent Hindu temple
underneath it.
U. "The Hindu Law of Religious and Charitable
Trusts" by B.K. Mukherjea also states at Page 160-162:
"Para 4.13. ....... The Smriti writers have laid down that if
1833
an image is broken or lost another may be substituted in
its place; when so substituted it is not a new personality
but the same deity, and properties vested in the lost or
mutilated thakur become vested in the substituted thakur.
Thus, a dedication to an idol is really a dedication to the
deity who is ever-present and ever-existent, the idol being
no more than the visible image through which the deity is
supposed specially to manifest itself by reason of the
ceremony of consecration."
V. Presence of an idol is not the only consideration to
determine whether the place is a temple or not; what is
important is whether a certain group of Hindus consider it
sacred or whether a certain group can feel "divine presence"
in the place.
W. An Idol is not a precondition. If the public goes for
worship and consider that there is a divine presence, then it
is a temple. He relied on Ram Janki Deity Vs. State of
Bihar, 1999 (5) SCC 50 (Paras 13 to 19); P.V. Durrairajulu
Vs. Commissioner of Hindu Religious Trusts, AIR 1989
Madras 60 (Para 18).
X. Referring to Poohari Fakir Sadavarthy of Bondilipuram
(supra) (Para 8) Sri Pandey contended that the institution
will be a temple if two conditions are satisfied - one - it is a
place of public religious worship - and the other - it is used
as of right by the Hindu community or any section thereof as
a place of worship. (See
Y. Existence of idol not necessary if the public which go
there consider that there is a divine presence in a particular
place and by offering worship at that place they are likely to
be the recipient of the bounty or blessings of God, then you
1834
have got the essential feature of a temple. The test is not the
installation of an idol and the mode of its worship. Here Sri
Pandey refers T.R.K. Ramaswamy Servai and Anr. Vs.
The Board of Commissioners (supra) (Para 47); Board of
Commissioners of Hindu Endowment Vs. P. Narasimha
(supra) (Para 5 page 135); and Gedela Satchidanand Murti
(supra) (Para 16, pages 684 and 685).
Z. The nature of Hindu religion is monism. It believes in
one supreme-being who manifests himself in many forms.
This is the reason why Hindus start adoring any deity either
handed down by tradition or brought by a Guru, Swayambhu
and seek to attain the ultimate supreme as held in Sri Adi
Vishweshara of Kashi Vishwanath Temple (supra) (Para
30 page 631).
AA. According to Hindu notion what is worshipped in a
temple is not the stone image or image made of wood. It is
the God behind the image which is the object of worship.
The real owner of the property dedicated to a temple is
deemed to be God himself represented through a particular
idol or deity which is merely a symbol. Property worshipped
for more than 300 years, there can be no direct evidence of
consecration. After the length of time it is impossible to
prove by affirmative evidence that there was consecration.
However, the idol was duly recognized by all who believed.
[See Gokul Nath Ji Maharaj Vs. Nathji Bhogilal (supra)
(para 4 and 5)].
AB. Not only the area where Sri Ram Lalla is Virajman and
is believed to be his place of birth as a deity but the entire
complex is elevated to the status of a deity because the
dedicated property gets imbued with a sacred character.
1835
AC. Mahant Ram Saroop Dasji Vs. S.P. Sahi (supra)
(Pages 958-959, Paras 10 & 12) was cited and it is submitted
that it is difficult to visualize that a Hindu private Debuttar
will fail for a deity is immortal. Even if the idol gets broken
or lost or stolen another image may be consecrated and it
cannot be said that the original object has ceased to exist. An
idol which is a juridical person is not subject to death
because the Hindu concept is that the idol lives for ever and
placed reliance on Idol of Thakur Sri Govind Dev Ji
Maharaj (supra) (Page 908, Para 6 ).
AD. Deity is a living being to be treated like a master. It is
not a moving chattel. Hindu idol is not property. Custodian
cannot destroy or cause injury. Pramatha Nath Mullick Vs.
Pradhyumna Kumar Mullick (supra) (Para 9).
AE. Referring to Full Bench decision of Calcutta High
Court in Bhupati Nath Smrititirth Bhattacharjee (supra)
(Para 73) Sri Pandey contended that as per Shastric Hindu
Law if the image is broken or lost another may be substituted
in its place and when so substituted it is not a new
personality but the same deity with properties previously
vested in the lost or mutilated Thakur.
AF. The question as to what "portion" of the property is
sacred is irrelevant since Hindus consider the entire area
being the place of birth of Sri Ram as a deity in itself being
the " Sri Ram Janmasthan / Sri Ram Janmabhoomi", being
the Plaintiff No.2 .The presence of Sri Ram Lalla Virajman,
being the Plaintiff No.1 on the said Sri Ram Janmasthan
( being the Plaintiff No.2 )does not detract from the fact that
the entire disputed area is the place of birth of Sri Ram and
therefore a deity in itself to the Hindus. The witnesses
1836
including foreign travelers have repeatedly confirmed that
the entire premises has been worshipped, "parikrama" was
undertaken by the devotees, even after the construction of
the disputed structure. He submitted that there has been no
denial of the above statement by any of the parties . He
referred to paras 20 and 22 of the plaint and pointed out that
the same have not been denied.
AG. Any worshipper is entitled to act on behalf of the Idol
if the idol is undefended by a Shebait and cannot look after
itself. This view finds support in Bishwanath Vs. Shri
Thakur Radha Ballabhji, (supra) (para 10 and 11) and
Veruareddi Ramaraghava Reddy Vs. Konduru Seshu
Reddy, 1966 Supp SCR 270.
AH. In the present case since the deities of Sri Ram
Janmabhumi and Sri Ram Lalla Virajman were not being
able to look after themselves and no one was acting to
protect their interests and their premises were being
occupied or was being attempted to be occupied by those
who were intending to extinguish the very right to be
worshipped of the deities and repeated attempts were being
made to interfere with the possession and the right of being
worshipped by the devotees , hence concerned worshippers
compromising of eminent and spiritual men of the Hindu
community being represented by the Plaintiff No.3 were
forced to approach the Court to protect the right of the
deities (being the Plaintiffs No.1 and 2 ) to be worshipped .
AI. In support of the contention that the place of worship
itself and the Deities seated at the disputed site are juridical
persons Sri M.M. Pandey relied on Guruvayur Devaswom
Managing Committee and anr. Vs. C.K. Rajan (Supra);
1837
Manohar Ganesh Tambekar Vs. Lakhmiram Govindram
(supra); Avadh Kishore Dass Vs. Ram Gopal, 1979 SC
861; Angurbala Mullick Vs. D. Mullick, AIR 1951 SC 293;
Kamaraju Venkata Krishna Rao Vs. Sub-Collector,
Ongole, AIR 1969 SC 563; Thayarammal Vs.
Kanakammal (supra); Krishna Singh Vs. Mathura Ahir,
AIR 1972 Allahabad 273; Sarangadeva Periya Matam Vs.
Ramaswami Goundar, AIR 1966 SC 1603;
Vallabhacharya Swami Varu (Deity) of Swarna Vs. Deevi
Hanumancharyulu, AIR 1979 SC 1147; Gollaleshwar Dev
Vs. Gangawwa Kom Shantayya Math, AIR 1986 SC 231;
Shiromani Gurudwara Prabandhak Committee Amritsar
Vs. Shri Som Nath Dass (supra); Hindu Religious and
Charitable Endowments, Mysore Vs. Ratnavarma
Heggade, AIR 1977, SC 1848; Ram Jankijee Deities Vs.
State of Bihar (supra) (p.50); Gokul Nathji Maharaj Vs.
Nathji Bhogi Lal (supra); Bishwanath Vs. Shri Thakur
Radhaballabhji, (supra); Kalanka Devi Sansthan (supra);
Jogendra Nath Naskar Vs. Commissioner of Income-tax
(supra); P.V. Sadavarty Vs. Commissioner of Income-tax,
AIR 1963 SC 510; Gurudwara Prabandhak Committee
Vs. Shiromani GPC, 2004 (4) SCC 146; Deoki Nandan Vs.
Murlidhar (supra); Official Trustee of West Bengal Vs.
Commissioner of Income-tax, AIR 1974 SC 1355; Idol of
Thakurji Shri Govind Deoji Maharaj, Jaipur (supra);
Vemareddi Ramaraghava Reddy Vs. Konduru Seshu
Reddy, AIR 1967 SC 436; K. Manahunaitha Desikar Vs.
Sundaralingam, AIR 1971 Madras 1 (FB).
1708. Sri K.N. Bhat, Senior Advocate answering the issues
no. 1 and 2 (Suit-5), contended that Bhagwan Sri Ram of
1838
Ayodhya is undoubtedly a deity as such a juristic person with
capacity to sue and being sued. Referring to B.K. Mukherjea's
Hindu Law of Religious and Charitable Trusts (supra) in his
written arguments he says:
A. "A Hindu idol", the Judicial Committee observed in
one of its recent pronouncements, "is according to long
established authority founded upon the religious customs
of the Hindus and the recognition there of by Courts of
Law, a juristic entity. It has a juridical status with the
power of suing and being sued." You should remember,
however, that the juridical person in the idol is not the
material image, and it is an exploded theory that the
image itself develops into a legal person as soon as it is
consecrated and vivified by the Pran Pratistha ceremony.
It is not also correct that the Supreme Being of which the
idol is a symbol or image is the recipient and owner of the
dedicated property. ( p.38.)
B. From the spiritual standpoint the idol might be to the
devotee the very embodiment of Supreme God but that is
a matter beyond the reach of law altogether. (p.39.)
C. The early Vedic hymns make no allusion to idol
worship, and Max Muller held that idolatry did not exist
among them. 'The religion of the Vedas,' he declared,
'knows no idols.' The Jabala Upanishad says, 'Images are
meant only as aids to meditation for the ignorant'. (p.149)
D. The image simply gives a name and form to the
formless God and the orthodox Hindu idea is that
conception of form is only for the benefit of the
worshipper and nothing else. (p.153.)
E. "The idol, deity or religious object," observed West
1839
and Buhler in their Digest on Hindu Law, "is looked upon
as a kind of human entity." It is a sacred entity and ideal
personality possessing proprietary rights. The Judicial
Committee has pointed out on more occasions than one
that it is only an ideal sense that property can be said to
belong to an idol and the possession and management of it
must, in the nature of things, be entrusted to some person
as Shebait or manager. The legal principle has thus been
summed up in one of the pronouncements of the Judicial
Committee:
F. "A Hindu idol is, according to long-established
authority, founded upon the religious customs of the
Hindus, and the recognition thereof by courts of law, a
'juristic entity.' It has a juridical status, with the power of
suing and being sued. Its interests are attended to by the
person who has the deity in his charge and who in law is
its manager, with all the powers which would, in such
circumstances, on analogy, be given to the manager of the
estate of an infant heir. It is unnecessary to quote the
authorities; for this doctrine, thus simply stated, is firmly
established."( pp.158)
G. Existence of idol is not necessary for temple.-
While usually an idol is instituted in a temple, it does not
appear to be an essential condition of a temple as such. In
an Andhra case, it was held that to constitute a temple, it is
enough if it is a place of public religious worship and if
the people believe in its religious efficacy, irrespective of
the fact whether there is an idol or a structure or other
paraphernalia. It is enough if the devotees or the
pilgrims feel that there is one superhuman power which
1840
they should worship and invoke its blessings. (pp.158-
159.)
H. Moreover, - and this was pointed out by Chatterjee,
J., who was a member of the Full Bench - the conception
of Hindu jurists was not that the image of clay or stone
constituted the juristic person. The Smriti writers have
laid down that if an image is broken or lost another may
be substituted in its place; when so substituted it is not a
new personality but the same deity, and properties vested
in the lost or mutilated thakur become vested in the
substituted thakur. Thus, a dedication to an idol is really a
dedication to the deity who is ever-present and ever-
existent, the idol being no more than the visible image
through which the deity is supposed specially to manifest
itself by reason of the ceremony of consecreation. The
decision in Bhupati Smrititirtha v. Ramlal has been
followed by other High Courts in India, and it has been
held by the Allahabad High Court in Mohor Singh v. Het
Singh that a bequest to complete the building of a temple
which was commenced by the testator and to install and
maintain an idol therein was a valid bequest under the
Hindu law.( pp.162-163)
I. A donor can certainly create a trust for the worship
of an idol which is to be consecreated and established in
future. The same principle applies if the deity is such as is
worshipped periodically like Durga, and has no permanent
image. The dedication of property for carrying on such
periodical worship is perfectly valid, although every year
a new clay image is prepared which is thrown into the
river after the Puja is over. (p.163)
1841
J. Where there is no deed, no question of construction
arises, and the validity or otherwise of the endowment
would have to be determined entirely on circumstantial
evidence. In Ram Ratan Lal v. Kashnath Tewari, the Patna
High Court has discussed the relevant considerations and
the evidence needed for deciding the question how far the
endowment is illusory. (p.167)
K. Reference may also be made to the judgments of the
Supreme Court in Idol of Thakurji Shri Govind Deoji
Maharaj (supra); Bishwanath and Anr. Vs. Shri
Thakur Radhaballabhji (supra); Jogendra Nath Naskar
(supra); Kalanka Devi Sansthan Vs. Maharashtra
Revenue Tribunal (supra); Official Trustee of West
Bengal Vs. C.I.T., West Bengal (supra); Dr M. Ismail
Faruqui (supra); and Ram Jankijee Deities (supra).
L. Plaintiffs in paragraphs 19, 20 and 21 have
specifically pleaded and given the reasons why the place
believed to be the birth place of Lord Sri Rama itself is a
deity. That a 'place' can be an object of worship is now
beyond doubt on account of the decisions of the Supreme
Court in Faruqi's case and in Ram Janki's case - (1999) 5
SCC p.50 also Mukherjea pp 158-9 quoted supra.
M. The extracts quoted above from Mukherjea's
treatise clearly brings out the distinction between a
physical object, namely, an idol and a deity, though the
two are used occasionally as inter-changeable expressions.
What emerges is that it is a mistake to consider that there
must be a physical object, namely, an idol before there can
be a deity.
N. There can be no doubt now that a deity is a juristic
1842
person and can sue through a next friend appointed by
courts - see AIR 1967 SC 1044 . The present plaintiff 3
Sri.Trilokinath Pandey was appointed by the order of the
Hon'ble Supreme Court.
O. Issues Nos. 21 and 22 are also closely connected
and stand answered. It is made clear that the plaintiffs are
not claiming that the idols alleged to have been placed
under the dome in December, 1949 are the plaintiff
deities- the idols are for the benefit of the devotees.
1709. The case of defendant no.3 (Suit-4), i.e., Nirmohi
Akhara has been/is that the temple at Ram Chabutara belong to
Nirmohi Akhara since long, was its property including the idols.
It is not in dispute that Hindu idol, after its due consecration,
becomes a legal personality but in the case in hand, Nirmohi
Akhara, a religious endowment was managing the said temple
and worshipping the idol hence in any case it stood in the
capacity of Shebait of the said idol. The said status of Nirmohi
Akhara was never terminated at any point of time and therefore,
no suit on behalf of such an idol could have been filed by
ignoring defendant no.3 and that too in the absence of any
allegation of inaction or mal-action on the part of the Shebait i.e.
Nirmohi Akhara. In support Sri Verma also placed reliance on
Commissioner, Hindu Religious Endowments, Madras Vs. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra)
and Kunwar Singh Vs. Sri Thakurji Mahraj, Birajman
Mandir Gauntia Majra Dhamipur, Pargana and Tahsil
Nawabganj, District Bareilly, 1992 (2) AWC 890.
1710. The pleadings, argument etc. over these issues require
us to consider the matter from two different angles:
(i) Whether plaintiff no.1 is a Deity in terms of Hindu
1843
Law. Its effect,
(ii) Plaintiff no.2 is a place and therefore, first of all it has
to be seen whether a place by itself can be a Deity and be
conferred status of legal person in the light of principles of
Hindu Law.
1711. If both these aspects about the Deities are decided in
affirmance only then we will have to consider whether there was
any Shebait of the said two plaintiffs and whether the plaintiff
no.3 has rightly filed the suit in question as their next friend.
1712. First we first propose to consider, though in brief, as to
how the idol worship came to exist, the concept form and the
foundation etc., in the light of available ancient Hindu scriptures
as also the judicial precedents.
1713. One of the oldest Aryan scripture i.e. the Rigveda
refers to the worship of natural powers like sun, water, air etc.
but according to Max Muller, "the religion of the Vedas knows
of no idol". He (Muller) says that the worship of idols in India is
a secondary formation, a later degradation of the more primitive
worship of ideal gods. B.K.Mukherjea in Hindu Law of
Religious and Charitable Trusts (supra) on page 13 has said:
"There is a difference of opinion amongst scholars as to
whether the religion that is embodied in the Vedas was at
all polytheistic. A number of gods indeed are named, but
there are various passages in the Rigveda which expressly
declare that the various gods are only different names of
that "which is one". Max Muller calls the religion,
"henotheism". The gods to whom the hymns of the Rigveda
are addressed are idealised beings, who represent the
beneficient and radiant powers of nature, e.g., sun, air,
earth, sky, dawn, etc. But the Vedic seers had, from the
1844
beginning, a glimpse of the infinity behind these finite
forces, as is shown by the conception of 'Aditi' the mother
of the gods which, as Max Muller says, was the earliest
name invented to express the infinite." (emphasis added)
1714. Similarly, about the existence of 'temple' or 'monastic
institution' in Vedic age, B.K. Mukherjea in Hindu Law of
Religious and Charitable Trusts (supra), on page 13 and 15
has said :
"It is difficult to say to what extent the charitable and
religious endowments as we see in modern times existed in
the early Vedic period. The earliest Vedic literature which
is known by the name of Samhitas throws very little light on
this point. It seems fairly certain that at this period there
were no temples for worship of idols as we find in
subsequent time, and an institution like the mutt or
monastery of later days was also unknown."
"There is also no mention of monastic institution in the
Vedic literature. According to the Vedic Grihya Sutras,
which regulated the life of man, there were the institutions
of four Asramas prescribed for all persons belonging to the
twice born castes. Man's life was divided according to this
scheme into four Asramas or stages. The first stage was of
Brahmachari or student who was to live in the house of hi
preceptor and study the Vedas living a life of utmost
austerity and discipline. In the second stage he married
and became a householder or Grihastha and his duty was
to perform the religious and secular works that were
prescribed for this stage of life. In the third which was the
Banaprastha stage, he was to live the life of a recluse, and
in the last stage he became a Jati or ascetic." (emphasis
1845
added)
1715. Sri B.K. Mukherjea's above observation has come
after his concurrence with the views of some historians at that
time and particularly Europeans that Aryans migrated to India
from elsewhere and Vedic literature is the scripture of Aryan
culture. This is evident from what the learned author in para
1.11, page 10, has observed with respect to Rigveda; "In the
Rigveda, which is the earliest record of Aryun culture...."
1716. In 'Development of Hindu Iconography' by Jitendra
Nath Banerjea (First Edition in 1941 and 5th Edition in 2002
published by Munshiram Manoharlal Publishers Pvt. Ltd.), the
learned author opines:
"The nature of the prehistoric remains just discussed
cannot be determined with certainty on account of the
absence of any literary data throwing clear light on them ;
but with the help of certain passages occurring in the
Rgveda, the earliest extant literature of the Indo-Aryans, it
is possible to offer a tentative explanation about some of
them. It may be observed, however, that in India, prior to
the advent of the Aryans, image-worship might have
been practised by her original settlers. But it is still a
matter of doubt and controversy when this was first
introduced among the Aryans who migrated into India.
From the beginning of the scientific method of Vedic
studies in India this question engaged the attention of
scholars." (Page 42) (emphasis added)
1717. Thereafter, the learned author referred to the views of
Max Muller, who said that the Vedic religion knew of no idols
and it was a secondary formation. This has been reiterated by
H.H. Wilson and Macdonell. Banerjea, then has also referred to
1846
a contrary view expressed by Bollensen.
1718. Sri S.V. Venkateswara, after considering rival
opinions of several authorities on the subject, expressed his
opinion that Vedic evidence was not at all sufficient for
deciding whether gods were iconically represented in earlier
Vedic period or not. His later observations have been quoted by
J.N. Banerjea in The Development of Hindu Iconography
(supra) as under :
"In a later contribution (Rupam, Nos.42-4, 1930), he was
more definite, and he collected numerous additional
passages from the Rgveda and other Vedas in support of
his view ; he even used the term iconography in relation to
the representation of the Vedic deities. He assigned the
foremost place to the well-known verse in the Rgveda, IV.
24, 10, which was also noticed by Macdonell and others.
The latter thought that it was a late passage probably
containing an allusion to some concrete symbol of Indra. It
is : Ka imam dasabhirmamendram krinati dhenubhih I
Yada vrtrani jamghanadathainam me punardadat ('Who
will buy this my Indra for ten cows? When he has slam his
foes, he may give himback to me'). Venkateswara remarks
about the passage thus : "The context shows that there
were permanent images of Indra made and hired for what
was in probability an Indra festival, and there were
apparently images of Vrtra made for each occasion,
whence the plural Vrtrani to be slain by Indra." With
regard to R.V., V. 52, 15, noticed above, Venkateswara
makes this significant observation, " this passage is also
interesting in that it shows that there was no idol worship,
but that images were used as concrete representations of
1847
gods whose real form and existence were conceived as
different." The existence of two forms of each god, one the
concrete and finite and the other the abstract and infinite,
is clear according to him in a Yajurveda passage (T.S., I. 7.
12; also A.V., VII. 31) which reads svaya tanva
tanumairayata ('with your own, i.e., real, body enter this
concrete body'). In his opinion, the image is regarded in
the Rgveda merely as a physical tenement of the real
form of the god, while in these texts we have two forms of
the god mentioned- that in the image being only an
apparent and evanescent form, and that in the universe
being the real and permanent form (sva tanuh). He finds
reference to the relationship of these forms, finite and
infinite, of the god even in the Rgveda (VII. 100, 6) which
speaks of Visnu's assumption of another, the finite form in
the battle with Vrtra, where he was a worthy companion of
Indra (yadanyarupah samithe babhutha) ; Indra, who used
Visnu as his vehicle (Visnvanusthitah), asked him to
expand into the infinite space (sakhe Visno vitaram
vikramasva) elbowing Vrtra out of existence till the latter
begged to be received into the body of Indra himself. From
this Venkateswara concluded that the belief was that the
finite cabined in a particular form was not cribbed or
confined by this fact but was capable of infinite expansion.
He finds distinct references to the fashioning of images in
such passages as R. V., VI. 28, 6 (asriram cit krnutha
supratikam i.e., 'make that which was an ugly mass a
beautiful image'); R.V., IV. 17, 4 (Indrasya karta
svapastamo bhut, i.e., 'the maker of Indra was a most
stalwart being, a most skilful workman'); casting of metal
1848
images is also referred to in the Rgveda and other Vedas in
such passages as R.V., VIII. 69, 12 (surmyam susiramiva,
i.e., 'like a hollow tube'), R.V., X. 184, 1 (Visnuryonim
kalpayatu tvasta rupani pimsatu 1 A sincatu
prajapatirdhata garbham dadhatu te, i.e., 'May Visnu make
the female organ fit ; may Tvasta fix the limbs ; may
Prajapati sprinkle ; may Dhata hold your embryo'), R.V., I.
32, 2 (Tvastasmai vajram svaryam tataksa, i.e., 'Tvasta
made the thunderbolt for Indra, which could be far flung'),
etc. He further finds references to temples (devagrhas) in
such passages as R.V., VII. 56, 14 (Sahasriyam damyam
bhagametam grhamedhiyam maruto jusadhvam, i.e., 'Oh!
Maruts accept this your portion offered at the temple'),
R.V., VII. 59, 10 (Grhamedhasa, i.e., the Maruts in the
houses are munificent), etc. Venkateswara thinks that this
inference from the passages is supported by the finds of
images of the storm gods in Babylonia. He even finds
allusion to processions of images in R.V., I. 10, 1 and III.
53, 5-6. "In the latest (Khila) Vedic texts, the goddess Sri is
represented as a golden antelope adorned with garlands of
silver and gold" (he obviously refers to the Sri Sukta in this
statement)." (Pages 45 - 47) (emphasis added)
1719. B.K. Mukherjea in Hindu Law of Religious and
Charitable Trusts (supra) refers to "Gautama's Dharmasuttra"
and says that there is some reference to idols but the age of the
work is unknown, and it does not specify any particular idol or
idols. It says that the gods that are popularly worshipped by the
Hindus at the present day are, for the most part, Pouranic
deities, descriptions of which occur in various Puranas. The
"Puranas" literally mean ancient legends constitute a class of
1849
epic literature, didactic in character, which deal with various
matters including cosmogony, the genealogies and exploits of
gods, sages and kings, accounts of the different Avatars or
incarnations of Vishnu, as well as the rites of worshipping gods
by prayers, fasting, votive offerings, pilgrimages, etc. On page
25 B.K. Mukherjea further says :
" The Purans are sectarian, in the sense that some of them
extol the merits of worshiping Vishnu, while many prefer
Siva worship. The Upanishads which embody the
philosophical concept of the Vedas describe Brahman or
the Supreme Being as "that from which all things are born,
that by which when born they live and into which they enter
at death." These creative, preservative and destructive
functions or aspects of the divinity constitute the Trinity of
the Puranas and are symbolised respectively by Brahma,
Vishnu and Siva. The Puranas say expressly that Brahma,
Vishnu and Siva though three in form really constitute one
entity and there is no difference amongst them except that
of attributes. The reason is that each of the functions of
creation, preservation and destruction implies the others
and contains the others in a latent form. The worship of
Brahma is not very popular, and I am not aware of any
temple being dedicated to this creative deity except one at
Pushkar, seven miles to the north-west of Ajmer in
Rajasthan. The images that are worshipped are generally
those of Siva or vishnu in their various forms or
manifestations. The worship of Sakti or the female
principle which is described as the consort of Siva in the
different forms of Durga, Kali etc. is also popular and is
the special feature of the Tantric system. Besides Siva,
1850
Vishnu and Durga, the other deities, who are generally
adored by the Hindus, are Ganesh and Surya (Sun), and
the numerous temples that adorn the various sacred places
of the Hindus are dedicated for the most part to one or
other of these five gods or Pancha Devata as they are
called."
1720. It is said that the Vedic mythology was merely
elaborated in Puranas. In this regard, B.K. Mukherjea, on pages
152 and 153 Para 4.3B has observed "
"This is not wholly or even substantially true. The sources
of some of the legendary stories occurring in the Puranas
can, no doubt, be traced in the Vedas but it would not be
correct to say that the Pouranic gods were mere
reproductions of the Vedic gods. There is nothing in the
Vedas corresponding to the Pouranic Trinity of Brahma,
Vishnu and Siva. Brahma in the Vedic text signified the
Sun, or was a synonym of prayer. Vishnu in the Rigveda
occupied a rather subordinate position. He was also
identified with the Sun, and his three strides encompassing
the three spheres of existence, as suggestive of all
pervasiveness constituted the foundation of the Pouranic
legend of the three steps of Vishnu in his incarnation of the
"Dwarf." Siva hardly appears as the name of any deity in
Vedic time. The expression "Siva" means propitious or
benignant. Rudra, one of the Vedic deities, was in all
probability, another name of Agni or fire, and the Puranas
identified Siva with Rudra. We hear very little of Ganapati
or Kartikeya in the Vedas. Kali, who is described in the
Puranas as a consort of Siva, was spoken of in
Mandukopanishad as one of the seven tongues of fire, while
1851
the name of "Uma" occurs in the Kenopanishad, where
she is described as a resplendent lady who gave lessons in
divine knowledge to the gods. Sri Krishna, who looms so
large in the Pouranic literature, is mentioned only as a
scholar and not as a deity in the Vedas, though many of the
legendary stories attributed to him in the Purans are
traceable to similar legends associated with Indra in the
Vedic literature.
It is not necessary for our present purpose to pursue these
discussions any further. Though the Puranas are by no
means uniform, the legends associated with the various
gods are fairly well known and have been the basis of a
considerable mass of poetic literature in later times. One
cardinal principle underlying idol worship you would
always bear in mind- and this has some bearing on the law
relating to gift of property to idols- that whichever god the
devotee might choose for purposes of worship and
whatever image he might set up and consecrate with that
object, the image represents the Supreme God and none
else. There is no superiority or inferiority amongst the
different gods. Siva, Vishnu, Ganapati or Surya is extolled,
each in its turn as the creator, preserver and supreme lord
of the universe. The image simply gives a name and form
to the formless God and the orthodox Hindu idea is that
conception of form is only for the benefit of the
worshipper and nothing else." (emphasis added)
1721. Para 1.33 (page 26) of B.K. Mukherjea's Hindu Law
of Religious and Charitable Trusts (supra) says that different
images do not represent separate divinities; they are really
symbols of the one Supreme Being, and in whichever name and
1852
form the deity might be invoked, he is to the devotee the
Supreme god to whom all the functions of creation, preservation
and destruction are attributed. In worshipping the image the
Hindu purports to worship the Supreme Deity and none else.
The rationale of image worship is thus given in a verse which is
quoted by "Raghunandan":
"fpUe;L;kf}rh;L; fuLdyL;k'kjhfj.k
lk/kdkuka fgukFkf; czgE.kh #idYiuk A^^
"It is for the benefit of the worshippers that there is
conception of images of Supreme Being which is bodiless,
has no attribute, which consists of pure spirit and has got
no second."
1722. Some of the aspects of image worship have been
referred to by Sri P.N. Mishra, Advocate which we have already
quoted in extentio in para 1695 (A-J) which are also based on
the Hindu scriptures against which nothing has been placed by
the learned counsels appearing for pro-mosque parties and,
therefore, we have no reason to doubt correctness thereof.
1723. The next step is the building and consecration of
temples along with the establishment of idols worshipped in
Hindu religion, elaborate rites and ceremonies. It appears to
have been introduced by Brahminical writers. They have
elaborated the procedure, steps regarding building of temples,
consecration and purification of idols etc.
1724. A temple is the house of the deity and many of the
rules of construction of a temple are practically the same as are
prescribed for construction of a dwelling house, the additional
rules being laid down to ensure greater sanctity of the structure
that is meant for the abode of a deity. One who wants to built a
temple has got to select proper time for building with reference
1853
to astrological calculations. There are detailed rules relating to
selection of the site which include examination of the nature and
colour of the soil, its odour, taste, solidity, etc. After the site is
selected, it is ploughed up and seeds are sown in it. As soon as
the seeds germinate, the crop is allowed to be grazed over by
cows. The cardinal points are then to be ascertained for giving
this structure an auspicious aspect and there are rules to be
observed regarding the materials to be used and the location of
doors, windows, etc. The important religious ceremony is the
"Vastu Jaga" in honour of "Vastu Purusha" or "Vastu Debata"
who presides over dwelling house, with oblation of milk, rice
and sugar.
1725. A temple, in the original sense of the Latin word
'templum', meant a rectangular place marked out by the augur
for the purpose of his observations which were taken within a
rectangular tent and gave it meaning of a consecrated place or
building of rectangular shape 'inaugurated' by an augur. It may
be applied in this sense to the house of a God. In its primitive
sense 'templum' means a place marked off as a road to God. In
ancient Hindu Religious Texts, the word ^izklkn^ has been taken
to mean and denote 'temple'. In Matsya Purana, it is written:
^^,oeso iqjk.ks"kq rM+kxfof/k:P;rs]
dwiokihlq lokZlq rFkk iq"ifj.kh"kq pA
,"k,o fof/kn`"V% izfr"Bklq rFkSo p]
eU=rLrq fo'ks"k% L;kr izlknks|kuHkwfe"kqAA
(The rules which are recognised for pratishtha and utsarga
of tanks, water reservoirs, etc., should be observed in the
case of garden and temples but with necessary variation in
mantras.)
1726. The foundation of temples and consecration of an
image in the temple are two different subjects. In Hindu system
1854
of worship, temple is not merely a place of idol, but is also a
place of worship. In 'Hindu temple' by Cramerish, it is said :
"The surface of the Earth, in traditional Indian
Cosmology, is regarded as demarcated by sunrise and
sunset, by the points where the sun apparently emerges
above and sinks below the horizon; by the East and West
and also by the North and South points. It is therefore,
represented by the ideogram or mandala of a square (F.N.
44- The square does not refer to the outline of the Earth). It
connects the four points established by the primary pairs of
opposites, the apparent sunrise and sunset points East and
West; South and North. The Earth is therefore called
'Caturbhrsti' four cornered (Rv. X. 58. 3) and is
symbolically shown as Prithvi-Mandala, whereas
considered in itself, the shape of the Earth is circular. (Rv.
X. 89. 4; S.B. VII. I. I. 37). The identification of the square
with the vedi is in shape only and not in size and belongs to
the symbolism of the Hindu temple. The vedi represents and
is levelled Earth, a place of sacrifice or worship: 'No part
of the ground should rise above it: for it was from there
that the God ascended to heaven' (S.B. III. I.I.I-2). The site,
the Earth should be even and firm for it is the starting
place of the ascent (S.B. VIII 5.2.16). The link between the
Earth and the end of the ascent stretches upwards into
space. The intermediate region (antriksa) from it also leads
downward and rests on Earth. In it the temple has its
elevation. The Vastupurusamandala, the temple diagram
and metaphysical plan is laid out on the firm and level
ground; it is the intellectual foundation of the building, a
forecast of its ascent and its projection on Earth."
1855
1727. About the construction of the temple, it has been said:
^^d`Rok izHkwoa lhyyHkjkHkfUofuos'; pA
nsokr;rua dq;kZ|'ks/kekZfHko`);sAA
b"VkiwrZsu yH;Urs;s yksdkLrku~ cqHkw"krkA
nsokukeky; dk;ksZ };eI;= n`';rsAA
(On the land where, sufficient source of water is available,
beautiful gardens of flowers and fruits are also available
only there a founder should build a temple for the sake of
religion and fame. From building a temple one gets benefit
of both ishta and purta.)
1728. The Sanskrit word ^izklkn^ 'Prasad's origin is said as:
izd"kzs.k lnua lknua ok;fLeu~ l% izlkn%
(A building made of stones with mantras and other.)
1729. It was the ancient Indian tradition that ordinary
people's houses had no walls or pillars made of stones, or
puckka bricks. It was said:
f'kykdqM~ ; f'kyk LrEHka ujkoklsu;kst;sr u;kst;sr & ¼dkfedkxe½
1730. Stone-made structures were reserved for worship and
were known as mandir. With the lapse of time this restriction
was given up. There is a separate branch of Temple Architecture
for building temples. The shape of a temple must be like a man.
It is said:
izlkna iq#"ka eRok iwt;sr ea=foRreA
1731. A Book said to have been written by Maharajadhiraj
Bhoj Deo, i.e., "Samrangan Sutradhar" is considered to be
classic book of architecture on temples. The Mareechi Samhita
provides the Code for the construction of a temple:
"The Garbagruha (Sanctum) is so constructed as to
resemble a human body in its vertical form. The entire
structure from the base to the top (called Vasstu Purusha)
is divided into six units, corresponding to six parts to the
1856
human body. Mareechi Samhita classifies the types of
vimanas according to rituals, forms and materials used.
Interestingly, the ritual-classification is based on the
builder's mental attitude, health, success (pushti, shanthi,
jayadam, adbhutam).
There are four types of temple architecture, the
Nagara (North Indian), the Dravida (South Indian), the
Vesara (a combination of both) and Kadamba Nagara
(Pattadakal temples . . . . . Chalukyan style). There is no
difference between Saiva and Vaishnava temples either in
style or plan or form. All temples consist of the following
integral parts, arranged in various forms, depending upon
the era to which they belong to.
The principal part, the actual temple, is called
Vimana and it includes the shrine and the spire. The
mantapas or porches precede the door leading to the inner
shrine. Mahadwara or main gateway is the principal
feature at he entrance to the quadrangular enclosures that
surround the temples."
1732. In "Law of Hindu Religious Endowments" by Ghosh,
he stressed on the origin of temple:
"He has stated that during the Vedic times, offering
were made to various deities by placing them on the fire
which was named Hutaraha or the conveyor of offerings.
The Rig Veda speaks of the fire as carrying the Homa
articles after making them fragrant to the Gods. He has
also pointed out that this type of worship was common
among Semitic races and also in Rome.
This was in the primitive stages of civilization. At
later stages elaborate and complicated divination,
1857
propitiation, sacrifice, prayer and other rites and
ceremonies developed in Hinduism. This was not confined
to Hinduism only. Parallel situations obtained in
Shintoism, Confucianism, Roman, Greek slavic and
German religions also. Different orders of priestly
functionaries to perform different cultic acts came into
existence. Words, formulae and rites had to be
punctiliously pronounced and executed. Rituals in all their
varieties and with all their paraphernalia had to be
meticulously executed. The temple priests had to dedicate
their lives to the service of God by solemn vows. This was
the method of evolution of temple worship.
Out of the rituals for the establishment of
endowments for Hindu temples, two stand out prominently.
They are Pratishta and Sankalpa."
1733. It has also been observed that the temples are also of
two kinds. Ganapathi Iyer in his "Law of Hindu Religious
Endowments" at page 214 said:
"Temples being the chief examples of Hindu religious
endowments, they are of two kinds. Svayambhua
Sthalams are temples in which the idol or deity is said to
have self-revealed, i.e. not established by man. The other is
Pratishta Sthalams, namely, temples in which the deity is
established newly by observing certain set of rules (page
206). The images are of kinds; Lekhya consisting of
pictures, paintings on walls, canvas or vessels and (2)
chiselled figures of wood or stone. Lepya may be of two
kinds (1) moulded figures of clay, (2) metallic figures cast
in moulds (page 210). The place in which temples have to
be built and the directions in which the images are to be
1858
placed are also mentioned in the book."
1734. About the description and kinds of images, B.K.
Mukherjea's Hindu Law of Religious and Charitable Trusts
(supra), page 154 para 4.5 says:
"4.5. Images-their descriptions.- Image, according to
Hindu autho-rities, are of two kinds: the first is known as
Sayambhu or self-existent or self-revealed, while the
other is Pratisthita or established. The Padma Puran
says :"The image of Hari (God) prepared of stone, earth,
wood, metal or the like and established according to the
rites laid down in the Vedas, Smritis and Tantras is called
the established; ..........where the self possessed Vishnu
has placed himself on earth in stone or wood for the
benefit of mankind, that is styled the self-revealed." A
Sayambhu or self-revealed image is a product of nature, it
is Anadi or without any beginning and the worshippers
simply discover its existence. Such image does not require
consecration of Pratistha. All artificial or man-made
images require consecration. An image according to
matsya Purana may properly be made of gold, silver,
copper, iron, brass or bell metal or any kind of gem, stone
or wood, conch shell, crystal or even earth.
Some persons worship images painted on wall or canvas,
says the Brihata Purana and some worship the
spheroidical stones known as Salgram. Generally speaking,
the Pouranic writers classify artificial images under two
heads; viz. (1) Lepya and (2) Lekhya. Lepya images are
moulded figures of metal or clay, while Lekhyas denote all
kinds of pictorial images including chiselled figures of
wood or stone not made by moulds. In the case of Goswami
1859
Geeridhariji v Ramanlalji which went up to the Privy
Council, the subject matter of dispute was the pictorial
image of the head of the Ballavacharya Sect and not of any
deity. Images again may be permanent or temporary.
Temporary images which are set up for periodical Pujas
like Durga, Saraswati, etc. are generally made of clay and
are immersed in a river or tank after the Puja is over."
1735. Worship of idol i.e., the procedure aspect, has been
discussed in para 4.7 (page 156) of B.K. Mukherjea's Hindu
Law of Religious and Charitable Trusts (supra) as under :
"4.7. Worship of the idol.- After a deity is installed, it
should be worshipped daily according to Hindu Sastra.
The person founding a deity becomes morally responsible
for the worship of the deity even if no property is dedicated
to it. This responsibility is always carried out by a pious
Hindu ......... The daily worship of a consecrated image
includes the sweeping of the temple, the process of smear-
ing, the removal of the previous day's offerings of flowers,
the presentation of fresh flowers, the respectful oblation of
rice with sweets and water and other practices. "The deity
in short is conceived of as a living being and is treated in
the same way as the master of the house would be treated
by his humble servant. The daily routine of life is gone
through, with minute accuracy, the vivified image is
regaled with necessaries and luxuries of life in due
succession even to the changing of clothes, the offering of
cooked and uncooked food and the retirement to rest."
(emphasis added)
1736. Existence of idol is not a necessary condition
precedent for a temple. Para 4.10A [page 158] of B.K.
1860
Mukherjea's Hindu Law of Religious and Charitable Trusts
(supra) says:
"While usually an idol is instituted in a temple, it does not
appear to be an essential condition of a temple as such. In
an Andhra case, it was held that to constitute a temple, it
is enough if it is a place of public religious worship and
if the people believe in its religious efficacy, irrespective
of the fact whether there is an idol or a structure or
other paraphernalia. It is enough if the devotees or the
pilgrims feel that there is one superhuman power which
they should worship and invoke its blessings. However, in
almost all cases the temple does possess an
idol."(emphasis added)
1737. We may notice at this stage that in Mulla's Hindu
Law, 15th Edn., page 527, it is said that a temple is not a
juridical person, so no suit relating to the temple property can be
instituted in the name of the temple. It refers to a decision of
Lahore High Court in Thakardwara Sheru Mal Vs. Ishar Das
AIR 1928 Lah. 375 questioning if the temple has no idol in
whom the property shall vest.
1738. We, however, do not find that the above wide
proposition can be said to be a correct law in presenti. A temple
answering the requisites of Hindu religious endowment may be
a juridical person and if that being so not only it can sue or
being sued but it also entitled to hold property. It would be
suffice to mention at this stage that a detailed discussion in the
light of judicial precedents would follow hereafter and,
therefore, we are not straightway giving any authority on this
aspect just now as the matter would be clear from our
subsequent discussion.
1861
1739. The Apex Court in Guruvayur Devasom Managing
Committee Vs. C.K. Rajan (Supra) in para 40 said, "As a
Hindu temple is a juristic person ....". It also refers to Section 92
C.P.C. observing that it seeks to protect such juristic person and
therefore power under Article 226 or 32 could also be taken
recourse to.
1740. In T.R.K. Ramaswami Servai Vs. H.R.E. Madras
(supra), it was observed:
"The presence of an idol though an invariable feature of
Hindu temples is not a legal requisite. If the public or a
section of the public consider that there is Divine presence
in a particular place, they are likely to be recipients of the
bounty or blessings of God, then they are essential features
of a temple."
1741. In Venkataramana Moorthy Vs. Sri Rama
Mandhiram (1964) 2 An.WR 457, it was held that to constitute
a temple, it is enough if it is a place of public religious worship
and the people believe in its religious efficacy, irrespective of
the fact there is no idol or structure or other paraphernalia. The
Madras High Court reiterated the above view in T.V.
Durairajulu Naidu Vs. Commissioner (supra) observing that
for an institution to be a temple, it is not necessary that there
should be Dhwajasthambam, prakaram, hundi or collection of
Kanikkai, utsava idols and utsavams. A place which creates a
sense of reverence in the belief that God resides there or an
edifice devoted to divine worship is a temple. It was also held
that the presence of idol is not a necessary ingredient to make an
institution a temple.
1742. Relying upon several precedents, including a Supreme
Court decision, it has however been held in Adangi Nageswara
1862
Rao Vs. Sri Ankamma Devatha Temple (supra) in para 6: "To
constitute a temple, it is enough if it is a place of public
religious worship and if the people believe in its religious
efficacy irrespective of the fact whether there is an Idol or a
structure or other paraphernalia"; it was further observed in para
8 (last passage) that the fact that the temple has ceased to exist
or ceased to be used as a place of religious worship either before
or after the commencement of the Act under consideration, is
absolutely of no consequence.
1743. Even when an image is broken or lost and is
substituted by another, it is not a new personality but the same
'Deity' and in this regard reference be had to page 162 which
says :
"the Smriti writers have laid down that if an image is
broken or lost another may be substituted in its place;
when so substituted it is not a new personality but the same
deity, and properties vested in the lost or mutilated thakur
become vested in the substituted thakur. Thus, a dedication
to an idol is really a dedication to the deity who is ever-
present and ever-existent, the idol being no more than the
visible image through which the deity is supposed specially
to manifest itself by reason of the ceremony of
consecration."
1744. Then there are temporary images, i.e., the images and
deities prepared and destroyed periodically after worship, for
example, Ganesha's image is prepared during Ganesh Chaturthi
and after the festivities are over, the image is drowned in a holy
river or in places like Maharashtra (Bombay) in the sea.
Similarly, the images of Durga, Kali and other Devatas are also
worshipped as temporary images during certain periods.
1863
1745. A question arose as to whether there can be dedication
of property to such deity, an image whereof has been created
temporarily. The Calcutta High Court in Purnachandra
Chakrabarty Vs. Kaliopada Roy AIR 1942 Cal. 386 and Asita
Mohan Vs. Nivode Mohan AIR 1917 Cal 292 held that bequest
made for worship of a deity by the name of Sarat Kali, which is
the name of Goddess Durga and worshipped only once in a year
and for whom there is no permanent image was valid. In fact a
Full Bench of Calcutta High Court earlier took the view in
Bhupati Nath Vs. Ram Lal (supra) that if a gift in favour of the
deity whose image has to be prepared and destroyed periodically
is valid, there is no reason why a gift in favour of a deity whose
image is to be prepared once for all, except for any reason for
reconstruction coming to pass, should be invalid. According to
Hindu scriptures, the God, by whatever name adored, is ever
existent and whether a particular image did or not did not exist
at a particular time was not material. Temporary images are
normally not consecrated images though Ganapathi Iyer in his
"Hindu Law of Endowment" has said that even in the case of
temporary images, consecration is observed but normally
consecration or Pratishta is done according to the texts only for
images in temples. But that does not make the unconsecrated
temporary images less sacred.
1746. There is another aspect. When there is a defilement,
Punah-pratishthan (re-consecration of images in temples) has to
be observed. The Brahmapurana says that "when a image is
broken into two or is reduced to particles, is burnt, is removed
from its pedestal, is insulted, had ceased to be worshipped, is
touched by beasts like donkeys or falls on impure ground or is
worshipped with mantras of other deities or is rendered impure
1864
by the touch of outcasts and the like-in these then contingencies,
God ceases to dwell therein.
1747. Then comes Chala and Sthira Vigrah. There are two
forms of installation of idols in temples. The movable form is
called Chala and the stationary form is called Sthira. In most of
the consecrated temples, idols are found in both the forms. The
Sthira idol should not be moved while Chala idol which is also
called Utsava is to be taken out in procession etc. In the context
of forms of idols besides the man made images which consist of
pictures, paintings and chiselled figures of wood, stone etc., the
another form of such idols, which is natural, are stones found in
hills, river-beds or streams. One of such black stone is known as
Saaligram and another as Lingam. They are not ordinary stones.
The black Saaligraam stone symbolises Vishnu. Lingam
represents Siva. There is another kind of Lingam, i.e., Spatika
Linga, a white tiny crystal made of pure quartz. It is considered
to be best representation of the Nirguna Brahman, attributeless
all-pervading Paramatma. Then there are Panchamukha Lingas
which are found in Nepal and Jambukeswaram in Tamil Nadu
and Aihole in Western India. These stones etc. are a form of
Chal Vigraha.
1748. In the context of the above, the concept of 'Deity' and
'juristic personality' in Hindu Law has to be considered to find
out whether plaintiffs no.1 and 2 are "juridical persons".
1749. In legal terminology, the term 'person' normally
signifies a human being. It is Human Being's personality which
may possess the characteristics belong particularly to mankind,
i.e., power of thought, speech and choice. In legal terminology,
however, the concept of person or personality is not confined
with the ordinary concept. Law is concerned basically with
1865
rights and duties, both of which involves the notion of choice.
They will naturally, under any system of law, be held to inhere
primarily in those Being which enjoy the ability to choose, i.e.,
Human Beings. In law, the persons, who are not man are also
sometimes treated as person. Well renowned Jurist 'Salmond'
has sought to describe the word 'person' as: "persons are the
substances of which rights and duties are the attributes.
1750. In legal theory a person is any Being whom law
regards as capable of rights or duties. The persons, so defined,
may be placed in two categories; (a) natural person, and (b)
legal person. Obviously a natural person is a human being.
Legal person means Beings, real or imaginary, who for the
purpose of legal reasoning are treated in greater or lessor degree
in the same way as Human Beings. Legal persons commonalty
and loosely are also sometimes termed as fictitious person,
juristic person, artificial person or moral person. In this
category, we may place a joint stock company, a statutory or
local body and in Hindu law, an 'Idol'.
1751. For our purposes, we need not to discuss in detail the
concept of "natural person", but confine ourselves to the term
"legal person". A legal person is any subject-matter other than a
human being to which the law attributes personality. This
extension, for good and sufficient reasons, of the conception of
personality beyond the class of human being is one of the most
noteworthy feat of the legal imagination. The law, in creating
legal persons, always does so by personifying some real thing.
The thing personified may be termed the corpus of the legal
person so created, it is the body into which the law infuses the
animus of a fictitious personality. "Salmond on
Jurisprudence" Twelfth Edition by F.J. Fitzgerald, on page
1866
306, says:
"Although all legal personality involves
personification, the converse is not true. Legal personality
is a definite legal conception; personification, as such, is a
mere artifice of speech devised for compendious
expression."
1752. Serious objection has been raised with the concept of
juristic personality though not in the context of idol but in the
context of place, inasmuch as, it is contended that everything, as
believed by any person, may not be given a legal status in order
to confer certain rights and privileges upon him. It is said that
like a human being it is conceived in Hindu Shastras that a
Deity shall be taken care of in the same manner as that a natural
person, for example arrangement of food, cloth, sleep etc. As a
matter of fact, however it does not actually and cannot actually
happen for the reason that an idol, made of some kind of
substance or material, cannot infuse life for all the said purpose.
It is only the perception and religious belief. Like a natural
person, a Deity cannot claim citizenship under the Constitution
of India, cannot participate in election either by contesting or by
exercising the right of vote and so on.
1753. The above concept obviously is well embedded in the
concept of Hindu Dharma. The form of observance of Dharma
vide Hindu scriptures which also provides the procedure of
worship in the form of Yagya. The Hindu scriptures also contain
the procedure of worship in the form of "Yagya", sacrifices by
chanting Mantras etc. and for the said purpose the existence of
idol or temple may or may not be necessary.
1754. The Apex Court recognised the Hindu belief that
worship consists of four forms of which idol worship is one
1867
such form. In A.S. Narayana Deekshitulu Vs. State of Andhra
Pradesh (supra), the Court observed that mode of worship
varies among persons of different faith. It is an assimilation of
the individual soul with the infinite. For its attainment diverse
views and theories have been propounded and one of them is
idol worship. In fact, the word "Dharma", which is normally
read and misunderstood identifying the word "religion", has a
different concept in Hindu vedic literature. According to
"Chhandogyopanishad":
^^=;ks /keZ LdU/kk;Kt/;;ua nkufefr izFkeLri ,osfr f}rh;ksa
czg~ekpk;kZpk;Z dqyoklh r`rh;ksa R;UrekRekekpk;Zdqyolkn;u~A
loZ ,rs iq.;yksdk HkofUr czg~elaLFkks erRoesfrA**
There are three branches of Dharma 1. Yagna, study
and donation ¼x`gLFk/keZ½ 2. Tapsaya ¼rkil/keZ½ 3. Brihcharitya
(living in the company of Acharya)."
However, according to "Vaisheshik":
^^vFkkrks /keZ O;k[;kLe;ke:A
;rks;qn;fu: Js;: lflf): l/keZ:AA**
(Dharma is that from which enjoyment ¼vkuUn½ and
Nishreyas is achieved.)
The "Manusmriti", defines "Dharma" as under:
^^osn: Le`fr: lnkpkj: LoLFk p fiz;ekReu:A
,rPprqfoZ?ka izkgzq: lk{k)eZL; u{k.ke~AA**
(Shruti, Smriti, Sadachar and satisfaction of one's soul are
the four features of Dharma.)
1755. In A. S. Narayana Deekshitulu (supra), the Apex
Court observed that the basis of Hindu Dharma is two fold, first
is the Vedas and the second are Agamas. Vedas, in turn, consist
of four texts, namely, Samhitas, Brahmanas, Aranyakas and
Upanishads. Samhitas are the collections of mantras. Brahmans
explain the practical aspects of the rituals as well as their
1868
meanings. They explain the application of the mantras and the
deeper meanings of the rituals. Aranyakas go deeper into the
mystic meaning of the rituals, and Upanishads present the
philosophy of Vedas. In paras 95 to 100 of the judgment the
Court said:
"95. The basis of Hindu Dharma is two-fold. The
first is the Vedas and the second are the Agamas. Vedas, in
turn, consist of four texts, namely Samhitas, Bramhanas,
Aranyakas and Upnishads.
96. Samhitas are the collections of mantras,
bramhans explain the practical aspects of the rituals as
well as their meanings. They explain the application of the
mantras and the deeper meanings of the rituals. Aranyakas
go deeper into the mystic meanings of the rituals, and
Upnishads present the philosophy of the Vedas.
97. From the point of view of content, they are
viewed as Karma Kanda (sacrificial portion) and Jnana
Kanda which explain in the philosophical portion. The
major portion of the Vedic literature enunciates the Vedic
sacrifices or the rituals which inevitably culminate in the
philosophy of the Upanishads. That is why the Upanishads
are called Vedantha or culmination of the Vedas.
98. The essence of the Vedic religion lies in Vedic
sacrifices which not only purify the mind and the heart of
those participate in the sacrifices but also reveal the true
and unfragmented nature of the Karman (Action).
Erroneously, Western, scholars explained the Vedic
sacrifice in terms of either sympathetic magic or an act of
offering the fire to God emulating the mundane act of
offering gifts. Thus, for them Vedic religion is a primitive
1869
religion and Vedic Gods are simply representing insentient
departments of Nature; but it is not so. On the contrary, the
term used for Vedic Gods is "Deva" which literally means
"the shining ones." The adorable ones-bestowing grace on
the worshippers. The root Div also means that Devas are
the embodiment of unfragmented consciousness, which is
ultimately one and non dual. Likewise, the Vedic sacrifice
is an act of re-enactment of the cosmic creation; in our
mundane life, our life of action is simply a life of
fragmented acts. This is because of Raga Dvesha whereby
the perception is limited. The fragmented acts emanate
from our deep rooted attraction and hatefulness. The Vedic
sacrifice moves towards "Poorna", i.e., plenitude and thus
overcoming the problems of fragmented action in our lives.
Onwards, the seeker moves towards the knowledge of self
or the Brahaman. So many Upasanas are taught in the
Vedas but not elaborated. The Agams have elaborated
these Upasanas such as Madhu Vidya and Dahra Vidya.
99. Upanishads speak of Para Vidya and Apara
Vidya. Apara Vidya deals with Jnana through various
methods. Agams explain these Para Vidyas. The agamic
texts contain four parts, namely, Vidya Pada, Kriya Pada,
Charya Pada and Yoga Pada.
100. Each text of the Agams has the first portion,
called 'Samhita' which contains the four parts namely the
Vidya Pada, Kriya Pada, Charya Pada and Yoga Pada.
Vidya Pada offers an elaborate enunciation of the
philosophy, whereas Kriya Pada deals elaborately with act
of worship. Worship is viewed as Samurta Archana. In
other words, the God are endowed with from and this form
1870
of worship culminates into Amurta or Nishkala Archana by
which one worships and realises the formless. These are
the steps to be treated upon one after another."
1756. In Acharya Jagadishwarananda Avadhuta Vs.
Commissioner of Police AIR 1990 Cal. 336, the Court observed
that according to Hindu concept, the idea of religion is relating
to God and form of His worship which in short is called as
religion. Swami Vivekananda in "Complete Works", Vol. 2,
page 396 said:
"Religion is realization; not talk, nor doctrine, nor
theories... It is being and becoming, not hearing and
acknowledging; it is the whole soul becoming changed into
what it believes. That is religion."
1757. Religion, therefore, is a process which has two sides;
from one point of view, it is a state of belief and feeling, and in
a word "spiritual disposition"; from another point of view it is
an expression of the subjective disposition in appropriate acts.
Both aspects are essential to the nature of religion and they act
and react on one another in the process of spiritual experience.
The expression of belief and faith forms the worship and for this
purpose it may take several aspects. Idol, deity, temple, religious
endowments etc. are some of those objects through which the
divine presence is felt, experienced, believed and enjoyed for
fulfilment of one's wishes.
1758. God is omnipotent and omniscient. His presence is felt
not by reason of a particular form or image but by reason of the
presence of the omnipotent. He is formless and shapeless.
According to Hindu belief, it is for the benefit of the
worshippers that there is manifestation in the images of the
Supreme Being. It is the human vision of the Lord of the Lords.
1871
One can say that it is the human concept of the Lord of Lords.
That is how a image and idol comes into picture. It may be
anything in the form of metal, like gold, silver, copper, etc. or a
simple piece of wood or stone may or may not be given a shape
by artisan so as to become an image or idol and divinity is
attributed to it.
1759. There are two forms of idols, one "Svayambhu" and
another "Pratishta". "Svayambhu" or self-revealed idol are
referred in Padma Purana (Uttara Khand) where the self
possessed Vishnu has placed himself on earth in stone or wood
for the benefit of mankind, that is styled as self-revealed. A
Svayambhu image does not require consecration. In this
category comes Saaligraam, certain stone forming Lingam,
Earth (places) etc. In respect to the idols, i.e., image formed of
wood, stone, metal etc. A procedure of securing divine spirit in
the image is normally followed as provided in the Hindu
scriptures that is called "consecration".
1760. In Ram Jankijee Deities (supra), the Court observed
that it is customary that the image is first carried to the Snan
Mandap and thereafter the founder utters the Sankalpa mantra
and upon completion thereof the images is given a bath with
holy water, ghee, dahi, honey and rose water. Thereafter, the
oblation to the sacred fire by which the pran pratistha takes
places and eternal spirit is infused in that particular idol and the
image is then taken to the temple itself and the same is
thereafter formally dedicated to the deity.
1761. In Sri Venkataramana Devaru Vs. State of Mysore
(supra), Agamas are described as the ceremonial law dealing
with matters like construction of the temples, installation of
idols and conduct of worship. There are separate Agamas for the
1872
Saiva temples and Vaishanava temples. The important Saiva
Agamas are Kamikagama, Karnagama and Suprabathagama.
The principal Vaishanava Agamas are Vaikanasa and
Pancharathra. The purpose of this ritual came of be noticed by
the Apex Court in Seshammal Vs. State of T.N. AIR 1972 SC
1586. It is said that the rituals have twofold object; one is to
attract the lay worshippers to participate in the worship carried
on by the Priest or Archaka. It is believed when a congregation
of worshippers participate in the worship of a particular attitude,
aspiration and devotion is developed and confers great spiritual
merit. The second object is to preserve the image from
pollution, defilement and desecration. Regarding a dispute
arising as to whether Prana Pratishta of an idol installed in a
temple was properly performed, the Court held that when an
idol is installed, the presumption is that such ceremonies have
properly been performed.
1762. In Deoki Nandan (supra), the Court observed that no
particular kind of ceremony and its performance is necessary to
be shown to constitute or to demonstrate that there is a valid
dedication or Prana Pratishta.
1763. The question of asking of evidence relating to Prana
Pratishta ceremony is relevant only in the context of judging
whether a temple is a public temple or a private temple. An idol
gets conferred the spiritual and divine spirit if the believers or
the worshippers visit for its Darshan, Pooja as a matter of right
believing the existence of such divine presence and nothing
more is required. Senior Sankaracharya of Kanchi Kamakoti
Peeta in "Aspects of our Religion, Bhavan's Book University"
has made observations on the manner and effect of the
consecration as follows:
1873
"Before an idol or image is worshipped, a process of
divinising it is gone through. The image is made instinct
with God. This is known as the process of Prana-pratishta.
Every human being is a compendious expression of the
cosmos. Man is a microcosm of the universe. He is made of
the five physical elements, the pancha bhootas, which are
also the substance of the universe. God in His cosmic form,
inheres in the Pancha boothas, which are crystallised in
the human body and expressed as the five sense organs
each functioning in terms of those elements. Before an idol
or image is worshipped, it has to be consecrated. The
process of consecration is called as stated earlier Prana-
pratishta. The devotee first performs aatma pooja; that is,
he meditates on his inner aatman encased in his body. By
appropriate mantras he first purifies his body including his
pranas and his sense organs. The vital airs and the organs
of perception and activity animating him as the microcosm
of the universe which is the macrocosm are transferred by
gestures to the accompaniment of mantras on to the idol or
the image wherein the manifestation of the Supreme (the
ishta devata) is devoutly invoked. The following prayer is
uttered before the prana pratishta:
svaatmasamsttham ajam suddham tvaamadya
paramesvara aranyaamiva havyaasam moortau
aavaahayaam-yaham
'O Lord of the Worlds, you are unborn and
pure. You are in my heart. I invoke You in this
moorti. Make yourself visible to me in my
concentration even as the agni comes out by friction.'
Thereupon it becomes instinct with divinity and
1874
becomes fit for worship. After this is done the worshipper
does not consider it any longer as a material object. It
becomes God Himself. Then follow the sixteen items of
ritualistic worship which are offered with fervour and
devotion."
1764. "Bhagavadgita" says "whatever may be the form in
which each devotee seeks to worship with faith, I make their faith
steadfast in that form alone."
1765. It is believed by Hindus that worship consists of four
forms of which idol worship is one of such form. Mode of
worship varies amongst persons of different faith. It is an
assimilation of the individual soul with the infinite. For its
attainment diverse views and theories have been propounded
and one of them is idol worship. Hindus believe that the
Supreme Being manifests himself with three aspects as Brahma,
the Creator, Vishnu, the Preserver and Shiva, the Destroyer.
Those who believe and are devoted to the worship of Vishnu are
called "Vaishnavas" and those who worship Shiva are called
"Shaivites". Vaishnavas believe that God manifest himself in
different incarnations. In other words, manifesting himself in the
flesh which is also termed by Hindus as avatara, something
which is expressive, absolute and immaculate. Vaishnavas
believe in Deity 'Vishnu' who has manifested himself in 10
avatars. Further, according to Hindu belief, Vishnu as preserver
exists in five forms, viz., Para, Vyuha, Vibhava, Arca and
Antaryamin. Para is the transcendental form. Vibhav includes
the ten divine descends (avatars) and also thirty nine forms
which he takes from time to time. Arca represents God in the
form of idol, which though formless, takes this finite form to
show favour of His devotees. The form of Antaryamin is to
1875
remain within the self and control it by directing it to lead a
virtuous way of life in accordance with the residues of the deeds
done by it.
1766. The purpose of religious experience is to integrate
human life, socially, materially and morally. Worship is
certainly specifically religious and it is an attitude of mind
which is not compatible with science. Science does not worship.
It enquires, analyses, classifies and does sums. Religion is not
merely worship of God but knowledge of God, for if it does not
know its God then God is a figment of imagination and it
worships it knows not what. All honest religions necessarily
involve a strenuous effort to know the supreme reality and the
knowledge of God must involve all knowledge in its scope. It
can thus be said that religious experience is an internal
experience and the deity in Temple is supposed to provoke the
inner experience. Temple, therefore, forms an integral part of
Hindu religion and idol installed therein forms the main symbol
of religious worship manifesting the dignity of God. The Image
of Lord in a Temple after Pran Pratishtha is a centre of
reference, a symbol of the Great Consciousness whose
attainment is ultimately the pinnacle of religious experiences.
According to Hindu belief, worship of God is of four kinds, viz.,
Japa-chanting of Mantras; Home- giving oblation into fire;
Archana-worship of God in form of idol in temple; and Dhyana-
concentration of God alone. Of these four, Archana gained an
established form of worship in temple.
1767. The concept of conferring legal personality upon a
Hindu idol/Deity has undoubtedly been developed and in fact
established for the first time by the Courts of British India in
19th Century. With the expansion of East India Company
1876
towards ruling this country, it followed the policy of non-
interference with the personal laws of inhabitants and therefore
the subject within the reigning territory of East India Company
was allowed to be governed by their personal laws so long as
the same were not inconsistent with the enacted statutes
governing the East India Company and the subject under its
reigning arena. The British Parliament also followed the same
policy while enacting laws for Indian subcontinent under the
reign of East India Company by laying down that a dispute
between the parties belong to one particular religion may be
decided according to their personal laws. For example where
both the parties are Hindu, by the principles of Hindu Law and
where both the parties are Muslim according to the principles of
Muslim Law. No clear cut or uniform law was existing in a
matter where both the parties belong to different religions and
there the matter was left to be decided according to equity and
good conscience by the concerned Courts. To the extent the
matter was governed by statutory laws there was no problem as
the same was followed over and above the personal laws. It is
this policy which made it necessary for the judicial officers to
learn the personal laws of the inhabitants i.e. Hindu Law and
Muslim Law. No doubt, for better administration and to lay
down their policies which may enable the Britishers to continue
to rule for long, they studied and made several surveys etc.
about the local administration, customs, traditions etc. but due to
the requirement of knowledge of personal laws for deciding the
disputes, it became utmost necessary for the Judges of the
Courts to acquaint themselves with the two kinds of personal
laws of this country. It is in this context we find the foremost
name of Sir William Jones, the founder of Asiatic Society of
1877
Bengal who ventured in translation of several Hindu ancient
scriptures written in Sanskrit, into English. He was a Judge
appointed to the Supreme Court of Fort William, Calcutta and
came to India in the later part of 18th Century. The another well
known name in this regard is F.E.Pargitor who was also a Judge
of Calcutta High Court.
1768. The Britishers knew well and were fond of the system
of Roman Laws. According to them, Roman Law was the most
ancient, well drafted and planned system of law and therefore,
they could not conceive of existence of any earlier ancient
culture with well planned system of law having its own separate
identity and principles. With this frame of mind, they studied
ancient Hindu Law comparing it with Roman Law on each and
every aspect thereof, even if the two were distinct and
dissimilar, wherever possible, they compared it with Christianity
and the rules of Church followed in England. Some such work
was done by Col. Brook, West and Buhler and Sir Henry Maine.
One of such earliest identification of Hindu Religious
Endowment i.e. temple and idols with the corporate bodies as
known in England and the legal personality i.e. juridical persons
was made by West and Buhlor in their work "Hindu Law".
1769. In Vidyapurna Tirtha Swami Vs. Vidyanidhi Tirtha
Swami and others (supra) Honble Justice Subrahmania Ayyar
of Madras High Court said:
"It is to give due effect to such a sentiment,
widespread and deep-rooted as it has always been, with
reference to something not capable of holding property as
a natural person, that the laws of most countries have
sanctioned the creation of a fictitious person in the matter
as is implied in the felicitous observation made in the work
1878
already cited "Perhaps the oldest of all juristic persons is
the God, hero or the saint" (Pollock and Maitland's
History of English Law, Volume 1, 481)."
1770. One of the earlier cases in this regard came before the
Bombay High Court in Manohar Ganesh Tambekar & Ors.
Vs. Lakhmiram Govindram (supra). The question arose about
the title and use of the offerings made at the shrine or the temple
of Shri Ranchhod Raiji at Dakor. The defendants frequently
acted in contravention of the rules, set up a proprietary title to
the offerings made at the shrine, appropriated part of the
offerings to their own use, and refused to render an account of
the property held as trustee for the idol. The suit was filed with
the consent of the Advocate General under Section 539 CPC
(Act X of 1877). The High Court dealt with the relationship of
idol with such trustees and on pages 263-265 held:
"The Hindu law, like the roman law and those derived
from it, recognizes, not only corporate bodies with rights
of property vested in the corporation apart from its
individual members, but also the juridical persons or
subjects called foundations (West and Buhler, H.L.., 201,
185, 553, 555). A Hindu, who wishes to establish a
religious or charitable institution, may, according to his
law, express his purpose and endow it (West and Buhler,
H.L., 99, 197, 216), and the ruler will give effect to the
bounty, or at least protect it so far, at any rate, as it is
consistent with his own dharma or conceptions of morality
(West and Buhler, H.L., 33; Manu VIII, 41 ; Coleb, Dig.,
B.III, Ch. II, T.28). A trust is not required for this purpose:
the necessity of a trust in such a case is indeed a
peculiarity and a modern peculiarity of the English law
1879
(Spence Eq. Juris., 440 ; Sav. Syst., s. 88). In early times a
gift placed, as it was expressed, " on the altar of God"
sufficed to convey to the church the lands thus dedicated
(See Elton's Ten. of Kent, 17, 18). Under the Roman law of
pre-Christian ages such dedications were allowed only to
specified national deities [W. & B., H.L., 185 (b) ; Ulpain
Fr. XXII, s. 6. They were thus placed extra commercium.
Sav. Syst., sec. 88 (c c)]. After Christianity had become the
religion of the empire, dedications to particular churches
or for the foundation of churches and of religious and
charitable institutions were much encouraged (Sav. Syst.,
sec. 88 ; comp. W. & B., 197). The officials of the church
were empowered specially to watch over the administration
of the funds and estates thus dedicated to pious uses (Sav.
Syst., sec.88), but the immediate beneficiary was
conceived as a personified realization of the church
hospital or fund for ransoming prisoners from captivity
(Sav. Syst., sec. 88). Such a practical realism is not
confined to the sphere of law; it is made use of even by
merchants in their accounts, and by furnishing an ideal
centre for an institution to which the necessary human
attributes are ascribed- Dhadphale v. Gurav (I.L.R., 6
Bom., 122)- it makes the application of the ordinary rules
of law easy as in the case of an infant or a lunatic (Sav.
Syst., sec. 90 ; comp. Kinlock v. Secretary of State for India
in Council, L.R., 15 Ch. Div., at p. 8). Property dedicated
to a pious purpose is, by the Hindu as by the Roman law,
placed extra commercium, (W & B., H.L., 185, 197) with
similar practical savings as to sales of superfluous articles
for the payment of debts and plainly necessary purposes
1880
(See Cod. Lib. I, Tit. 2, Fr. 21 ; W. & B., H.L., 555, 557.
See also Rupa Jagset v. Krishnaji Govind, I.L.R., 9
Bom., p. 169). Mr. Macpherson admitted for the
defendants in this case that they could not sell the lands
bestowed on the idol Shri Ranchhod Raiji. This
restriction is like the one by which the Emperor forbade the
alienation of dedicated lands under any circumstances
(Vyav. May., Chap. IV, S. VII, p.23 ; Nov. 120, cap., 10). It
is consistent with the grants having been made to the
juridical person symbolized or personified in the idol at
Dakor. It is not consistent with this juridical person's being
conceived as a mere slave or property of the shevaks whose
very title implied not ownership, but service of the god. It is
indeed a strange, if not wilful, confusion of thought by
which the defendants set up the Shri Ranchhod Raiji as a
deity for the purpose of inviting gifts and vouchsafing
blessings, but, as a mere block of stone, their property for
the purpose of their appropriating every gift laid at its feet.
But if there is a juridical person, the ideal embodiment of a
pious or benevolent idea as the centre of the foundation,
this artificial subject of rights is as capable of taking
offerings of cash and jewels as of land. Those who take
physical possession of the one as of the other kind of
property incur thereby a responsibility for its due
application to the purposes of the foundation-compare
Griffin v. Griffin (1 Such. & Lef., 352); Mulhallen v.
Marum (3 Dr. & War., 317) ; Aberdeen Town Council v.
Aberdeen University (L.R., 2 Ap. Cas., 544). They are
answerable as trustees even though they have not
consciously accepted a trust, and a remedy may be sought
1881
against them for mal-administration (comp. Ind. Trusts Act
II of 1882, ss. 88, 95) by a suit open to any one interested,
as under the Roman system in a like case by means of a
popularis actio." (emphasis added)
1771. In Jogendra Nath Naskar (supra) the Apex Court
referred to both the aforesaid judgements of Bombay and
Madras High Court and also observed in para 6 that same view
has been expressed by the judicial committee in Maharanee
Shibessoureea Debia Vs. Mathooranath Acharjo, 13 MIA 270
and Prosanna Kumari Debya Vs. Golab Chand Baboo, LR 2
IA 145.
1772. In Prosanna Kumari Debya (supra) the judicial
committee observed:
"It is only in an ideal sense that property can be said to
belong to an idol and the possession and management must
in the nature of things be entrusted with some person as
shebait or manager. It would seem to follow that the person
so entrusted must of necessity be empowered to do
whatever may be required for the service of the idol and for
the benefit and preservation of its property at least to as
great a degree as the manager of an infant heir"-words
which seem to be almost on echo of what was said in
relation to a church in a judgment of the days of Edward I:
"A church is always under age and is to be treated as an
infant and it is not according to law that infants should be
disinherited by the negligence of their guardians or be
barred of an action in case they would complain of things
wrongfully done by their guardians while they are under
age' (Pollock and Maitland's 'History of English Law',
Volume 1, 483".
1882
1773. In Khetter Chunder Ghose Vs. Hari Das
Bundopadhya (supra) it was found that the household idol was
made over to relatives, owing to the family, whose idol it was,
being unable to carry on the worship on account of the paucity of
profits of the endowed lands, and it was held that the transfer
was justified in the interests of the idol. It was a proper and a
pious act. The Shebait being charged fundamentally with the duty
of seeing to the worship being carried on, and, having the
concurrence of the entire family to the transaction, did have
power to carry through the transaction "for the purpose of
performing its worship regularly through generation to
generation. The members of the family were thereby deprived of
no right of worship. The interests of worshippers and idol were
conserved. Their Lordships do not think that such cases form
any ground for the proposition that Hindu family idols are
property in the crude sense maintained, or that their
destruction, degradation or injury are within the power of
their custodian for the time being. Such ideas appear to be in
violation of the sanctity attached to the idol, whose legal entity
and rights as such the law of India has long recognised."
(emphasis added)
1774. In Khetter Chunder Ghose (supra) the Court also
held that sale of an idol is prohibited in Hindu Law though in
certain circumstances, gift of an idol is not prohibited. The
Court on page 559 observed as under:
"It is true that the Hindu law prohibits the sale of an idol
(see the Padma Purana, Patalakhanda, Chapter 79), and
also the partition of it (see Dayabhaga, Chapter VI, s. II,
26), though when there are several idols, partition is
recognised by custom (see West and Buhler's Digest of
1883
Hindu Law, 2nd edition, page 396). But there is no
absolute prohibition against the gift of an idol. An idol is
not mentioned as an unfit subject of gift by Hindu lawyers
in their enumeration of what are, and what are not, fit
subjects of gift (see Colebrooke's Digest, Book II, Chapter
IV); but on the contrary the gift of an idol under certain
circumstances is considered a laudable act (see the Varaha
Purana, Chapter 185; see also Hemadris, Chaturvarga
Chintamani, Danakhanda, Chapter II).
1775. In Avadh Kishore Dass v. Ram Gopal (supra),
Plaintiffs instituted a suit for replacement of the Mahants of a
temple. The suit was contested by the then Mahants on the
ground that the suit property was the personal property of the
Mahants, and not that of the temple. The suit was decreed by the
District Judge, and his decree was substantially affirmed by
High Court. Supreme Court accepted the findings, on the basis
of certain exhibits, that the suit property belong to the temple as
a juristic person:
"Properly constructed, this Wajibularz shows that
the entire revenue estate of village Bhawalpura vests in the
Temple or the Math as a juristic person."; and "that the
entire property in suit is the absolute property of the
God, Thakurji as a juristic person"; and the result "No
extract from the revenue records to show that Bhumidhari
rights were granted not to the idol or the Temple as a
juristic person, but to the appellant personally."
1776. The right of a Shebait to institute a suit in his own
name to recover property belonging to the deity was recognised
in Jagadindra Nath Vs. Hemanta Kumari, 31 Ind App 203 at
p.210.
1884
1777. In Bhupati Nath Smrititir the Bhattacharjee (supra)
in concurring judgment of Full Bench, Justice Mookerjee
observed that "The Hindu Law recognises dedications for the
establishment of the image of a deity and for the maintenance
and worship thereof. The property so dedicated to a pious
purpose is placed extra commercium ...............It is immaterial
that the image of the deity has not been established before the
death of the testator or is periodically set up and destroyed in the
course of the year."
1778. Justice Chatterjee also in the concurring judgment
(above) observed: "Shastri's Hindu Law page 420 : shews the
Hindu idea of the forms attributed to God for the convenience of
worship : a particular image may be insentient until
consecrated but the deity is not. If the image is broken or lost,
another may be substituted in its place and when so substituted it
is not a new personality but the same deity and properties
previously vested in the lost or mutilated Thacoor become vested
in the substituted Thacoor. A Hindu does not worship the
"idol" or the material body made of clay or gold or other
substance, as a mere glance at the mantras and prayers will
show. They will have the eternal spirit of the deity or certain
attributes of the same in a suggestive form which is used for
the convenience of contemplation as a mere symbol or
emblem. It is the incantation of the mantras peculiar to a
particular deity that causes the manifestation or presence of the
deity or, according to some, the gratification of the deity."
(emphasis added)
1779. However, we find from the judgment of Hon'ble
Jenkins, C.J. in Bhupati Nath (supra) that he noticed a slightly
different view based on Saraswati's Hindu Law of Endowment
1885
on page 647 of the report but His Lordship declined to make any
final comment thereon. The report says :
" In favour of this view we have the doctrine of Medhatithi
cited to us in the course of the argument that the primary
meaning of property and ownership is not applicable to
God, and the train of reasoning that is suggested by the
teaching of the Aditya Purana that the gods cease to reside
in images which are multilated, broken, burnt and so forth
(Sarswati's Hindu Law of Endowment, page 129).
But whatever may be the true view on this obscure
and complex question, this at least seems clear that the rule
which requires relinquishment should be to a sentient
person does not forbid the gift of property to trustees for a
religious purpose though that purpose cannot in strictness
be called a sentient person."
1780. The real question considered by the Full Bench in
Bhupati Nath (supra) and decided unanimously was as under:
"The principle of Hindu Law, which invalidates a gift other
than to a sentient being capable of accepting it, does not
apply to a bequest to trustees for the establishment of an
image and the worship of a Hindu deity after the testator's
death, and does not make such a bequest void"
1781. In Rambrahma Chatterjee Vs. Kedar Nath Banerjee
AIR 1923 Cal 60 it was observed that a Hindu deity is treated in
many respects certainly individual.
1782. In Ananda Chandra Chakrabarti vs. Broja Lal
Singha and others 1923 Calcutta 142 it was held:
" It is well-settled that dedication vests the property in the
idol, only when the founder has title. The ceremony
divests the proprietorship of the temple from the builder
1886
and vests it in the image, which by process of vivification
has acquired existence as a juridical personage."
1783. Observing that Hindu deity is a living being and is
treated in the same way in Rambrahama Chatterji Vs. Kedar
Nath Banerji (supra) the Court said:
"We need not describe here in detail the normal type of
continued worship of a consecrated image--the sweeping
of the temple, the process of smearing, the removal of the
previous day's offering of flowers, the presentation of fresh
flowers the respectful oblation of rice with flowers and
water, and other like practices. It is sufficient to state that
the deity is, in short, conceived as a living being and is
treated in the same way as the master of the house would
be treated by his humble servant. The daily routine of like
is gone through with minute accuracy: the vivified image is
regaled with the necessaries and luxuries of life in due
succession even to the changing of clothes, the offering of
cooked and uncooked food, and the retirement to rest."
1784. In Pramath Nath Vs. Pradyumna Kumar (supra) the
above observation of Hon'ble Mukherji J in Rambrahma
Chatterjee (supra) were approvingly quoted.
1785. In Tarit Bhusan Vs. Sri Iswar Sridhar Salagram
Shila Thakur AIR 1942 Cal 99 a Division Bench of Calcutta
High Court said that a Hindu idol although a juristic person but
this juristic person is of a peculiar type. It is conceived by
Hindus as a living being with its own interests apart from the
interests of its worshippers, and it is recognised as a juristic
person capable of being the subject of legal rights and duties but
only in an ideal sense. Pal J. at page 532 observed:
"Though an idol is thus recognised as a juristic person
1887
capable of suing and being sued, strictly speaking it has no
material interest of its own. The efficient subject of the
rights ascribed to an Idol must ultimately be some human
beings. It must be they who enjoy such rights and, if law
protects such rights, it is because of the existence of such
ultimate human concern. The Idol, as the juridical person
only affords the technical means of developing the juristic
relations between those ultimately interested in the
endowed property and the strangers. The so-called
interest of the Idol is merely an ideal interest very
different from the interest which an infant has in his
property. The introduction of the Idol and its recognition
as a juristic person are more a matter for the procedure
and the procedure in India recognises the Idol as having
a locus standi in judicio."
1786. In Parmanand Vs. Nihal Chand AIR 1938 PC 195 it
was held that where a property 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. This decision has been followed by the Apex Court in
The Bihar State Board of Religious Trust Vs. Mahanth Sri
Biseshwar Das AIR 1971 SC 2057.
1787. In Mahant Ram Saroop Dasji Vs. S.P. Sahi (supra),
the effect of damage to the idol was considered and in para 10 of
the judgment, the Court observed:
"Further, it is difficult to visualise that a Hindu private
debutter will fail, for a deity is immortal. Even if the idol
gets broken or is lost or stolen, another image may be
consecrated and it cannot be said that the original object
1888
has ceased to exist." (Para 10)
1788. In Narayan Bhagwantrao Gosavi Balajiwale (supra)
regarding the removal of the idol from one place to another, the
Court held:
"The case is an authority for the proposition that the idol
cannot be removed permanently to another place,
because that would be tantamount to establishing a new
temple. However, if the public agreed to a temporary
removal, it could be done for a valid reason." (para 36)
1789. Holding Hindu idol as juristic entity the Apex Court in
Jogendra Nath Naskar (supra) in para 5 the Court said:
"5. It is well established by high authorities that a
Hindu idol is a juristic person in whom the dedicated
property vests."
1790. In the context of above authorities the Apex Court in
Jogendra Nath Naskar (supra) explained that any Hindu idol
has a legal personality and is not the material image but it is like
to be treated as a "natural person" and said:
"Such ascription of legal personality to an idol must
however be incomplete unless it be linked to a natural
person with reference to the preservation and management
of the property and the provision of human guardians for
them variously designated in different parts of the
country." (para 6)
"It should however be remembered that the juristic
person in the idol is not the material image, and it is an
exploded theory that the image itself develops into a legal
person as soon as it is consecrated and vivified by the Pran
Pratishta ceremony. It is not also correct that the supreme
being of which the idol is A symbol or image is the
1889
recipient and owner of the dedicated property. This is
clearly laid down in authoritative Sanskrit Texts. Thus, in
his Bhashya on the Purva Mimamsa, Adhyaya 9, Pada 1,
Sabara Swami states :
^^nsoxzkeksa] nso{ks=fefr] mipkjek=e~ A ;ks ;nfHkizsra fofu;ksDreZgfr]rRrL;
Loe~ A u p xzkea {ks=a ok ;FkkfHkizk;a fofu;qDrMsA rLekUu laizPnkrhfrA
nsoifjpkj dk.kka rq rrks HkwfrHkZofr] norkeqfn~n'i ;r~ R;Dre~ A^^
"Words such as 'Village of the Gods', 'land of the
Gods' are used in a figurative sense. That is property
which can be said to belong to a person, which he can
make use of as he desires. God however, does not make use
of the, village or lands, according to its desires". Likewise,
Medhathithi in commenting on the expression 'Devaswam'
in Manu, Chapter XI, Verse 26, writes:
^^nsokuqfN';] ;kxkfn fdz;kFkZ /kua ;nqRl`"Va] rNsoLoe~ eq[;L;
LoLokfelcaU/kL;] nsokuk vlaHkokr~ A^^
"Property of the Gods, Devaswam, means whatever
is abandoned for Gods, for purposes of sacrifice and the
like, because ownership in the primary sense, as showing
the relationship between the owner and the property
owned, is impossible of application, to Gods". Thus,
according to the texts, the Gods have no beneficial
enjoyment of the properties, and they can be described as
their owners only in a figurative sense (Gaunartha). The
correct legal position is that the idol as representing and
embodying the spiritual purpose of the donor is the
juristic person recognised by law and in this juristic
person the dedicated property vests. As observed by Mr.
Justice B. K. Mukherjea:
"With regard to Debutter, the position seems to
be somewhat different. What is personified here, is
1890
not the entire property which is dedicated to the deity
but the deity itself which is the central part of the
foundation and stands as the material symbol and
embodiment of the pious purpose which the dedicator
has in view. "The dedication to deity", said Sir
Lawrence Jenkins in Bhupati v. Ramlal, 10 CLJ 355
at 369, "is nothing but a compendious expression of
the pious purpose for which the dedication is
designed". It is not only a compendious expression
but a material embodiment of the pious purpose and
though there is difficulty in holding that property can
reside in the aim or purpose itself, it would be quite
consistent with sound principles of Jurisprudence to
say that a material object which represents or
symbolises a particular purpose can be given the
status of a legal person, and regarded as owner of
the property which is dedicated to it."
The legal position is comparable in many respects to
the, development in Roman Law. So far as charitable
endowment is concerned Roman Law-as later developed
recognised two kinds of juristic persons. One was a
corporation or aggregate of persons which owed its juristic
personality to State sanction. A private person might make
over property by way of gift or legacy to a corporation
already in existence and might at the same time prescribe
the particular purpose for which the property was to be
employed e.g. feeding the poor, or giving relief to the poor
distressed. The recipient corporation would be in a
position of a trustee and would be legally bound to spend
the funds for the particular purpose. The other alternative
1891
was for the donor to create an institution or foundation
himself. This would be a new juristic person which
depended for its origin upon nothing else but the will of the
founder, provided it was directed to a charitable purpose.
The foundation would be the owner of the dedicated
property in the eye of law and the administrators would be
in the position of trustees bound to carry out the object of
the foundation. As observed by Sohm:
"During the later Empire--from the fifth
century onwards-foundations created by private
individuals came to be recognised as foundations in
the true legal sense, but only if they took the form of
a ipia cause' ('piumcorpus') i.e. were devoted to
'pious uses', only in short, if they were charitable
institutions. Wherever a person dedicated property-
whether by gift inter vivos or by will--in favour of the
poor, or the sick, or prisoners, orphans, or aged
people, he thereby created ipso facto a new subject of
legal rights-the poor-house, the hospital, and so
forth-and the dedicated property became the sole
property of this new subject; it became the sole
property of the new juristic person whom the founder
had called into being. Roman law, however, took the
view that the endowments of charitable foundations
were a species of Church property. Piae causas were
subjected to the control of the Church, that is, of the
bishop or the ecclesiastical administrator, as the
case might be. A pia causa was regarded as an
ecclesiastical, and consequently, as a public
institution, and as such it shared that corporate
1892
capacity which belonged to all ecclesiastical
institutions by virtue of a general rule of law. A pia
causa did not require to have a juristic personality
expressly conferred upon it. According to Roman law
the act-whether a gift inter vivos or a testamentary
disposition-whereby the founder dedicated property
to charitable uses was sufficient, without more, to
constitute the pia cause a foundation in the legal
sense, to make it, in other words, a new subject of
legal rights".
We should, in this context, make a distinction
between the spiritual and the legal aspect of the Hindu
idol which is installed and worshipped. From the spiritual
standpoint the idol may be to the worshipper a symbol
(pratika) of the Supreme God-head intended to invoke a
sense of the vast and intimate reality, and suggesting the
essential truth of the Real that is beyond all name or form.
It is basic postulate of Hindu religion that different images
do not represent different divinities, they are really symbols
of One Supreme Spirit and in whichever name or form the
deity is invoked, the Hindu worshipper purports to worship
the Supreme Spirit and nothing else.
^^bUnz fe=a c#.ke~ vfXue~ vkgj~&
,da ln~ foizk ogq/kk onfUrA ^^ (Rig Veda I-164)
(They have spoken of Him as Agni, Mitra, Varuna,
Indra; the one Existence the sages speak of in many ways).
The Bhagavad Gita echoes this verse when it says:
^^ok;qj ;eksv fXcj o#.k% 'k'kkad
iztkifrl~ Roa izfirkeg'pA^^ (Chap. XI-39)
(Thou art Vayu and Yama, Agni, Varuna and Moon;
1893
Lord of creation art Thou, and Grandsire).
Samkara, the great philosopher, refers to the one
Reality, who, owing to the diversity or intellects
(matibheda) is conventionally spoken of (parikalpya) in
various ways as Brahma, Visnu and Mahesvara. It is
however possible that the founder of the endowment or the
worshipper may not conceive on this highest spiritual plane
but hold that the idol is the very embodiment of a personal
God, but that is not a matter with which the law is
concerned. Neither God nor any supernatural being could
be a person in law. But so far as the deity stands as the
representative and symbol of the particular purpose which
is indicated by the donor, it can figure as a legal person.
The true legal view is that in that capacity alone the
dedicated property vests in it." (pages 558-560)
1791. It is thus well established by high authorities that a
Hindu idol is a "juristic person" in whom the dedicated property
vests. In Manohar Ganesh vs. Lakshmiram (supra) called the
Dakor temple case. West and Birdwood, JJ., state:
"The Hindu Law, like the Roman Law and those derived
from it, recognises not only incorporate bodies with rights
of property vested in the corporation part form its
individuals members but also juridical persons called
foundations. A Hindu who wishes to establish a religious or
charitable institution may according to his law express his
purpose and endow it and the ruler will give effect to the
bounty or at least, protect it so far at any rate as is
consistent with his own Dharma or conception of morality.
A trust is not required for the purpose; the necessity of a
trust in such a case is indeed a peculiarity and a modern
1894
peculiarity of the English Law. In early law a gift placed as
it was expressed on the alter of God, sufficed it to convey to
the Church the lands thus dedicated. It is consistent with
the grants having been made to the juridical person
symbolised or personified in the idol". The same view has
been expressed by the Madras High Court in Vidyapurna
Tirtha Swami Vs. Vidyanidhi Tirtha Swami, (1904) ILR 27
Mad 435, in which Mr. Justice Subramania Ayyar stated.
"It is to give due effect to such a sentiment,
widespread and deep-rooted as it has always been
with reference to something not capable of holding
property as a natural person, that the laws of most
countries have sanctioned the creation of a fictitious
person in the matter, as is implied in the felicitous
observation made in the work already cited "Perhaps
the oldest of all juristic persons is the God, hero or
the saint" (Pollock and Maitland's History of English
Law, Volume I, p.481.)
That the consecrated idol in a Hindu temple is a juridical
person has been expressly laid down in Manohar Ganesh's
case (supra), Which Mr. Prannath Saraswati, the author of
the Tagore Lectures on Endowments" rightly enough
speaks of as one ranking as the leading case on the subject,
and in which West J., discusses the whole matter with much
erudition. And in more than one case, the decision of the
Judicial Committee proceeds on precisely the same footing
(Maharancee Shibessouree Debia vs. Mothooranath
Acharjo, (1869-70) 13 Moo Ind App 270 (PC), and
Prosunno Kumari Debya vs. Golab Chand Baboo, (1874-
75) 2 Ind App 145 (PC). Such ascription of legal
1895
personality to an idol must however be incomplete unless it
be liked to a natural person with references to the
preservation and management of the property and the
provision of human guardians for them variously
designated in different parts of the country. In (1874-75)
Ind App 145 (PC) the judicial Committee observed thus: "It
is only in an ideal sense that property can e said to belong
to an idol and the possession and management must in the
nature of things be entrusted with some person as shebait
or manger. It would seem to follow that the person so
entrusted must of necessity be empowered to do whatever
may be require for the service of the idol and for the benefit
and preservation of its property at least to as great a
degree as the manager of an infant heir" - words which
seem to be almost on echo of what was said in relation to a
church in a judgment of the days of Edward I: "A church
is always under age and is to be treated as an infant and
it is not according to law that infants should be
disinherited by the negligence of their guardians or be
barred of an action in case they would complain of
things wrongfully done by their guardians while they are
under age" (Pollock and Maitlands's 'History of English
Law'. Volume I, p. 463)".
1792. It should however be remembered that the juristic
person in the idol is not the material image, and it is an exploded
theory that the image itself develops into a legal person as soon
as it is consecrated and vivified by the Pran Pratishta ceremony.
It is not also correct that the supreme being of which the idol is
a symbol or image is the recipient and owner of the dedicated
property. This is clearly laid down in authoritative Sanskrit
1896
Texts. Thus, in his Bhashya on the Purva Mimamasa, Adhyaya
9, para 1, Sabara Swami states:
nS o xz k ek s] nS o {kS = fefr] mipkjfe=e~ ] ;k s inefHkiz S r e~
fou;k sD regfr] r=L; Loe~ A
u p xz k ee~ {k=e~ ok ;FkkfHkiz k ;e~ fofu;q D r nS o rk] rLekUu
lEiz ; PNrk sf rA
nso ifjpkjdk.kke~ rq rrk s HkfrHkZ o fr] nso rkeq f /k'p ;r~
R;Dre~ A
"Words such as 'village of the Gods,' 'land of the Gods' are
used in a figurative sense. That is property which can be
said to belong to a person, which he can make use of as he
desires. God however does not make use of the village of
lands, according to its desires".
1793. The legal position is comparable in many respects to
the development in Roman Law. So far as charitable
endowment is concerned, Roman Law, as later developed
recognised two kinds of juristic persons. Once was a corporation
or aggregate of persons which owed its juristic personality to
State sanction. A private person might make over property by
way of gift or legacy to a corporation already in existence and
might at the same time prescribe the particular purpose for
which the property was to be employed e.g. feeding the poor, or
giving relief to the poor or distressed/. The recipient corporation
would be in a position of a trustee and would be legally bound
to spend the funds for the particular purpose. The other
alternative was for the donor to create an institution or
foundation himself. This would be a new juristic person which
depended for its origin upon nothing else but the will of the
founder provided it was directed to a charitable purpose. The
foundation would be the owner of the dedicated property in the
eye of law and the administrators would be in the position of
1897
trustees bound to carry out the object of the foundation. As
observed by Sohm:
"During the later Empire - from the fifth centre onwards -
foundations created by private individuals came to be
recognised as foundations in the true legal sense, but only
if they took the form of a 'pia causa' ('Pium corpus') i.e.,
were devoted to 'pious uses', only in short, if they were
charitable institutions. Wherever a person dedicated
property - whether by gift inter vivos or by will - in favour
of the poor, or the sick, or prisoners, orphans, or aged the
dedicated property became the sole property of this new
subject: it became the sole property of the new juristic
person whom the founder had called into being. Roman
law, however, took the view that the endowments of
charitable foundations were a species of Church property,
Piae causac were subjected to the control of the Church,
that is, of the bishop or the ecclesiastical administrator, as
the case might be. A poa causa was regarded as an
ecclesiastical, and consequently, as a public institution,
and as such it shared that corporate capacity which
belonged to all ecclesiastical institutions by virtue of a
general rule of law. A pia causa did not require to have a
juristic personality expressly conferred upon it. According
to Roman law the act - whether a gift inter vivos or a
testamentary disposition - Whereby the founder dedicated
property to charitable uses was sufficient, without more to
constitute the pia causa a foundation in the legal sense, to
make it, in other words, a new subject of legal rights"
1794. We should in this context, make a distinction between
the spiritual and the legal aspect of the Hindu idol which is
1898
installed and worshipped. From the spiritual stand point the idol
may be to the worshipper a symbol (Pratika) of the Supreme
God-head intended to invoke a sense of the vast and intimate
reality and suggesting the essential truth of the Reaj that is
beyond all name of form, It is a basic postulate of Hindu
religion that different images do not represent different
divinities, they are really symbols of One Supreme Spirit and in
which ever name or from the deity is invoked, the Hindu
worshipper purports to worship the Supreme Spirit and nothing
else.
(Rig Veda I. 164)
They have spoken of Him as Agni, Mitra, Varuna,
Indra, the one Existence the sages speak of in many
ways). The Bhagavad Gita echoes this verse when it says:
(Thou art Vayu and Yama, Agni, Varuna and Moon:
Lord of Creation art Thou, and Grandsire). Sankara
- the great philosopher - refers to the one Reality,
who, owing to the diversity of intellects
(Matibheda) is conventionally spoken of
(Parikalpya) in various ways as Brahman, Visnu
and Mahesvara. It is however possible that the
founder of the endowment or the worshipper may not
conceive on this highest spiritual plane but hold that
the idol is the very embodiment of a personal God,
but that is not a matter with which the law is
concerned. Neither God nor any supernatural
being could be a person in law. But so far as the
deity stands as the representative and symbols of
the particular purpose which is indicated by the
donor, it can figure as a legal person. The true
1899
legal view is that in that capacity alone the dedicated
property vets in it. There is no principle why a deity
as such a legal person should not be taxed if such a
legal person is allowed in law to own property even
though in the ideal sense and to sue for the property,
to realise rent and to defend such property in a Court
of law again in the ideal sense... Our conclusion is
that the Hindu idol is a juristic entity.. capacity of
holding property and of being taxed through its
shebaits who are constructed with the possession and
management of its property.
1795. In Kalanka Devi Sansthan (supra) reiterating that a
Hindu idol is a juristic person, with respect to the vesting of
property, it held:
"The distinction between a manager or a Shebait of an idol
and a trustee where a trust has been created is well
recognised. The properties of the trust in law vest in the
trustee whereas in the case of an idol or a Sansthan they
do not vest in the manager or the Shebait. It is the deity
or the Sansthan which owns and holds the properties. It
is only the possession and the management which vest in
the manager" (Para 5)
1796. When property is given absolutely for the worship of
an idol it vests in the idol itself as a juristic person. However,
the idol cannot take advantage of the provision contained in the
Act by which possession can be claimed from the tenant on the
ground that it is required for personal cultivation. The
position of idol is not the same as minor and the idol does not
fall within Explanation 1 to S.2 (12).
1797. Physical or mental disability as defined by Section 2
1900
(22) lays emphasis on the words "personal labour of
supervision". The dominating idea of anything done personally
or person is that the thing must be done by the person himself
and not by or through some one else. It is true that the idol is
capable of holding property in the same way as a natural person.
It has a juridical status with the power of suing and being sued.
Its interests are attended to by the person who has the deity in
his charge and who is in law its manager with all the powers
which would. In such circumstances, on analogy, be given to the
manager of the estate of an infant heir. But the requirement of
personal supervision under the third category of personal
cultivation provided for in the definition under S. 2 (12) does
not admit of an intermediary between the landlord and the
laborers, who can act as agent of landlord, it cannot be said that
it is possible in the case of another landlord merely because the
landlord in the latter case is a juristic person. The cultivation of
the land concerned must be by natural persons and not by legal
persons. The provisions of the Berar Regulation of Agricultural
Leases Act ( C.P. Act 2 of 1951) which is already repealed, are
of no help in deciding whether idol can cultivate personally
within meaning of Explanation 1 to Section 2 (12) of the
Bombay Act.
1798. In Official Trustee of West Bengal Vs. Commissioner
of Income-tax (supra) the Hon'ble Apex Court referring
number of decisions reached to a conclusion that "a Hindu Deity
is a juristic person is a well-established proposition and has been
so for a long time."
1799. In Smt. Panna Banerjee and Ors. Vs. Kali Kinkor
Ganguli (supra) the Court held against sale of deity and paras
65 and 66 held:
1901
"65. Moreover the alleged custom, if any, as to the sale of
these deities is wholly void. An idol can never be the
subject matter of commerce. The sale of an idol is
prohibited by Hindu Law, (See Khettar Chunder Ghose v.
Haridas Bundopadhyay, (1890) I.L.R.17 Cal. 557 at p.
559). A deity is not a chattel but a juridical person. No
custom can ever validate a sale of any deity. The legal
necessity of the deity cannot destroy the very existence of
the deity by selling it in the open market. The very thought
of it is opposed to the fundamental concept of the Hindu
Jurisprudence. It is against public policy. It is wholly
unreasonable. It is absolutely repugnant to the Hindu Law.
It is so repulsive to the judicial mind that every Court is
bound to strike it down in limine.
66. No one has ever heard that a deity can be served or
be sold by bits and bits. The deity is indivisible. It is the
supreme Being. The deity is not a property and no one
can be its owner not even its founder. The shebaits are
the managers of the deities though in reality they are its
glorified servants. No shebait can ever be the owner of
any deity. He is the custodian of the idol but this custody
does not nor can it ever confer any right on him to sell the
deity." (emphasis added)
1800. The Calcutta judgment went in appeal to the Apex
Court. Affirming the judgment of the High Court, in Kali
Kinkor Ganguly Vs. Panna Banerjee (supra), the Apex Court
in paras 24 and 25 said:
"24. Dr. B.K. Mukherjea in his Tagore Law Lectures has
pointed out that the decision in Prasanna Kumari's case
(supra) was that the rule of necessity extended only to an
1902
alienation of the temporality of the idol and it does not and
cannot apply to alienation to the spiritual rights and duties.
Dr. Mukherjea illustrated this with reference to the
decision in Nagendra Nath v. Rabindra I.L.R. 53 Cal.
132=(AIR 1926 Cal 490) and an earlier decision in
Rajeswar v. Gopeswar (supra). The doctrine of alienation
of shebaitship on the ground of necessity or benefit to the
deity is said by Dr. Mukherjea to be of doubtful authority
and based upon a misconception of certain
pronouncements of the Judicial Committee.
25. In the present case, the appellant cannot invoke the
doctrine of transfer of shebaiti right for the benefit of the
deity because the transfer by Pramila Debi to Upendra
Nath Ganguli is illegal for the principal reason that
neither the temple nor the deities nor the shebaiti right
can be transferred by sale for pecuniary consideration.
The transfer by sale is void in its inception." (emphasis
added)
The Apex Court, however, expressed its disagreement
with the reasons contained in the concurring judgment of the
High Court.
1801. In Ram Jankijee Deities Vs. State of Bihar (supra)
the concept of "idol" or "deity" in Hindu Law was considered
and in paras 11, 13 and 14 the Court observed :
"11. "Hindu Law recognizes Hindu idol as a juridical
subject being capable in law of holding property by reason
of the Hindu Shastras following the status of a legal person
in the same way as that of a natural person. It is not a
particular image which is a juridical person but it is a
particular bent of mind which consecrate the image. How
1903
one sees the Deity : how one feels the deity and recognizes
the deity and then establishes the same in the temple upon
however performance of the consecration ceremony..."
13. Divergent are the views on the theme of images or
idols in Hindu Law. One school propagates God having
Swayambhu images or consecrated images: the other
school lays down God as omnipotent and omniscient and
the people only worship the eternal spirit of the deity and it
is only the manifestation or the presence of the deity by
reason of the charm of the mantras.
14. Images according to Hindu authorities, are of two
kinds: the first is known as Swayambhu or self-existent or
self-revealed, while the other is Pratisthita or established.
The Padma Purana says: "the image of Hari (God)
prepared of stone earth, wood, metal or the like and
established according to the rites laid down in the Vedas,
Smritis and Tantras is called the established
images.....where the self- possessed Vishnu has placed
himself on earth in stone or wood for the benefit of
mankind, that is styled the self-revealed." (B.K. Mukherjea
- Hindu Law of Religious and Charitable Trusts: 5th Edn.)
A Swayambhu or self-revealed image is a product of nature
and it is Anadi or without any beginning and the
worshippers simply discover its existence and such images
do not require consecration or Pratistha but a manmade
image requires consecration. This manmade image may be
painted on a wall or canvas. The Salgram Shila depicts
Narayana being the Lord of the Lords and represents
Vishnu Bhagwan. It is a Shila - the shalagram form
partaking the form of Lord of the Lords Narayana and
1904
Vishnu." (emphasis added)
1802. The concept of image and deity in Hindu Law has
been told in para 16 to 19 of Ram Jankijee Deities (supra):
"16. The observations of the Division Bench has been in
our view true to the Shastras and we do lend our
concurrence to the same. If the people believe in the
temples' religious efficacy no other requirement exists
as regards other areas and the learned Judge it seems has
completely overlooked this aspect of Hindu Shastras-In any
event, Hindus have in Shastras "Agni" Devta; "Vayu"
Devta-these deities are shapeless and formless but for
every ritual Hindus offer their oblations before the deity.
The Ahuti to the deity is the ultimate - the learned Single
Judge however was pleased not to put any reliance
thereon. It is not a particular image which is a juridical
person but it is a particular bent of mind which
consecrate the image.
17.One cardinal principle underlying idol worship ought to
be borne in mind:
"that whichever god the devotee might choose for
purposes of worship and whatever image he might
set up and consecrate with that object, the image
represents the Supreme God and none else. There is
no superiority or inferiority amongst the different
gods. Siva, Vishnu, Ganapati or Surya is extolled,
each in its turn as the creator, preserver and
supreme lord of the universe. The image simply gives
a name and form to the formless God and the
orthodox Hindu idea is that conception of form is
only for the benefit of the worshipper and nothing
1905
else." (B.K. Mukherjea - on Hindu Law of Religious
and Charitable Trusts-5th Edn.).
18. In this context reference may also be made to an earlier
decision of the Calcutta High Court in the case of Bhupati
Nath Smrititirtha v. Ram Lal Maitra, wherein Chatterjee, J.
(at page 167) observed:-
"A Hindu does not worship the "idol" or the material body made of clay or gold or other substance, as a mere glance at the mantras and prayers will show. They worship the eternal spirit of the deity or certain attributes of the same, in a suggestive form, which is used for the convenience of contemplation as a mere symbol or emblem. It is the incantation of the mantras peculiar to a particular deity that causes the manifestation or presence of the deity or according to some, the gratification of the deity." (emphasis added) "19. God is Omnipotent and Omniscient and its presence is felt not by reason of a particular form or image but by reason of the presence of the omnipotent: It is formless, it is shapeless and it is for the benefit of the worshippers that there is manifestation in images of the Supreme Being. 'The Supreme Being has no attribute, which consists of pure spirit and which is without a second being, i.e. God is the only Being existing in reality, there is no other being in real existence excepting Him - (see in this context Golap Chandra Sarkar, Sastri's Hindu Law: 8th Edn.). It is the human concept of the Lord of the Lords - it is the human vision of the Lord of the Lords: How one sees the deity:
how one feels the deity and recognises the deity and then 1906 establishes the same in the temple (sic depends) upon however performance of the consecration ceremony. The Shastras do provide as to how to consecrate and the usual ceremonies of Sankalpa and Utsarga shall have to be performed for proper and effective dedication of the property to a deity and in order to be termed as a juristic person. In the conception of Debutter, two essential ideas are required to be performed: In the first place, the property which is dedicated to the deity vests in an ideal sense in the deity itself as a juristic person and in the second place, the personality of the idol being linked up with natural personality of the shebait, being the manager or being the Dharam karta and who is entrusted with the custody of the idol and who is responsible otherwise for preservation of the property of the idol. The Deva Pratistha Tatwa of Raghunandan and Matsya and Devi Puranas though may not be uniform in their description as to how Pratistha or consecration of image does take place but it is customary that the image is first carried to the Snan Mandap and thereafter the founder utters the Sankalpa Mantra and upon completion thereof, the image is given bath with Holy water, Ghee, Dahi, Honey and Rose water and thereafter the oblation to the sacred fire by which the Pran Pratistha takes place and the eternal spirit is infused in that particular idol and the image is then taken to the temple itself and the same is thereafter formally dedicated to the deity. A simple piece of wood or stone may become the image or idol and divinity is attributed to the same. As noticed above, it is formless, shapeless but it is the human concept of a particular divine existence which gives it the 1907 shape, the size and the colour. While it is true that the learned Single Judge has quoted some eminent authors but in our view the same does not however, lend any assistance to the matter in issue and the Principles of Hindu Law seems to have been totally misread by the learned Single Judge." (emphasis added) 1803. In Shiromani Gurudwara Prabandhak Committee Amritsar Vs. Shri Som Nath Dass (supra), the question before the Hon'ble Apex Court was whether Guru Granth Sahib was a juristic person or not. While dealing with the issue, the Court observed that certain places of worship which were endowed and recognized by public, like a Gurudwara, a church etc. can also be juristic persons:
"Thus, it is well settled and confirmed by the authorities on jurisprudence and Courts of various countries that for a bigger thrust of socio-political-scientific development evolution of a fictional personality to be a juristic person became inevitable. This may be any entity, living, inanimate, objects or things. It may be a religious institution or any such useful unit which may impel the Courts to recognise it. .... Similarly, where there is any endowment for charitable purpose it can create institutions like a church, hospital, gurudwara, etc. The entrustment of an endowed fund for a purpose can only be used by the person so entrusted for that purpose in as much as he receives it for that purpose alone in trust. When the donor endows for an idol or for a mosque or for any institution, it necessitates the creation of a juristic person. The law also circumscribes the rights of any person receiving such entrustment to use it only for the purpose of such a juristic 1908 person. The endowment may be given for various purposes, may be for a church, idol, gurdwara or such other things that the human faculty may conceive of, out of faith and conscience but it gains the status of juristic person when it is recognised by the society as such."
1804. In the above case the Apex Court in para 30 and 35, also held:
"30. An idol is a "juristic person" because it is adored after its consecration, in a temple. The offering are made to an idol. The followers recognise an idol to be symbol for God. Without the idol, the temple is only a building of mortar, cement and bricks which has no sacredness or sanctity for adoration. Once recognised as a "juristic person", the idol can hold property and gainfully enlarge its coffers to maintain itself and use it for the benefit of its followers. On the other hand in the case of mosque there can be no idol or any images of worship, yet the mosque itself is conferred with the same sacredness as temples with idol, based on faith and belief of its followers. Thus the case of a temple without idol may be only brick, mortar and cement but not the mosque. Similar is the case with the church. As we have said, each religion have different nuclei, as per their faith and belief for treating any entity as a unit." (Para 30) "In our view, no endowment or a juristic person depends on the appointment of a manager. It may be proper or advisable to appoint such a manager while making any endowment but in its absence, it may be done either by the trustees or courts in accordance with law. Mere absence of a manager (sic. does not) negative the existence of a 1909 juristic person. As pointed out in Manohar Ganesh Vs. Lakhmiram (approved in Jogendra Nath Naskars case) referred to above, if no manager is appointed by the founder, the ruler would give effect to the bounty. (Para 35) 1805. The Court in Shiromani Gurdwara Prabandhak Committee, Amritsar Vs. Som Nath Dass & Ors. (supra) held ultimately Guru Granth Sahib a legal person and rules that a juristic person may be entity, living being, object or thing. 1806. The status of Hindu idol, therefore, as juridical person cannot be disputed in view of the aforementioned authority/ pronouncement on this aspect. It is true that the initial verdict of Privy Council in Vidya Varuthi Thirtha Vs. Baluswami Ayyar (supra) and Pramatha Nath Mullick (supra) did attract some otherwise opinion from certain jurist like Dr.S.C. Bagchi in his Ashutosh Mookerjee Lectures, 1931 on Juristic Personality of Hindu Deities, has illustrated in Lecture III, pp. 51-78 and Sir Frederick Pollock in 41 Law Quarterly Review at page 421 but it is too late in the day. Now to admit of any exception in the matter in the case of an idol, therefore, answer is quite easy though in the context of requirement of consecration, as argued by the learned counsels for Muslim parties, it is yet to be seen as to when and in what circumstances an idol can be said to be a Deity having conferred with the juridical personality. It is no doubt true that every idol is not treated to be a Deity. Some Shastric procedure is provided for the said purpose but what is that procedure, how it is to be observed and in what manner rule travels in much wider plane.
1807. In Damodar Das Vs. Adhikari Lakhan Das (1909-10) 37 IA 147, debuttar property vested in an idol and managed by Mahant. On his death, his two Chelas, represented by plaintiff 1910 and defendant settled a disputed right to succession by an ikrarnama in 1874 under which each chela obtained possession of the share of debottar properties allotted to him. The suit brought in 1901 to eject the defendant from the property allotted to him was held barred by limitation, treating his possession adverse to the idol and also to the plaintiff. It is a short judgment. The report of the judgment shows that it was not contested by the respondents before the Judicial Committee. The Privy Council though held that the property prior to the execution of Ikrarnama vested in idol, the legal entity and Mahant was only his representative and manager but then proceeded to hold that on execution of Ikrarnama the possession of junior Chela pursuant to the Ikrarnama became adverse to the right of the idol and of the senior chela, representing that idol and therefore, the suit was barred by limitation. (Subsequently the Apex Court in Bishwanath Vs. Sri Thakur Radha Ballabhi (supra) has held that an idol is a minor and that being so, it could not have filed a suit by itself.) In a case where two Chelas executed Ikrarnama themselves, it was unexpected that one of them would have filed suit for restoration of the possession of the property of the idol. Moreover, if both the chelas could have been treated to be co-shebaits of the idol's property, the possession of the property would be permissive and in case there was any trespass, the property being that of minor, the question of adverse possession would not come. The limitation would not commence as held subsequently by the Apex Court. It is well settled now that the judgments of the Privy Council are binding on the High Courts only if there is no otherwise judgments or authority of the Apex Court but where there is authority of the Apex Court otherwise, it being the law of the 1911 land under the Constitution of India, the judgment of the Privy Council has not a binding precedent.
1808. A Full Bench of Bombay High Court in State of Bombay Vs. Chhaganlal Gangaram Lavar, AIR 1955 Bom. 1 considered the question of binding nature of decisions of the Privy Council after independence and enforcement of Constitution on 26.01.1950 and held:
"So long as the Supreme Court does not take a different view from the view taken by the Privy Council, the decisions of the Privy Council are still binding upon us, and when we say that the decisions of the Privy Council are binding upon us, what is binding is not merely the point actually decided but an opinion expressed by the Privy Council, which opinion is expressed after careful consideration of all the arguments and which is deliberately and advisedly given."
1809. This decision has been referred to with approval by the Apex Court in Pandurang Kalu Patil and another Vs. State of Maharashtra, AIR 2002 SC 733. It is thus clear that it is only an opinion expressed by the Privy Council after careful consideration of all the arguments and which is deliberately and advisedly given which is binding and not merely point actually decided. We, however, propose to consider the above judgment in Damodar Das Vs. Adhikari Lakhan Das (supra) in detail to show as to what actually was held therein while discussing issue no. 13 pertaining to limitation in Suit-5 and leave this as it is at this stage.
1810. A Full Bench in Jodhi Rai Vs. Basdeo Prasad, 8 ALJ 817=(1911) ILR 33 Allahabad 735 held that a suit on behalf of an idol must be carried on by some person who represents the 1912 idol usually a manager of the temple, in which the idol is installed.
1811. In Darshan Lal and others Vs. Shibji Maharaj Birajman, AIR 1923 All. 120, the question arose as to whether Swami Lachhmi Nand, priest of the temple was entitled to file a suit as a next friend of the idol. He said that he looks after the management of the temple which the Court understood as if he conducts the worshipped and dispensed such charities, if any, as are customary at the said shrine and held that Sri Lachhmi Nand was entitled to bring suit as a next friend of the idol. It said:
" The fact that he is not the manager or trustee under the particular deed of endowment which he desires to set up for the benefit of the aforesaid idol would not prevent him from having a right to act on behalf of the idol in this litigation, if he occupied a position of manager or trustee qua the performance of these ceremonies of worship or charities for the benefit of which the trust monies were directed to be applied."
1812. However, the Court further held that a person claiming a mere benevolent interest in the fortunes of an idol cannot be permitted to sue in the name and as next friend of the idol. 1813. In Sheo Ramji Vs. Ridhnath Mahadeo Ji AIR 1923 All. 160 the Court permitted a suit brought by the idol through Sri Vivekanand as next friend to recover possession of the property said to be wrongly sold by a relative of one Ajudhia Puri who was the original manager of the temple property. The Court found that Ajudhia Puri was the original manager of the temple property and had died. His Chela and successor was a minor. Amongst others one Ram Kishna Das was appointed to 1913 supervise the management who in his turn appointed one Sri Vivekanand as guardian of the property of the idol on behalf of the minor. Some property of the idol was sold by a relative of Ajudhia Puri and to recover its possession Vivekanand filed the suit. The Court held that Vivekanand has sufficient interest in the subject magtter of the suit to bring the same in the name and on behalf of the idol.
1814. In Pramatha Nath Mullick (surpa), on page 143, held that an idol is a juristic person and the Shebait is its representative. It is not movable property and cannot be willed away by the Shebait and observed:
"There may be, in the nature of things, difficulties in adjusting the legal status of the idol to the circumstances and requirements of its protection and location and there may no doubt also be a variety of other contracts of such a persona with mundane ideas. But an argument which would reduce a family idol to the position of a mere moveable chattel is one to which the Board can give no support. They think that such an argument is neither in accord with a true conception of the authorities, nor with principle. The Board does not find itself at variance with the views upon this subject taken in the Appellate Court or with the analysis of the authorities there contained.
1815. In Pramatha Nath Mullick vs. Pradyumna Kumar Mullick (supra) the Could also said that an idol may appear by its interested next friend. The Judicial Committee observed:
"One of the questions emerging at this point, is as to the nature of such an idol and the services due thereto. A Hindu idol is, according to long established authority, 1914 founded upon the religious customs of the Hindus, and the recognition thereof by Courts of Law, a "juristic entity." It has a juridical status with the power of suing and being sued. Its into rests are attended to by the person who has the deity in his charge and who is in law its manager with all the powers which would, in such circumstances, on analogy, be given to the manager of the estate of an infant heir. It is unnecessary to quote the authorities; for this doctrine, thus simply stated, is firmly established." (page
140) "The person founding a deity and becoming responsible for those duties is de facto and in common parlance called shebait. This responsibility is, of course, maintained by a pious Hindu, either by the personal performance of the religious rites or--as in the case of Sudras, to which caste the parties belonged--by the employment of a Brahmin priest to do so on his behalf. Or the founder, any time before his death or his successor likewise may confer the office of shebait on another."
(page 141) "It must be remembered in regard to this branch of the law that the duties of piety from the time of the consecration of the idol are duties to something existing which, though symbolising the Divinity, has in the eye of the law a status as a separate persona. The position and rights of the deity must in order to work this out both in regard to its preservation, its maintenance and the services to be performed, be in the charge of a human being." (page
141)
9. "A fortiori it is open to an idol acting through his 1915 guardian the Shebait to conduct its own worship in its own way at its own place always on the assumption that the acts of the Shebait expressing its will are not inconsistent with the reverent and proper conduct of its worship by those members of the family who render service and pay homage to it." (page 145) 1816. It shows that a Hindu deity though treated as an individual but not an ordinary individual in all sense in all respects. A Deity is not only an individual but individual plus something else.
1817. In Administrator General of Bengal Vs. Balkissen, ILR 51 Cal 953=AIR 1925 Cal 140 the Court held that after the appointment of Shebait the right to sue for possession of the property with which the idol is endowed, belongs to the Shebait and not to the idol. With great respect, we find that the observation that the right to sue belongs to Shebait and not the idol has to be read in the context of the dispute before the Court. It cannot be read that even though the property is debutter property, that belong to an idol yet idol itself has no right to sue or being sued but this would belong to Shebait. Such an understanding and interpretation of the judgement would reduce the status of idol qua Shebait who otherwise is not held to be the owner of the debutter property since idol being a juristic person is the owner. As usually happen, since a juristic person cannot act on its own, for the purpose of procedure the action on behalf of juristic person is initiated and taken by its manager, and, in the case of an idol by the Shebait, if any, otherwise the next friend but that does not mean that the idol itself is denuded of its right to protect its property by filing a suit at all. 1818. The case of Gopalji Maharaj Vs. Krishna Sunder 1916 Nath Kaviraj AIR 1929 All. 887 was decided by an Hon'ble Single Judge of this Court in the peculiar facts of that case. A suit was filed by Sri Swami Keshwanandji in the name of Sri Gopalji Maharaj, an idol of a Hindu temple claiming himself as a Manager of the shrine. As a matter of fact, the Court found that the shrine was founded by one Jagdish Pandit and successors to him in his family were Madho Sudan Das Goswami, Narhari Das Goswami, Naudip Chand Goswami and then Brij Gopal Goswami. Shebaitship or Mutwalliship vests in the family of Jagdish Pandit the founder and Sri Brij Gopal Goswami, the sole surviving member of the founder's family and Swami Keshwanand had no right in the matter. He claimed himself to be the manager of the plaintiff idol through one Mt. Basant Kumari and the Court found that she had no right to appoint Swami Keshwanand as manager of the shrine. In these circumstances, the question arose whether the suit was properly framed having been filed on behalf of the plaintiff idol by a person who was neither Mutwalli nor Shebait of the temple nor was appointed Shebait or manager of the temple by or on behalf of Brij Gopal Goswami who was the sole surviving member of the founder's family. This question was answered against Swami Keshwanand and the suit was held not maintainable. This Court recorded a finding of fact that it was not shown what interest Swami Keshwanand had in the idol or in the property belonging to the idol.
1819. In Manohar Mukherji Vs. Bhupendra Nath AIR 1932 Cal 791 a Full Bench observed:
"But this analogy of a human transfer need not be carried too far, for the deity is not in need of property, nor does it hold any; what is given to the deity becomes 1917 available to all.
The deity is the recipient of the gift only in an ideal sense; the dedicated property belongs to the deity in a similar sense; in reality the property dedicated is in the nature of an ownerless thing. In ancient times, except in cases of property dedicated to a brotherhood of sanyasis, all endowments ordinarily were administered by the founder himself and after him his heirs. The idea of appointing a shebait is of more modern growth. When a Hindu creats an endowment, its management is primarily in him and his heirs,and unless he appoints a shebait he himself fills that office and in him rests that limited ownership, - notwithstanding that, on the one hand, he is the donor and, on the other, the recipient on behalf of the deity, the juridical person, - which has to be exercised until the property offered to the deity has been suitably disposed of. The true principle of Hindu Law is what is mentioned in the Chhandogya Upanishada, namely, that the offerings to the gods are offerings for the benefit of all beings (Chap. 5, p. 24 K. 2-5). And Raghunandan has quoted a text of Matsya Sukta which says:
Having made offerings to a God, the sacrificial fee also should be given to the God. The whole of that should be given to a Brahmin otherwise it is fruitless."
1820. In Deoki Nandan Vs. Murlidhar (supra) the Apex Court considered the question as to who are beneficiaries when the temple is built and idol installed therein and the property endowed therefor. In paragraph no.6 of the judgment the Court held that under the Hindu law an idol is a juristic person capable of holding property and the property endowed for the institution 1918 vests in it but it is only in an ideal sense that the idol is the owner of the endowed property and it cannot itself make use of them; it cannot enjoy them or dispose of them, or even protect them. In short, the idol can have no beneficial interest in the endowment. In para 7 the Court held that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers. It held:
"(7) When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshipers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshipers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers."
1821. In Angurbala Mullick v. Debabrata Mullick (supra), while examining the nature of Sevayatship as a property, Hon'ble Supreme Court distinguished between the English trust 1919 and Hindu religious endowment as:
"It is settled by the pronouncement of the Judicial Committee in Vidya Varuti v. Balusami, 48 I.A. 302 that the relation of a Shebait in regard to debutter property is not that of a trustee to trust property under the English law. In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of cestui que trust. In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the Shebait or Mahant is a mere manager."
1822. Distinction between right of the idol to file a suit itself or a suit filed by Shebait for the benefit of an idol has been noticed by a Division Bench of Bombay High Court in Shree Mahadoba Devasthan Vs. Mahadba Romaji Bidkar & Others AIR 1953 Bombay 38. There Jagadindra Nath Vs. Hemanta Kumar Devi (supra) was relied on to argue that the right to sue vested in the Shebait and not in the idol. This aspect has been dealt with in a lucid manner in paras 2 and 3 of the judgment, which says:
"2. ...The contention, however, which was urged by the defendants and which found favour with the learned trial Judge was that even though the image of Shree Mahadoba was a juridical person the whole management of the properties belonging to the image could be and was carried on by its shebait or its vahivatdar and the right to sue for the protection of the properties belonging to the image of Shree Mahadoba was vested in the shebait and not in the image or the idol. Reliance was placed in support of this contention on the observations of their Lordships of 1920 the Privy Council in Jagadindra Nath v. Hemanta Kumari Debi, 32 cal. 129 P.C. where Sir Arthur Wilson observed (p. 141) :
"But assuming the religions dedications to have been of the strictest character, it still remains that the possession and management of the dedicated property belongs to the shebait. And this carries with it the right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the shebait, not in the idol, and in the present case the right to sue accrued to the plaintiff when he was under age. The case therefore falls within the clear language of S.7, Limitation Act..."
These observations were particularly relied on for the purpose of shewing that the suit for setting aside the alienations complained of could not be filed in the name of Shree Mahadoba Devasthhan at all but could only be filed in the name of the shebait for the time being who was Waman Chimnaji Waghule, original defendant 3. These observations of their Lordships of the Privy Council were, however, made in a suit which was a suit for recovering possession of the property belonging to the idol against the persons who had dispossessed the idol of the same. The shebait of the idol was then a minor. The idol was no doubt a juridical person and capable of suing or being sued, but even there the suit could be brought in the name of the idol by the shebait and the shebait was a minor with the result that their Lordships of the Privy Council held that the right of possession and management of the dedicated property having belonged to the shebait whatever suits were 1921 necessary for the protection of the property could also be brought by the shebait. There is no doubt that the words "not in the idol" are a part of the sentence which was used by their Lordships: "Every such right is vested in the shebait, not in the idol." Their Lordships of the Privy Council were, however, concerned with a case where even if the idol being a juridical person capable of holding the property could have filed the suit for recovering possession of the property of which it was dispossessed, that suit could only have been filed though in the name of the idol by its shebait and the shebait being a minor, they had got to consider what the position would be if the shebait was the person who could and should have filed the suit in the name of the idol for recovering possession of the property. We are of the opinion that their Lordships had not their attention focussed on this aspect of the question, namely, whether a suit could have been filed in the name of the idol by the shebait apart from the shebait vindicating his right of possession and management of the dedicated property and filing a suit for the protection of the same. This dictum of their Lordships of the Privy Council was considered by a Division Bench of the Calcutta High Court in the case of Jyoti Prosad v. Jahor Lal, AIR 1945 Cal 268. In the course of the judgment Biswas J. observed as follows (p.
277) :
"On the first point, the appellants' sheet anchor is the dictum of Sir Arthur Wilson in the Privy Council case in Jagadindra Nath Soy v. Hemanta Kumari Debi, 81 Ind. App. 203, that the right of suit is vested in the 1922 shebait, and not in the idol, but as has been explained in various decisions this does not and cannot mean that a Hindu idol is incapable of suing. The power of suing (as also being sued) undoubtedly resides in the idol, though ex necessitate rei the power must be exercised by and through a sentient being representing the idol. As was pointed out by Pal J. In. Tarit Bhusan v. Sri Iswaar Sridhar Salagram Shila Thakur, I.L.R. (1941) 2 Cal. 477 at page 531 where this question is discussed, the suit in Jagadindra Nath Roy v. Hemanta Kumari Debi, 31 Ind. App. 203 (P.C.), was not by the idol represented by its shebait but by the shebait himself as such to enforce the proprietary right of the idol in certain properties. The High Court had dismissed the suit as barred by limitation on the ground that as the interest was admitted to be in the idol, there was nothing to prevent a suit being brought on behalf of the idol by the plaintiff's mother during his minority, but the Judicial Committee reversed the decision, holding that as the possession and management of the dedicated property belonged to the shebait and this carried with it the right to bring whatever suits were necessary for the protection of the property, the right to sue accrued to the plaintiff, and as he was a minor at the time, he could bring the suit within three years after he attained majority under Section 7 of Act 15 of 1877 (corresponding to S. 6 of the present Limitation Act). It is in this connection that Sir Arthur Wilson made the observation on which the appellants rely."
The learned Judge then proceeded to quote the 1923 observations of Lord Shaw in Pramatha Nath Mullick v. Pradhyumna Kumar Mullick, 52 Ind. App. 245 where their Lordships of the Privy Council dwelling on the nature of a Hindu idol expressly recognised it as a juristic entity and observed that it has a juridical status with the power of suing and being sued; and also the observations of the Judicial Committee in Radha Benode Mandal v. Gopal Jiu Thakur, 54 Ind. App. 238 P.C., where a clear distinction was drawn between a suit in which the idol itself was the plaintiff and the suit in which the plaintiffs wore shebaits of the idol. The learned Judge then observed (p.
277):
"It is quite true that a Hindu idol is a juridical person capable of holding legal rights only in an ideal sense, and it may also be, as was indicated by Sir George Rankin in the Privy Council decision in Masjid Shahid Ganj v. Shiromani Gurudwira Parbandhak Committee, Amritsar, 67 Ind. App. 251 at p.264 (P.C.), that the procedure of our Courts only allows for a suit in the name of an idol, but nevertheless the position remains incontestable that a Hindu idol may be a competent plaintiff in a suit in respect of property held or claimed by it, and that this is a right quite distinct from that which belongs to its shebait or shebaits to sue on its behalf."
(3) Normally speaking, a manager or an agent would not be competent to file a suit in his own name in regard to the affairs of his principal and such a suit even if brought by the manager would have to be in the name of the principal. The principal in the case of an image or idol is not an 1924 entity capable of acting on its own, with the result that it has of necessity got to act through its manager or an accredited agent, who under the circumstances is the only person capable of performing these functions in the name of the idol, The shebait is in possession and management of the property belonging to the image or idol, and laving such possession and management vested in him, it is only an extension of the principle of responsibility from the image or idol to the manager, or to use the other words, from the principal to the agent to vest the right of protection of the property which is incidental to the right of possession and management thereof by way of filing a suit in connection with the same, in the shebait. The extension of the right in the shebait however does not mean that the right which the image or the idol as a juridical person has by virtue of its holding the property to file a suit in regard thereto is by any process eliminated. Both these rights can exist simultaneously, so that if the suit is filed in the name of the image or idol, the image or the idol would be a proper plaintiff, though, as observed before, of necessity it would have to be represented in the suit by its manager or shebait. If the manager or the shebait on the other hand chooses in vindication of his right to sue for the protection of the properties to file a suit in his own name, he may just as well do so. But that would be no bar to the right of the image or the idol to file such a suit if it had chosen to do so. Of course these rights either by the image or the idol or by the manager or by the shebait could be exercised only by the one or the other and not by both; so that if the cause of action was prosecuted to judgment, it would be merged 1925 in a decree properly passed in favour of the plaintiff and the defendant could not be proceeded against any more in respect of that very cause of action." (emphasis supplied) 1823. In Sri Iswar Radha Kanta Jew Thakur and others V. Gopinath Das and others AIR 1960 Cal. 741 Hon'ble P.C. Mallick, J. in para 18 said:
" .....................According to Hindu Law, sebait represents the deity and he alone is competent to institute a suit in the name of the deity. In exceptional circumstances, however, where the sebait does not, or by his own act deprives himself of the power of representing the deity, a third party is competent to institute a suit in the name of the deity to protect the debutter property. Dr. Das contends that such a party must be a member of the family or a worshipper and that a total stranger, in law, is not competent to institute a suit in the name of the deity. I do not, however, consider this to be the correct view in law. A worshipper or a member of the family has no doubt his own right to institute a suit to protect his right to worship and for that purpose to protect the debutter property. That is, however, a suit by the member of the family or worshipper in his personal capacity and not a suit by the deity. The deity has also a right of its own to have a suit instituted by a next friend. As I understand the law, the person entitled to act as next friend is not limited to the members of the family or worshipper. Anybody can act as such next friend, but the law requires that anybody other than sebait instituting a suit in the name of the deity must be appointed as such by an order of the Court."
(Para 18) 1926 1824. In Bishwanath & others Vs. Sri Thakur Radha Ballabhi (supra) the Apex Court upheld the right of a deity to file a suit for declaration of its title and possession thereof. It also held that an idol of Hindu temple is a juridical person and when Shebait acts adversely to its interest, the idol being in the position of a minor, any person interested in the worship of idol can represent as its next friend to file a suit. The Court said :
"(9) Three legal concepts are well settled: (1) An idol of a Hindu temple is a juridical person; (2) when there is a Shebait, ordinarily no person other than Shebait can represent the idol; and (3) worshippers of an idol are its beneficiaries, though only in a spiritual sense....."
"An idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. It is a pragmatic, yet a legal solution to a difficult situation. Should it be held that a Shebait, who transferred the property, can only bring a suit for recovery, in most of the cases it will be an indirect approval of the dereliction of the Shebait's duty, for more often than not he will not admit his default and take steps to recover the property, apart from other technical pleas that may be open to the transfer in a suit.......That is why decisions have permitted a worshipper in such circumstances to represent the idol and to recover the property for the idol." (Para 10) 1825. A Single Judge in Kishore Joo Vs. Guman Behari Joo Deo, AIR 1978 All.-1 also followed the ratio and in para 9 of the judgment observed:
"It is settled law that normally it is the Shebait alone who 1927 can file a suit on behalf of the Idol, but it is also equally well settled that in exceptional circumstances persons other than a Shebait can institute a suit on behalf of an Idol."
1826. Now we come to some precedents about temple. In N.C. Ramanatha Iyer Vs. Board of Commissioners for Hindu Religious Endowments, Madras AIR 1954 Madras 492 the Court observed:
"...The essential requirements of a temple are that it should be a place dedicated to, or founded for, the benefit of the Hindu community, or a section of it, and should be used as a place of worship. ..."
1827. The Apex Court in Poohari Fakir Sadavarthy Vs. Commissioner (supra) has laid down the requisite conditions for a religious institution to be a "temple" and observed as under:
"A religious institution will be a temple if two conditions are satisfied. One is that it is a place of public religious worship and the other is that it is dedicated to or is for the benefit of, or is used as of right by the Hindu Community, or any section thereof, as a place of religious worship."
To constitute a temple it is enough if it is a place of public religious worship and if the people believe in its religious efficacy irrespective of the fact whether there is an idol or a structure or other paraphernalia. It is enough if the devotees or the pilgrims feel that there is some super human power which they should worship and invoke its blessings." (Para 15) (emphasis added) 1828. In the above case the Court also considered Clause 12, Section 9 of Madras Hindu Religious Endowments Act, 1927 1928 which defines 'temple' and held:
"The institution in suit will be a temple if two conditions are satisfied. One is that is a place of public religious worship and the other is that it is dedicated to or is for the benefit of, or is used as of right by, the Hindu community, or any section thereof, as a place of religious worship. We are of opinion that the oral and documentary evidence fully establish the appellants' case that it is not a temple as defined in the Act." (Para 8) 1829. In Tilkayat Shri Govindlalji Maharaj Vs. State of Rajasthan AIR 1963 SC 1638 the question when the existence of a public temple can be conceived, was considered and in para 23, it says:
"23. . . . Where evidence in regard to the foundation of the temple is not clearly available, sometimes, judicial decisions rely on certain other facts which are treated as relevant. Is the temple built in such an imposing manner that it may prima facie appear to be a public temple? The appearance of the temple of course cannot be a decisive factor; at best it may be a relevant factor. Are the members of the public entitled to an entry in the temple? Are they entitled to take part in offering service and taking Darshan in the temple,? Are the members of the public entitled to the take part in the festivals and ceremonies arranged in the temple? Are their offerings accepted as a matter of right? The participation of the member of the public in the Darshan in the temple and in the daily acts of worship or in the celebrations of festival occasions. may be a very important factor to consider in determining, the character of the temple."1929
1830. Various authorities have held that public institutions can be treated as juristic person. Relationship between a temple and an institution was discussed in Commissioner for Hindu Religious and Charitable Endowments, Mysore v. Ratnavarma Heggade (supra), wherein the Hon'ble Supreme Court was to decide whether the temple in dispute was a "temple" as well as a "religious endowment" under the T.N. Hindu Religious Endowments Act, 1927. While deciding the matter, Hon'ble Court observed in paragraph 45:
"If the temple as a place of worship, is an integral part of an Institution, so that it is not separable as an institution, in itself ... In such a case the "institution" is not the temple, although a temple can, by itself, be an institution."
1831. Construing the definition of "temple" under Section 6(20) of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, Hon'ble Mohan, J. (as his Lordship then was) in T.V. Durairajulu Naidu Vs. Commissioner, (supra), in para 18 of the judgment, observed:
"18. . . . If a sense of reverence is created by the place in the belief that God resides there or if an edifice devoted to divine worship, that would be enough to attract the definition of "Temple" under S. 6(20) of the Act. In other words, it is a sense of reverence that is very important. ...........Nowhere the requirements as are ordinarily expected of a temple are insisted upon. It is a faith that it is the abode of God that matters. It is that compelling faith, that by offering prayers, one will be the object of bounty, that is important." (emphasis added) 1832. In Bala Shankar Maha Shankar Bhattjee and others Vs. Charity Commissioner 1995 Suppl. (1) SCC 485 while 1930 laying down certain principles of law, after considering the earlier decision in respect to private and public temple, it was held as under:
"18. From the aforesaid discussion the following principles of law would emerge.
19. A place in order to be a temple, must be a place for public religious worship used as such place and must be either dedicated to the Community at large or any section thereof as a place of public religious worship. The distinction between a private temple and public temple is now well settled. In the case of former the beneficiaries are specific individuals; in the latter they are indeterminate or fluctuating general public or a class thereof. Burden of proof would mean that a party has to prove an allegation before he is entitled to a judgment in his favour. The one or the other of the contending parties has to introduce evidence on a contested issue. The question of onus is material only where the party on which it is placed would eventually lose if he failed to discharge the same. Where, however, parties joined the issue, led evidence, such evidence can be weighed in order to determine the issue. The question of burden becomes academic.
20. An idol is a jurisitic person capable of holding property. The property endowed to it vests in it but the idol has no beneficial interest in the endowment. The beneficiaries are the worshippers. Dedication may be made orally or can be inferred from the conduct or from a given set of facts and circumstances. There need not be a document to evidence dedication to the public. The consciousness of the manager of the temple or the devotees 1931 as to the public character of the temple; gift of properties by the public or grant by the ruler or Govt.; and long use by the public as of right to worship in the temple are relevant facts drawing a presumption strongly in favour of the view that the temple is a public temple. The true character of the temple may be decided by taking into consideration diverse circumstances. Though the management of a temple by the members of the family for a long time, is a factor in favour of the view that the temple is a private temple it is not conclusive. It requires to be considered in the light of other facts or circumstances. Internal management of the temple is a mode of orderly discipline or the devotees are allowed to enter into the temple to worship at particular time or after some duration or after the head man leaves, the temple are not conclusive. The nature of the temple and its location are also relevant facts. The right of the public to worship in the temple is a matter of inference.
21. Dedication to the public may be proved by evidence or by circumstances obtainable in given facts and circumstances. In given set of facts, it is not possible to prove actual dedication which may be inferred on the proved facts that place of public religious worship has been used as of right by the general public or a section thereof as such place without let or hindrance. In a public debutter or endowment, the dedication is for the use or benefit of the public. But in a private endowment when property is set apart for the worship of the family idol, the public are not interested. The mere fact that the management has been in the hands of the members of the 1932 family itself is not a circumstance to a conclude that the temple is a private trust. In a given case management by the members of the family may give rise to an inference that the temple is impressed with the character of a private temple and assumes importance in the absence of an express dedication through a document. As stated earlier, consciousness of the manager or the devotees in the user by the public must be as of right. If the general public have always made use of the temple for the public worship and devotion in the same way as they do in other temples, it is a strong circumstance in favour of the conclusiveness of public temple. The origin of the temple, when lost in antiquity it is difficult to prove dedication to public worship. It must be inferred only from the proved facts and circumstances of a given case. No set of general principles could be laid."
1833. In A.S. Narayana (supra), dealing this aspect the Court has observed:
"101. The temples are taken to be sanctified space where entire unfragmented Space and Time, in other words, the entire 'Universe' are deposited and the image of the Deity is worshipped symbolising the "Supreme."
Although the Deities appear to be many, each and every Deity is again viewed as the Supreme One and, therefore, the Supreme Reality is one and non-dual. The multiplicity of the Gods has been effected in order to offer the paths which are required according to the entitlement and evolution of each and everyone."
"108. Temple has become the most important centre of activities-religious, cultural and social-among the 1933 people, in particular rural India. Temple is conceived in the likeness of human body. Parts of the temple are named accordingly, by which the organic unity of the temple is emphasised. Obviously, therefore, religious people endow their property for upkeep of temples or propagation of religion. Majority people in India are dedicated to Vishnu, Shiva, Shakti, Ganpathi and Hanuman of Hindu Gods. The cardinal principle underlying idol worship is for one of four modes for self-realisation. Daily routine life in performing rituals to Deity will be gone through with minute accuracy of Abishek (bathing), changing of clothes, offerings of food and the retirement (rest). Religion, therefore, has occupied a significant place and role in the public life in our country. Hindus, therefore, believe that religion is an essential and powerful factor in raising humanity to higher level of thought and being. The priest (archaka or by whatever name called) would conduct rituals to the Deity as per prescribed Agamas, forms, practices and sampradayams."
1834. In Pritam Dass Mahant Vs. Shiromani Gurdwara Prabandhak Committee, AIR 1984 SC 858 the distinction between temple of Hindus and that of Sikhs came to be considered and the Apex Court held that temples are fouLand almost in every religion but there are some differences between the sikh temples and those of other religions. The Apex Court thereafter pin pointed the distinctive features of Sikh Gurdwaras qua Hindu temples and held:
"(1) Sikh temples are not the place of idol worship as the Hindu temples are. There is no place for idol worship in a Gurdwara. The central object of worship in a Gurdwara is 1934 Sri Guru Granth Sahib, the holy book. The pattern of worship consists of two main items: reading of the holy hymns followed by their explanation by some learned man, not necessarily a particular Granthi and then singing of some passages from the Holy Granth. The former is called Katha and the second is called Kirtan. A Sikh thus worships the Holy Words that are written in the Granth Sahib, the Words or Shabada about the Eternal Truth of God. No idol or painting of any Guru can be worshipped. (2) Sikh worship in the Gurdwara is a congregational worship, whereas Hindu temples are meant for individual worship. A Sikh does the individual worship at home when he recites Gurbani daily. Some scriptures meant for this purpose are Japji, Jaap, Rahras, Kirtan Sohila. Sangat is the collective body of Sikhs who meet very day in the Gurdwara."
1835. The above dictum was followed in Shiromani Gurdwara Parbandhak Committee Vs. Mahant Harnam Singh and others (supra) (para 13 of the judgement) and after referring to the above mentioned observations in para 14 the Court said:
"14. The sine qua non for an institution, to be treated as Sikh Gurdwara, as observed in the said case, is that there should be established Guru Granth Sahib, and the worship of the same by congregation, and a Nishan Sahib. There may be other rooms of the institution made for other purposes but the crucial test is the existence of Guru Granth Sahib and the worshippers thereof by the congregation and Nishan Sahib."
1836. In Mukundji Mahraj Vs. Persotam Lalji Mahraj 1935 (supra), holding that alienation of temple is not permissible, a Division Bench of High Court held in para 28 as under:
"28. Whatever may be said about a permanent alienation of endowed property other than a temple, in the very nature of things, having regard to the duties of a Manager or a Shebhait towards the idol or institution, there can be no necessity of alienating the temple or any portion of it in which the idol is installed. The maintenance of the entire building is the prime concern of the Manager or the Shebait.
The temple has a special sanctity distinct from other endowed property. To alienate the temple itself is to cut at the root of the very existence of the idol in the habitation intended by the founder Hindu Sentiment views the alienation of a temple as a sacrilege. Not until the idol has been removed from the temple in accordance with shastric rites and has assumed a new habitation and the temple abandoned as a place of worship may the temple be alienated or sold in execution of a decree."
1837. On pointing out to Sri Ravi Shankar that in some of the judgment like that of Madras High Court, the observations are with reference to the particular statute and the definition of temple therein, Sri Prasad replied that the definition of temple in the above Acts has to be read in the light of Shastric Laws of Hindus and if any other view is taken or the definition of temple is taken otherwise then it would be illegal, ultra vires and violative of Article 25 of the Constitution which confer fundamental right of religious customs etc. according to the religious scriptures.
1838. In Kasi Mangalath Illath Vishnu Nambudiri (supra) 1936 the Court held that a public temple is "res extra commercium"
and says :
".....Being a public temple and therefore res extra commercium it is not open to a private individual to acquire by prescription any private ownership in regard thereto. The character of the temple as a public temple cannot be taken away by any assertion of private right ......"
1839. In Hari Raghunath Patvardhan Vs. Antaji Bhikaji Patvardhan & Others 1919 (XLIV) ILR Bombay 466 a dispute arose about removal of image from its position and to install it in a new building. The Court said :
"Taking the most liberal view of the powers of the manager, I do not think that as the manager of a public temple he can do what he claims the power to do, viz., to remove the image from its present position and to instal it in the new building. The image is consecrated in its present position for a number of years and there is the existing temple. To remove the image from that temple and to instal it in another building would be practically putting up a new temple in place of the existing temple. Whatever may be the occasions on which the installation of a new image as a substitute for the old may be allowable according to the Hindu law, it is not shown on behalf of the defendant that the ruinous condition of the existing building is a ground for practically removing the image from its present place to a new place permanently. We are not concerned in this suit with the question of the temporary removal which may be necessary when the existing building is repaired. The defendant claims the 1937 right to instal it in the new building permanently, and I do not think that as a manager he could do so, particularly when he is not supported by all the worshippers of the temple in taking that step"
1840. In Kalikanta Chatterjee & Ors. Vs. Surendra Nath Chakravarty & Ors. AIR 1925 Calcutta 648 an interesting question came to be considered. There was an old temple having the image of deity Tara. The image was broken about 40 years ago by some ruffians, fragments of which were subsequently recovered from a tank. The temple also fell down at that time. Thereafter the worship of the deity was carried out with a ghot (earthen pot) on an an adjoining piece of land. With the passage of time, the shrine lost its popularity. The defendant no.2 thereafter with an idea of restoring the glory of shrine, made efforts, as a result whereof a new temple was erected, and a new image was brought and installed therein. A question was raised whether there is restoration of old image by substituting a new one. The Calcutta High Court referred to a passage in a Nirnaya Sindhu and also said:
"With regard to the second contention viz., that there could be no restoration of the old image in the present case according to the Shastras, it is urged that the image is admitted in the plaint to be (Self-revealed) and reliance is placed upon a passage in the Nirnaya Sindhu (see also Dharma Sindhu) which runs as follows:
vFk th.kksZ)kj%A l p fyaxknkS nX/ks Hkxzs vfyrs ok dk;~;Z%A v;¥~p vukfnfl) izfrf"Br fyaxknkS Hkaxkfnnq"Vsfiu dk;~;Z% r=rq egkfHk"ksda dq;~;Zfnfr fofodze%A
10. Now renewal of Decayed (Image is considered) that 1938 is to be performed when a Linga and the like are burnt or broken removed (from its proper place). But this is not to be performed with respect to a Linga or like which is established by a Sadhu or one who has become successful in the highest religious practices, or which is Anadi i.e., of which the commencement is not known or which has no commencement. But there Mahabhishika or the ceremony of great appointment should be performed. This is said by Tre-Vikrama:-Nirnaya Sindhu of Kamala-kara Bhatta, Bombay Edition of 1900, age 264 (See Golap Chandra sarkar's Hindu Law, 4th Edition 473). But according to the plaintiff the image was installed by some remote ancestor of his, while according to the defendants it was installed by one Jantridhar. The image therefore does not appear to be Anadi. It is then urged even if the image bad a commencement, the restoration had not been made within the time prescribed. But the text from Haya Sirsha upon which reliance is placed, while laying down that the restoration after the prescribed period is blameworthy does not say that it is altogether invalid."
1841. The Court also held that it should be seen as to how the people concerned treat and if they believe and proceed that it is a restoration of old image and continue with the worship, nothing more is required.
1842. In Purna Chandra Bysack Vs. Gopal Lal Sett & Ors. 1908 (VIII) Calcutta Law Journal 369, Special bench of Calcutta High Court observed:
"The image or idol is merely the symbol of the Deity, and the object of worship is not the image but the God believed to be manifest in the image for the benefit 1939 of the worshipper who cannot conceive or think of the Deity without the aid of a perceptible form on which he may fix his mind and concentrate his attention for the purpose of meditation. If the image be cracked, broken, mutilated or lost, it may be substituted by a new one duly consecrated."
1843. In Idol of Thakurji Shri Govind Deoji Maharaj, Jaipur (supra) the Apex Court observed in para 6 as under:
"It is obvious that in the case of a grant to the Idol or temple as such there would be no question about the death of the grantee and, therefore, no question about its successor. An Idol which is a juridical person is not subject to death, because the Hindu concept is that the Idol lives for ever, and so, it is plainly impossible to predicate about the Idol which is the grantee in the present case that it has died at a certain time and the claims of a successor fall to be determined." (Para 6) 1844. In para 15 of the judgment in Ram Jankijee Deities (supra) it was held, while usually an idol is consecrated in a temple, it does not appear to be an essential condition. The Apex Court affirmed the Division Bench decision of Madras High Court in Board of Commissioners for H.R.E. Vs. Pidugu Narasimham (supra) and T.R.K. Ramaswami Servai (supra) reiterated:
"The test is not whether it conforms to any particular school of Agama Shastras. The question must be decided with reference to the view of the class of people who take part in the worship. If they believe in its religious efficacy, in the sense that by such worship they are making themselves the object of the bounty of some super-human 1940 power, it must be regarded as "religious worship"..... If the public or that section of the public who go for worship consider that there is a divine presence in a particular place and that by offering worship there they are likely to be the recipients of the blessings of God, then we have the essential features of a temple as defined in the Act." (Para
15) 1845. A Division Bench of Andhra Pradesh High Court in Venkataramana Murthi Vs. Sri Rama Mandhiram (supra) observed that the existence of an idol and a dhwajasthambham are not absolutely essential for making an institution a temple and so long as the test of public religious worship at that place is satisfied, it answer the definition of a temple. This decision is also referred and approved in Ram Jankijee Deities (supra).
1846. A Division Bench of Madras High Court in Board of Commissioners for H.R.E. Vs. Pidugu Narasimham (supra) on page 135 held :
"we think that the question must be decided with reference to the view of the class of people who take part in the worship. If they believe in its religious efficacy, in the sense that by such worship they are making themselves the object of the bounty of some super-human power, it must be regarded as "religious worship." (Page135) 1847. In T.R.K. Ramaswami Servai Vs. Board of Commissioners (supra) with reference to Section 9 (12) of Madras Hindu Religious Endowments Act, 1927, the Court in para 47 observed as under:
"Consecration, according to the ceremonial rites prescribed by the Agama Sastras, is not a legal requisite, though it is a sacredotal necessity according to the views of 1941 the orthodox. The test is not whether the installation of an idol and the mode of its worship conform to any particular school of Agama Sastras. If the public or that section of the public who go for worship consider that there is a divine presence in a particular place and by offering worship at that place, they are likely to be the recipients of the bounty or blessings of God, then, you have got the essential features of a temple as defined in S. 9, cl. (12) of the Act. The presence of an idol, though an invariable feature of Hindu temples, is not a legal requisite under the definition of a temple in S. 9, cl. (12) of the Act. The word "institution" which is used in S. 84(1) of the Act is a term of very wide import, capable of different meanings according to the context in which it is used. It means, among other things, a foundation, a system, a constitution, an establishment, or organisation, a place designed for the promotion of some religious, charitable or other object of public utility and so on." (para 47) (emphasis added) 1848. In Saraswathi Ammal Vs. Rajagopal Ammal (supra), the Court while holding that, a "religious purpose" under Hindu Law must be determined according to Hindu notions, observed:
"(6) It was held in the Madras decisions above noticed that the building of a samadhi or a tomb over the remains of a person and the making of provision for the purpose of Gurupooja and other ceremonies in connection with the same cannot be recognised as charitable or religious purpose according to Hindu law. This is not on the ground that such a dedication is for a superstitious use and hence invalid. Indeed the law of superstitious uses as such has no application to India. The ground of the Madras decisions is 1942 that a trust of the kind can claim exemption from the rule against perpetuity only if it is for a religious and charitable purpose recognised as such by Hindu law and that Hindu law does not recognise dedication for a tomb as a religious or charitable purpose. It is, however, strenuously argued by the learned counsel for the appellants that the perpetual dedication of property in the present case, as in the Madras cases above referred to, must be taken to have been made under the belief that it is productive of spiritual benefit to the deceased and as being some what analogous to worship of ancestors at a sradh.
It is urged, therefore, that they are for religious purposes and hence valid. The following passage in Mayne's Hindu Law, 11th Edition, at page 192, is relied on to show that "What are purely religious purposes and what religious purposes will be charitable must be entirely decided according to Hindu law and Hindu notions."
It is urged that whether or not such worship was originally part of Hindu religion, this practice has now grown up and with it the belief in the spiritual efficacy thereof and that courts cannot refuse to accord recognition to the same or embark on an enquiry as to the truth of any such religious belief, provided it is not contrary to law or morality. It is further urged that unlike in English law, the element of actual or assumed public benefit is not the determining factor as to what is a religious purpose under the Hindu law.
Now, it is correct to say that what is a religious 1943 purpose under the Hindu law must be determined according to Hindu notions. This has been recognised by courts from very early times. Vide- 'Fatma Bibi v. Advocate-General of Bombay' , 6 Bom 42 (D). It cannot also be disputed that under the Hindu law religious or charitable purposes are not confined to purposes which are productive of actual or assumed public benefit. The acquisition of religious merit is also an important criterion. This is illustrated by the series of cases which recognise the validity of perpetual endowment for the maintenance and worship of family idols or for the continued performance of annual sradhs of an individual and his ancestors. See- 'Dwarkanath Bysack v. Burroda Persaud Bysack', 4 Cal 443 (E) and 'Rupa Jagashet v. Krishnaji', 9 Bom 169 (F). So far as the textual Hindu law is concerned what acts conduce to religious merit and justify a perpetual dedication of property therefor is fairly definite. As stated by the learned author Prananath Saraswathi on the Hindu Law of Endowments at page 18-
"From very ancient times the sacred writings of the Hindus divided work productive of religious merit into two divisions named 'ishta' and 'purtta', a classification which has come down to our own times. So much so that the entire object of Hindu endowments will be found included within the enumeration of 'ishta' and 'purtta'."
The learned author enumerates what are 'ishta' works at pages 20 and 21 and what are 'purtta' works at page 27. This has been adopted, by later learned authors on the law of Hindu Religious Endowments and accepted 1944 by Subrahmania Ayyar J., in his judgment in- 'Parthasarthy Pillai v. Thiruvengada Pillai'. 30 Mad 340 at p. 342 (G). These lists are no doubt not exhaustive but they indicate that what conduces to religious merit in Hindu law is primarily a matter of Shastraic injunction. To the extent, therefore, that any purpose is claimed to be a valid one for perpetual dedication on the ground of religious merit though lacking in public benefit,it must be shown to have a Shastraic basis so far as Hindus are concerned. No doubt since then other religious practices and beliefs may have grown up and obtained recognition from certain classes, as constituting purposes Conducive to religious merit. If such beliefs are to be accepted by courts as being sufficient for valid perpetual dedication of property therefore without the element of actual or presumed public benefit it must at least be shown that they have obtained wide recognition and constitute the religious practice of a substantial and large class of persons. That is a question which does not arise for direct decision in this case. But it cannot be maintained that the belief in this behalf of one or more individuals is sufficient to enable them to make a valid settlement permanently tying up property. The heads of religious purposes determined by belief in acquisition of religious merit cannot be allowed to be widely enlarged consistently with public policy and needs of modern society."
1849. The concept of idol, juristic personality and its co- relation with consecration came to be considered before a Division Bench of this Court in Gokul Nathji Maharaj and another Vs. Nathji Bhogi Lal (supra). The Court observed in 1945 para 4 of the judgement:
"According to the traditions these idols that were handed over by Ballabhacharyaji to his seven grandsons were self-revealed idols of Lord Krishna and it is on that account that the learned Judge came to the conclusion that there could not have been due consecration according to law and it could not be said that the spirit of God ever came to reside in them. As it was pointed out by the learned Munsif in his very careful judgment that according to true Hindu belief the idol is not worshipped as such but it is the God behind the idol which is the object or worship.
The learned Munsif has pointed out that there are elaborate provisions in Hindu Law which enable a stone image or an image made of wood to be changed and replaced by another. It cannot be said that the stone image or image made of wood or of gold or other materials is the real object of worship or the real person owning the property. The real owner of the property is deemed to be God Himself represented through a particular idol or deity which is merely a symbol.
From the evidence it is clear that plaintiff 1 as such a symbol has been the object of worship by a large sect of people known as 'Nimar Yas' for over three hundred years and extensive properties are owned by and are in the possession of the said idol. In the circumstances, we think it was unreasonable for the learned Judge to expect that there would be any direct evidence of consecration, nor is it reasonable after such a length of time to require the plaintiffs to prove affirmatively that such ceremonies were performed as would entitle the plaintiff to claim to be a 1946 juristic personality." (para 4) 1850. Further with respect to consecration the Court said:
"5. From the fact that the idol was said to be self- revealed that learned Judge assumed that there could have been no consecration of it. It is impossible after this length of time to prove by affirmative evidence whether there was or there was no consecration and we have not been referred to any book of authority or any evidence which would go to show that in the cases of idols which were deemed by their followers to be self-revealed no consecration takes place. From the fact and circumstances, however, it is abundantly clear that the idol was duly recognised by all those who believed in it as an idol of Lord Krishna and was worshipped as such. Properties were dedicated to it and properties have been brought to its use through centuries that it has existed.
After all the question whether a particular idol is or is not duly consecrated must depend upon the religious faith and belief of its followers and we have no doubt that all that was necessary to deify it must have been done by those who believed in the said idol."
1851. In Ganpat Vs. Returning Officer (1975) 1 SCC 589, the Court noticed varied religious practices of Hindus and observed that Hindu is inclined to believe the divine in every manifestation, whatever it may be, and is doctrinally tolerant. The Hindu is deposed to think synthetically. To regard other forms of worship of strange Gods and divergent doctrines as inadequate rather than wrong or objectionable; he (Hindu) tends to believe that the highest divine powers co-complement each other for the well-being of the world and mankind. Religion, 1947 therefore, is one of the personal beliefs, is more a cultural attitude towards a physical thinking in that way of life and is worship of the image of God in different manifestation. 1852. In Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi (supra), in para 30 of the judgment, it was held:
"30. Hinduism cannot be defined in terms of Polytheism or Henotheism or Monotheism. The nature of Hindu religion ultimately is Monism/Advaita. This is in contradistinction to Monotheism which means only one God to the exclusion of all others, Polytheism is a belief of multiplicity of Gods: On the contrary, Monism is a spiritual belief of one Ultimate Supreme and manifests Himself as many. This multiplicity is not contrary to on-dualism. This is the reason why Hindus stall adoring any Deity either handed down by tradition or brought by a Guru or Swambhuru and seek to attain the Ultimate Supreme."
(emphasis added) 1853. In Shastri Yagnapurushdasji & others Vs. Muldas Bhundardas Vaishya and another AIR 1966 SC 1119, the Court considered the question as to whether Swaminarayan sect is a religion distinct and separate from Hindu religion or not:
"26. That takes us to the main controversy between the parties. Are the appellants justified in contending that the Swaminarayan sect is a religion distinct and separate from the Hindu religion, and consequently, the temples belonging to the said sect do no fall within the ambit of s. 3 of the Act ? In attempting to answer this question, we must inevitably enquire what are the distinctive features of Hindu religion? The consideration of this question, prima 1948 facie, appears to be somewhat inappropriate within the limits of judicial enquiry in a court of law. It is true that the appellants seek for reliefs in the present litigation on the ground that their civil rights to manage their temples according to their religious tenets are contravened; and so, the Court is bound to deal with the controversy as best as it can. The issue raised between the parties is undoubtedly justiciable and has to be considered as such; but in doing so, we cannot ignore the fact that the problem posed by the issue, though secular in character, is very complex to determine; its decision would depend on social, sociological, historical, religious and philosophical considerations; and when it is remembered that the development and growth of Hindu religion spreads over a large period nearly 4,000 years, the complexity of the problem would at once become patent.
27. Who are Hindus and what are the broad features of Hindu religion, that must be the first part of our enquiry in dealing with the present controversy between the parties. The historical and etymological genesis of the word "Hindu" has given rise to a controversy amongst indologists; but the view generally accepted by scholars appears to be that the word "Hindu" is derived from the river Sindhu otherwise known as Indus which flows from the Punjab. "That part of the great Aryan race", says Monier Williams, "which immigrated from Central Asia, through the mountain passes into India, settled first in the districts near the river Sindhu (now called the Indus). The Persians pronounced this word Hindu and named their Aryan brethren Hindus. The Greeks, who probably gained 1949 their first ideas of India from the Persians, dropped the hard aspirate, and called the Hindus "Indoi". ("Hinduism"
by Monier Williams, p.1.)"
28. The Encyclopaedia of Religion and Ethics, Vol. VI, has described "Hinduism" as the title applied to that form of religion which prevails among the vast majority of the present population of the Indian Empire (p. 686). As Dr. Radhakrishnan has observed; "The Hindu civilization is so called, since its original founders or earliest followers occupied the territory drained by the Sindhu (the Indus) river system corresponding to the North-West Frontier Province and the Punjab. This is recorded in the Rig Veda, the oldest of the Vedas, the Hindu scriptures which give their name to this period of Indian history. The people on the Indian side of the Sindhu were called Hindu by the Persian and the later western invaders". ("The Hindu View of Life" by Dr. Radhakrishnan, p. 12.) That is the genesis of the word "Hindu".
29. When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more.
30. Confronted by this difficulty, Dr. Radhakrishnan realised that "to many Hinduism seems to be a name 1950 without any content. Is it a museum of beliefs, a medley of rites, or a mere map, a geographical expression?" ("The Hindu View of Life" by Dr. Radhakrishnan, p. 11.) Having posed these questions which disturbed foreigners when they think of Hinduism, Dr. Radhakrishnan has explained how Hinduism has steadily absorbed the customs and ideas of peoples with whom it has come into contact and has thus been able to maintain its supremacy and its youth. The term 'Hindu', according to Dr. Radhakrishnan, had originally a territorial and not a credal significance. It implied residence in a well-defined geographical area. Aboriginal tribes, savage and half-civilized people, the cultured Dravidians and the Vedic Aryans were all Hindus as they were the sons of the same mother. The Hindu thinkers reckoned with the striking fact that the men and women dwelling in India belonged to different communities, worshipped different gods, and practiced different rites ("The Hindu View of Life" by Dr. Radhakrishnan, p. 12) (Kurma Purana)
31. Monier Williams has observed that "it must be borne in mind that Hinduism is far more than a mere form of theism resting on Brahmanism. It presents for our investigation a complex congeries of creeds and doctrines which in its gradual accumulation may be compared to the gathering together of the mighty volume of the Ganges, swollen by a continual influx of tributary rivers and rivulets, spreading itself over an ever-increasing area of country and finally resolving itself into an intricate Delta of tortuous steams and jungly marshes ..... The Hindu religion is a reflection of the composite character of the 1951 Hindus, who are not one people but many. It is based on the idea of universal receptivity. It has ever aimed at accommodating itself to circumstances, and has carried on the process of adaptation through more than three thousand years. It has first borne with and then, so to speak, swallowed, digested, and assimilated something from all creeds." ("Religious Thought & Life in India" by Monier Williams, P. 57.)
32. We have already indicated that the usual tests which can be applied in relation to any recognised religion or religious creed in the world turn out to be inadequate in dealing with the problem of Hindu religion. Normally, any recognised religion or religious creed subscribes to a body of set philosophic concepts and theological beliefs. Does this test apply to the Hindu religion? In answering this question, we would base ourselves mainly on the exposition of the problem by Dr. Radhakrishnan in his work on Indian Philosophy. ("Indian Philosophy" by Dr. Radhakrishnan, Vol. I, pp. 22-23.) Unlike other countries, India can claim that philosophy in ancient India was not an auxiliary to any other science or art, but always held a prominent position of independence. The Mundaka Upanisad speaks of Brahma-vidya or the science of the eternal as the basis of all sciences, 'sarva-vidya -pratishtha'. According to Kautilya, "Philosophy" is the lamp of all the sciences, the means of performing all the works, and the support of all the duties. "In all the fleeting centuries of history", says Dr. Radhakrishnan, "in all the vicissitudes through which India has passed, a certain marked identity is visible. It has held fast to certain psychological traits which constitute its 1952 special heritage, and they will be the characteristic marks of the Indian people so long as they are privileged to have a separate existence." The history of Indian thought emphatically brings out the fact that the development of Hindu religion has always been inspired by an endless quest of the mind for truth based on the consciousness that truth has many facets. Truth is one, but wise men describe it differently. The Indian mind has, consistently through the ages, been exercised over the problem of the nature of godhead the problem that faces the spirit at the end of life, and the inter-relation between the individual an the universal soul. "If we can abstract from the variety of opinion", says Dr. Radhakrishnan, "and observe the general spirit of Indian thought, we shall find that it has a disposition to interpret life and nature in the way of monistic idealism, though this tendency is so plastic, living and manifold that it takes many forms and expresses itself in even mutually hostile teachings". (Ibid, p.32.)
33. The monistic idealism which can be said to be the general distinguishing feature of Hindu Philosophy has been expressed in four different forms : (1) Non-dualism or Advitism; (2) Pure monism; (3) Modified monism; and (4) Implicit monism. It is remarkable that these different forms of monistic idealism purport to derive support from the same vedic and Upanishadic texts. Shankar, Ramanuja, Vallabha and Madhva all based their philosophic concepts on what they regarded to be the synthesis between the Upanishads, the Brahmasutras and the Bhagavad Gita. Though philosophic concepts and principles evolved by different Hindu thinkers and philosophers varied in many 1953 ways and even appeared to conflict with each other in some particulars, they all had reverence for the past and accepted the Vedas as the sole foundation of the Hindu philosophy. Naturally enough, it was realised by Hindu religion from the very beginning of its career that truth was many-sided and different views contained different aspects of truth which no one could fully express. This knowledge inevitably bred a spirit of tolerance and willingness to understand and appreciate the opponents point of view. That is how "the several views set forth in India in regard to the vital philosophic concepts are considered to be the branches of the self-same tree. The short cuts and blind alleys are somehow reconciled with the main road of advance to the truth." (Ibid p. 48.) When we consider this broad sweep of the Hindu philosophic concepts, it would be realised that under Hindu philosophy, there is no scope for ex-communicating any notion or principle as heretical and rejecting it as such.
34. Max Muller who was a great oriental scholar of his time was impressed by this comprehensive and all- pervasive aspect of the sweep of Hindu philosophy. Referring to the six systems known to Hindu philosophy, Max Muller observed : "The longer I have studied the various systems, the more have I become impressed with the truth of the view taken by Vijnanabhiksu and others that there is behind the variety of the six systems a common fund of what may be called national or popular philosophy, a large manasa (lake) of philosophical thought and language far away in the distant North and in the distant past, from which each thinker was allowed to draw for his 1954 own purposes". ("Six Systems of Indian Philosophy" by Max Muller, p. xvii.)
35. Beneath the diversity of philosophic thoughts, concepts and ideas expressed by Hindu philosophers who started different philosophic schools, lie certain broad concepts which can be treated as basic. The first amongst these basic concepts is the acceptance of the Veda as the highest authority in religious and philosophic matters. This concept necessarily implies that all the systems claimed to have drawn their principles from a common reservoir of thought enshrined in the Veda. The Hindu teachers were thus obliged to use the heritage they received from the past in order to make their views readily understood. The other basic concept which is common to the six systems of Hindu philosophy is that "all of them accept the view of the great world rhythm. Vast periods of creation, maintenance and dissolution follow each other in endless succession. This theory is not inconsistent with belief in progress; for it is not a question of the movement of the world reaching its goal times without number, and being again forced back to its starting point........ It means that the race of man enters upon and retravals its ascending path of realisation. This interminable succession of world ages has no beginning". ("Indian Philosophy" by Dr. Radhakrishnan, Vol. II., p. 26) It may also be said that all the systems of Hindu philosophy believe in rebirth and pre-existence. "Our life is a step on a road, the direction and goal of which are lost in the infinite. On this road, death is never an end of an obstacle but at most the beginning of new steps". ("Indian Philosophy by Dr. Radhakrishnan, Vol. II, p. 27) Thus, it is 1955 clear that unlike other religions and religious creeds, Hindu religion is not tied to any definite set of philosophic concepts as such.
36. Do the Hindus worship at their temples the same set or number of gods ? That is another question which can be asked in this connection; and the answer to this question again has to be in the negative. Indeed, there are certain sections of the Hindu community which do not believe in the worship of idols; and as regards those sections of the Hindu community which believe in the worship of idols their idols differ from community to community and it cannot be said that one definite idol or a definite number of idols are worshipped by all the Hindus in general. In the Hindu Pantheon the first goods that were worshipped in Vedic times were mainly Indra, Varuna, Vayu and Agni. Later, Brahma, Vishnu and Mahesh came to be worshipped. In course of time, Rama and Krishna secured a place of pride in the Hindu Pantheon, and gradually as different philosophic concepts held sway in different sects and in different sections of the Hindu community, a large number of gods were added, with the result that today, the Hindu Pantheon presents the spectacle of a very large number of gods who ar worshipped by different sections of the Hindus.
37. The development of Hindu religion and philosophy shows that from time to time saints and religious reformers attempted to remove from the Hindu thought and practices elements of corruption and superstition and that led to the formation of different sects. Buddha started Buddhism; Mahavir founded Jainism;
1956Basava became the founder of Lingayat religion, Dnyaneshwar and Tukaram initiated the Varakari cult; Guru Nanak inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bhakti cult; and as a result of the teachings of Ramakrishna and Vivekananda, Hindu religion flowered into its most attractive, progressive and dynamic form. If we study the teachings of these saints and religious reformers, we would notice an amount of divergence in their respective views; but underneath that divergence, there is a kind of subtle indescribable unity which keeps them within the sweep of the broad and progressive Hindu religion.
38. There are some remarkable features of the teachings of these saints and religious reformers. All of them revolted against the dominance of rituals and the power of the priestly class with which it came to be associated; and all of them proclaimed their teachings not in Sanskrit which was the monopoly of the priestly class, but in the languages spoken by the ordinary mass of people in their respective regions."
1854. Thereafter, the Court considered the teachings and followings of the Swaminarayan sect and upheld the decision of the High Court that it is not a sect distinct and separate from Hindu religion.
1855. Construing the right protected under Articles 25 and 26 of the Constitution, the Apex Court in para 31 Sri Adi Visheshwara of Kashi Vishwanath Temple (supra) said:
31. The protection of Articles 25 and 26 of the Constitution is not limited to matters of doctrine. They extend also to acts done in furtherance of religion and, 1957 therefore, they contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of the religion. . . . Religion undoubtedly has its basis in a system of beliefs which are regarded by those who profess religion to be conducive to the future well-being. It is not merely a doctrine. It has outward expression in acts as well. It is not every aspect of the religion that requires protection of Articles 25 and 26 nor has the Constitution provided that every religious activity would not be interfered with. Every mundane and human activity is not intended to be protected under the Constitution in the grab of religion. Articles 25 and 26 must be viewed with pragmatism. ......... The right to observe and practice rituals and right to manage in matters of religion are protected under these Articles.
But right to manage the Temple or endowment is not integral to religion or religious practice or religion as such which is amenable to statutory control. These secular activities are subject to State regulation but the religion and religious practices which are integral part of religion are protected. It is well settled law that administration, management and governance of the religious institution or endowment are secular activities and the State could regulate them by appropriate legislation. . . ." 1856. In Sri Venkataramana Devaru Vs. State of Mysore (supra) in reference to Article 26 (b) the Court said that practices which are regarded by the community as part of its religion and under the ceremonial law pertaining to temples, who are entitled to enter into them for worship and were they are entitled to stand for worship and how the worship is to be 1958 conducted are all matter of religion.
1857. Construing the scope of Article 25 and 26 insofar as it confers fundamental right protecting religious freedom, the Apex Court in A.S. Narayana (supra) said that religion as used in these Articles must be construed in its strict and etymological sense. Religion is that which binds a man with his Cosmos, his creator or super force. It is different and rather impossible to define or delimit the expressions "religion" or "matters of religion" used in Article 25 and 26. Essentially, religion is a matter of personal faith and belief of personal relations of an individual with what he regards as Cosmos, his Maker or his Creator which, he believes, regulates the existence of insentient beings and the forces of the universe. Religion is not necessarily theistic and in fact there are well-known religions in India itself like Budhism and Jainism which do not believe in the existence of God. In India. Muslims believe in Allah and have faith in Islam; Christians in Christ and Christianity; Parsis in Zorastianism; Sikhs in Gurugranth Sahib and teachings of Gurunanak Devji, its founder, which is a facet of Hinduism like Brahamos, Aryasamaj etc. The Court in para 89 of the judgment further observed :
"89. A religion undoubtedly has its basis in a system of beliefs and doctrine which are regarded by those who profess religion to be conducive to their spiritual well- being. A religion is not merely an opinion, doctrine or belief. It has outward expression in acts as well. It is not every aspect of religion that has been safeguarded by Articles 25 and 26 nor has the Constitution provided that every religious activity cannot be interfered with. Religion, therefore, be construed in the context of Articles 25 and 26 1959 in its strict and etymological sense. Every religion must believe in a conscience and ethical and moral precepts. Therefore, whatever binds a man to his own conscience and whatever moral or ethical principle regulate the lives of men believing in that theistic, conscience or religious belief that alone can constitute religion as understood in the Constitution which fosters feeling of brotherhood, amenity, fraternity and equality of all persons which find their foot-hold in secular aspect of the Constitution. Secular activities and aspects do not constitute religion which brings under its own cloak every human activity. There is nothing which a man can do. Whether in the way of wearing clothes or food or drink, which is not considered a religious activity. Every mundane or human activity was not intended to be protected by the Constitution under the guise of religion. The approach to construe the protection of religion or matters of religion or religious practices guaranteed by Articles 25 and 26 must be viewed with pragmatism since by the very nature of things, it would be extremely difficult, if not impossible to define the expression religion of matters or religion or religious belief or practice."
1858. Again in para 90, the Court observed :
"Therefore, the right to religion guaranteed under Article 25 or 26 is not an absolute or unfettered right to propagating religion which is subject to legislation by the State limiting or regulating any activity-economic, financial, political or secular which are associated with religious belief, faith, practice or custom. They are subject to reform on social welfare by appropriate legislation by 1960 the State. Though religious practices and performances of acts pursuance of religious belief are as much a part of religion as faith or belief in a particular doctrine, that by itself is not conclusive or decisive. What are essential parts of religion or religious belief or matters of religion and religious practice is essentially a question of fact to be considered in the context in which the question has arisen and the evidence- factual or legislative or historic- presented in that context is required to be considered and a decision reached."
1859. It would also be useful to refer the observations made in para 91 of the judgment :
"91. The Court, therefore, while interpreting Articles 25 and 26 strikes a careful balance between the freedom of the individual or the group in regard to religion, matters of religion, religious belief, faith or worship, religious practice or custom which are essential and integral part and those which are not essential and integral and the need for the State to regulate or control in the interest of the community."
1860. In Durgah Committee, Ajmer Vs. Syed Hussain Ali AIR 1961 SC 1402, the Constitution Bench said :
"While we are dealing with this point it may not be out of place incidentally to strike a note of caution and observe that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for 1961 being treated as religious practices within the meaning of Art. 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other."
1861. In the above judgement, the Court also held:
"If the right to administer the properties never vested in the denomination or had been validly surrendered by it or has otherwise been effectively and irretrievably lost to it, Art. 26 cannot be successfully invoked."
1862. The Court further held:
"It is obvious that Art. 26 (c) and (d) do not create rights in any denomination or its section which it never had; they merely safeguard and guarantee the continuance of rights which such denomination or its section had. In other words, if the denomination never had the right to manage the, properties endowed in favour of a denominational institution as for instance by reason of the terms on which the endowment was created it cannot be heard to say that it has acquired the, said rights as a result of Art. 26(c) and (d), and that the practice and custom prevailing in that behalf which obviously is consistent with the terms of the endowment should be ignored or treated as invalid and the administration and management should now be given to the denomination. Such a claim is plainly inconsistent 1962 with the provisions of Art. 26."
"If the practice in question is purely secular or the affairs which is controlled by the statute is essentially and absolutely secular in Character, it cannot be urged that Art. 25(1) or Art. 26(b) has been contravened. The protection is given to the practice of religion and to the denomination's right to manage its own affairs in matters of religion."
"Art. 26(b) relates to affairs 754 in matters of religion such as the performance of the religious rites or ceremonies or the observance of religious festivals and the like; it does not refer to the administration of the property at all. Article 26(d), therefore, justifies the enactment of a law to regulate the administration of the denomination's property and that is precisely what the Act has purported to do in the present case. If the clause "affairs in matters of religion" were to include affairs in regard to all matters, whether religious or not the provisions under Art. 26(d) for legislative regulation of the administration of the denomination's property would be rendered illusory."
1863. Following the above decision in State of Rajasthan Vs. Sajjanlal Panjawat and others, 1974 SCC (1) 500 the Court held:
"Bearing in mind the scope of clauses (b) and (d) of Art. 26 as expounded in the decisions of this Court, if, as we have held, the right of management of Rikhabdevji temple is lost as it is vested in the State. The respondents cannot complain of any infringement of their fundamental rights to manage and administer its affairs, and as such the High Court was in error in giving the impugned directions."1963
1864. Considering as to what "practices" would constitute part of "religion" in Durgah Committee, Ajmer Vs. Syed Hussain Ali (supra) a Constitution Bench of the Apex Court in para 33 of the judgment held:
" .......in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other."
1865. In para 37 with reference to the scope of Article 26 (c) and (d), the Court said:
"It is obvious that Art. 26(c) and (d) do not create rights in any denomination or its section which it never had; they merely safeguard and guarantee the continuance of rights which such denomination or its section had. In other words, if the denomination never had the right to manage the properties endowed in favour of a denominational institution as for instance by reason of the terms on which the endowment was created it cannot be heard to say that it 1964 has acquired the said rights as a result of Art. 26(c) and
(d), and that the practice and custom prevailing in that behalf which obviously is consistent with the terms of the endowment should be ignored or treated as invalid and the administration and management should now be given to the denomination. Such a claim is plainly inconsistent with the provisions of Art. 26. If the right to administer the properties never vested in the denomination or had been validly surrendered by it or has otherwise been effectively and irretrievably lost to it Art. 26 cannot be successfully invoked.
1866. Next comes Gedela Satchidananda Murthy (supra) where the Court reproduced the quotation from Madras High Court's judgment in Pidugu Narasimham (supra) in para 16. Further in para 17, the Apex Court held:
"Religious practices vary from State to State, region to region, place to place and sect to sect. When the legislature makes a legislation, the existing state of affairs and the basis on which such legislation has been made would be presumed to have been known to it. Whereas the property for construction of a samadhi or tomb by itself may not amount to a permanent dedication involving public character of such institution, a distinction must be borne in mind about a tomb constructed on the samadhi of an ordinary man and a saintly person. In a case falling within the latter category, the answer to the question, in our opinion, should be rendered in the affirmative."
1867. In Raja Muttu Ramalinga Setupati Vs. Perianayagum Pillai, 1 IA 209 (p. 234) the Privy Council held:
"The important principle to be observed by Courts in dealing 1965 with constitution and rules of religious brotherhoods attached to Hindu Temples is to ascertain, if possible, the special laws and usages governing the particular community whose affairs have become subject of litigation."
1868. It further observed: "The subject of devastanum lands is of a great importance to the happiness of the people, and the attention paid to the interest of the pagodas ........ has been attended with most beneficial consequences to the people in different parts of peninsula" (i.e India). 1869. In Sarangadeva Periya Matam v. Ramaswami Goundar (supra), relying on Pramatha Nath Mullick v. Pradhyumna Kumar Mullick (supra), Counsel for the Respondents therein submitted that a math, like an idol, has a juridical status with the power of suing and being sued. Hon'ble Supreme Court accepted this contention and held:
"Like an idol, the math is a juristic person having the power of acquiring, owning and possessing properties and having the capacity of suing and being sued. Being an ideal person, it must of necessity act in relation to its temporal affairs through human agency." See Babajirao v. Luxmandas, (1904) ILR 28 Bom 215 (223). It may acquire property by prescription and may likewise lose property by adverse possession."
1870. In Kamaraju Venkata Krishna Rao (supra), the controversy before the Hon'ble Apex Court was whether a tank can be considered as a charitable institution under Section 2 (E) of the Andhra Inams (Abolition and Conversion into Ryotwari Act) 1956. Hon'ble Court quoted from a DB judgment of the Mysore High Court, V. Mariyappa Vs. B.K. Puttaramayya, ILR (1957) Mys 291:AIR 1958 Mys 93:
1966"The maintenance of Sadavartas, tanks, seats of learning and homes for the disabled or the destitute and similar institutions is recognized by and well known to Hindu Law, and when maintained as public institutions they must be taken to have a legal personality as a Matha or the deity in a temple has, and the persons in charge of the Management would occupy a position of trust."
1871. There Court also held, when maintained as public institutions, then, not only temples and mutts, but also sadavartas and tanks etc take up a legal personality. An excerpt:
"It has been held that though Mutts and temples are the most common forms of Hindu religious institutions, dedication for religious or charitable purposes need not necessarily take one of these forms and that the maintenance of Sadavartas, tanks, seats of learning and homes for the disabled or the destitutes and similar institutions are recognised by and well known to Hindu Law and when maintained as public institutions, they must be taken to have a legal personality as a Matha or the deity in a temple has, and the persons in charge of the management would occupy a position of trust."
1872. In the above holding, there is a presumption that Mutts and temples, when maintained as public institutions, take up a legal personality - and this proposition is extended to the case of sadavartas and tanks etc. 1873. In Pooranchand Vs. The Idol Shri Radhakrishnaji & another AIR 1979 MP 10, a Division Bench considered and explained meaning of the term "religious endowment" and said that dedication of the property for religious purposes such as establishment and worship of an idol is a religious endowment 1967 and consequently a trust. Regarding the capacity of filing suit by an idol through a next friend, it observed in para 8 of the judgment:
"In our opinion, the proposition, that an idol or deity is a juristic person and can sue as such admits of no doubt, as it has been established by a series of authorities that an idol as a juristic person, can sue through a next friend."
1874. Considering the nature of property dedicated for use as "Dharamchatra", resting place for the travellers and pilgrims, in Thayarammal Vs. Kanakammal (supra), the Court in para 16 of the judgment said:
"16. A religious endowment does not create title in respect of the property dedicated in anybody's favour. A property dedicated for religious or charitable purpose for which the owner of the property or the donor has indicated no administrator or manager becomes res nullius which the learned author in the book (supra) explains as property belonging to nobody. Such a property dedicated for general public use is itself raised to the category of a juristic person. Learned author at p. 35 of his commentary explains how such a property vests in the property itself as a juristic persons. In Manohar Ganesh Tambekar v. Lakhmiram Govindram it is held that:
(ILR p. 263) "The Hindu law, like the roman law and those derived from it, recognises, not only corporate bodies with rights of property vested in the corporation apart from its individual members, but also the juridical persons or subjects called foundations."
(emphasis supplied) 1968 The religious institutions like mutts and other establishments obviously answer to the description of foundations in Roman law. The idea is the same, namely, when property is dedicated for a particular purpose, the property itself upon which the purpose is impressed, is raised to the category of a juristic persons so that the property which is dedicated would vest in the persons so created. And so it has been held in Krishna Singh v. Mathura Ahir that a mutt is under the Hindu law a juristic person in the same manner as a temple where an idol is installed." (emphasis added) 1875. In Sri Iswar Dashabhuja Thakurani & others Vs. Sm. Kanchanbala Dutta & others AIR 1977 Cal. 473, a Single Judge of Calcutta High Court in para 17 and 18 held:
"17. A Hindu deity is a juristic person and has the right to sue or be sued. There are preponderance of decisions to the effect that a shebait has a right on his own to institute and proceed with the suit on behalf of the deities making other shebaits as parties to the suit. On the death of Hari Mohan Roy, Rash Behari Roy became one of the shebaits jointly with other defendants. So on his own right Rash Behari Roy can, not only bring a suit but also proceed with the suit on behalf of the plaintiff deities as a prospective shebait in case of family endowment even though not appointed by Court as guardian, can maintain a suit on behalf of the deity. This is more so when a prospective shebait brings a suit on behalf of the idol making all other shebaits as parties to the suit. (AIR 1966 Pat 235, Ram Ratanlal v. Kashinath Tewari). In a case reported in AIR 1931 Cal 776 (Girih Chandra v. Upendra 1969 Nath) it has been held that a person interested in a private trust as a member of the family and who has further the prospect of holding the office of shebait, can maintain a suit challenging the alienation of debutter properties by a shebait. A future shebait can maintain a suit to have it declared that alienation made by a shebait is unauthorised and does not affect the deity.
18. Rash Behari Roy is not only a shebait but also a member of the settlor's family. In Nirmal Chandra v. Jyoti Prosad reported in 45 Cal WN 709: (AIR 1941 Cal 562) it has been held that a shebait as a party interested in the endowment can bring an action. In the first place a co-
shebait can bring a suit on the principle that a suit on behalf of the deity can be brought by some of the co- shebaits that the rest are unwilling to join the plaintiff or have done acts precluding them from doing so. In the second place it can be justified on the ground that the deity can sue through a next friend who has no interest adverse to it and it is immaterial that such next friend happens to be one of the shebaits.
"In respect of a debutter in this country a founder or his heirs may invoke the assistance of a judicial Tribunal for the proper administration thereof on the allegation that the Trusts are not properly performed."
1876. In Profulla Chorone Requitte Vs. Satya Choron Requitte AIR 1979 SC 1682 the Court said :
"Property dedicated to an idol vests in it in an ideal sense only; ex necessitas, the possession and management has to be entrusted to some human agent. Such an agent of the idol is known as Shebait in Northern India. The legal 1970 character of a Shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorised representative entitled to deal with all its temporal affairs and to manage its property."
1877. Hon'ble Bose J in State of West Bengal Vs. Anwar Ali Sarkar (supra), about development of Hindu Law, observed in para 84:
"Much of the existing Hindu law has grown up in that way from instance to instance, the threads being gathered now from the rishis, now from custom, now from tradition. In the same way, the laws of liberty, of freedom and of protection under the Constitution will also slowly assume recognisable shape as decision is added to decision. They cannot, in my judgment, be enunciated in static form by hidebound rules and arbitrarily applied standards or tests." (para 84) 1878. It was also observed that dedication in Hindu Law do not require acceptance of property dedicated for a religious or a public purpose.
1879. Learned counsels for the Muslim parties, however, submit that in view of plethora of legal authorities it is now beyond doubt that a Hindu idol, duly consecrated is a legal person, but they further submit that same thing would not apply to a place which has no such definite concept. The question raised obviously is not only interesting but important and has far reaching consequences. It has to be considered very cautiously and carefully.
1880. So the question now is, whether a place can be a Deity or not. Some of the authorities already referred, in our view, 1971 answer this question. In Ram Jankijee Deities & Ors. (supra) the Apex Court in para 14 of the judgment referred to Padam Puran and observed that a Swayambhu or self-revealed image is a product of nature and it is Anadi or without any beginning and the worshippers simply discover its existence and it do not require consecration or Pratistha.
1881. Sri R.L.Verma, learned counsel for the defendant no.3 however submitted that a Swayambhu Deity is only one i.e. the Salgram Shila which depicts Lord Narayana i.e. Vishnu Bhagwan and nonelse. He could not dispute that Hindu worship several places like Kedarnath (State of Uttarakhand); Vishnupad temple at Gaya; rivers like "Sangam" at Allahabad (U.P.); natural formation of snow as "Linga" at Amarnath (State of Jammu and Kashmir); Fire Hills (Jawala Ji) in Himachal Pradesh;m Goverdhan (Mathura (U.P.); etc. as Swayambhu Deity.
1882. How and what manner the people should believe a place or an image having supreme power to cherish the wishes of worshipper has to be considered from the belief of the worshippers and cannot be placed in a straight jacket formula. In para 15 of the judgment in Ram Jankijee Deities & Ors. (supra), the Apex Court said that the question must be decided with reference to the view of the class of people who take part in the worship. If they believe in its religious efficacy, in the sense that by such worship they are making themselves the object of the bounty of some super-human power, it must be regarded as "religious worship". It further says that if the public or that section of the public who go for worship consider that there is a divine presence in a particular place and that by offering worship there, they are likely to be recipients of the blessings of 1972 God, it has the essential features of a temple. In para 16 of the judgment the Apex Court further observed that if the people believe in the temples' religious efficacy no other requirement exists as regards other aspects. The Court observed that it is not a particular image which is a juridical person but it is a particular bent of mind which consecrate the image. There is no apparent reason to deny the status of Deity to a place which is worshipped by a large section of people as sacred and pious being the birthplace or the place of manifestation which normally is the term used when according to Hindu belief the Lord of Universe takes natural form i.e. human being or otherwise for the benefit of the people at large. It is in this context ten incarnations of Lord Vishnu are treated.
1883. The above discussion and the authorities show the concept of idol, Deity, religious endowment, their legal status, manner in which they are worshipped as also the concept of temple etc., as it is written, preached and practised by Hindus as per their ancient scriptures, and also as considered and simplified by various Courts from time to time. This is how plethora of authorities are there, some of which, on various aspects, we have referred hereinabove. Various terms like "idol", "deity", "temples", "Math", "religious endowments" etc., though in one or the other manner have interconnection and sometimes integrally woven also but still they have different context, concept, meaning etc. altogether. Hindu law comprehends various notions of all the above concepts and much more. There are several shades and nuances of these terms. They are not mere terms of art but are living concept and a huge mass actually live and virtually has merged and absorbed itself therein. These terms are their identity, perception, source 1973 of life, inspiration and zeal to live and what not. It is really very difficult to concise them in a few words or norms. While discussing Issue No. 17 (Suit-3), we have already dealt with the terms "religion" and "Math" but to some extent, it is true that confining the word "religion" in a definition is one of the most arduous and complicated task.
1884. One of the basic thing in religious experience is a unique feeling, a solemn reverend attitude. It denotes the insight conviction of human being that there is something entirely transcending everything human. Core of the religion is "belief", and, the manner of expressing that belief, i.e. overt performances, sometimes called "acts of worship". The acts of worship do vary. This variance is denoted sometimes in terms of different religions or faith like Hindu, Muslim, Christian etc. and sometimes different sects within the same group of religion. 1885. There is no certainty in the ancient Hindu scriptures as to whether the concept of worship in the religion commenced with the natural forces, like sun, air, water, sky etc. or it was contemporary with the image worship. One of the set of scholars believe that there was no idol worship in Vedic days, but there is another set of scholars who have their own reservations about the said opinion. We have referred to certain Brahmin literature which contain references of idols and temples even in Vedic days. This, however, is a tentative opinion and need not be taken as a final adjudication. We leave it for further research by scholars and geniuses to go in further details and find out correct version. For the present case, we do not find that this aspect will make any impact on issues concerned. For our purpose suffice it to hold that image (idol) worship exist since before Christ and sufficient evidence exist therefor.
19741886. We do not find any parallel to the dispute before us where a particular 'Place' is claimed to be a deity, a juridical personality in the shape of an undefined idol, by itself a temple, for the reason of belief of Hindu public that Lord Rama, incarnation of Lord Vishnu, was born thereat and this divine manifestation of the Supreme Lord at a particular place make it sacred and due to belief of Hindu people that God resides there and the 'Place' possesses all such divine and supreme power so as to cherish the wishes of the people and salvation to those who come to worship and Darshan of such place. It is stressed that this itself is sufficient to make the 'Place' a deity and satisfy the requirement of the legal personality. The proposition appears to be quite simple but if we put on tests with the precedents, religious and legal, it become difficult to be answered simplicitor.
1887. What would be the meaning of word "Place" and what shall be its extent? Whether it would be a small place which normally is required for birth of a human being or whether it will cover an area of the entire room, house, locality, city or sometimes one can say even more than that. We know that Hindus worship rivers and lakes like, Ganga, Yamuna, Narmada, Mansarovar etc. They are very sacred and pious. At several places a number of temples etc. on the bank or near the said rivers have been constructed. The very origin of such sacred rivers is also a place of worship for Hindus like, Gangotri, Yamunotri (State of Uttaranchal) and Amarkantak (for river Narmada). Can it be said that the entire length these rivers cover would constitute and satisfy the requirement of a "juristic personality". It is not out of place that at several places, the temples of Ganga, Narmada, Yamuna etc. have been 1975 constructed and they are religious endowments in their own rights, enjoy all such legal rights and obligations etc. as are available to such Endowments. Similarly certain hills or mountain or hilly terrains as such are treated to be the places of worship like, Kailash, Gobardhan, Kamathgiri etc. 1888. When asked theses questions, learned counsels for Hindu parties also felt difficult to reply. Sri M.M.Pandey submitted that in the present dispute, it is the belief of the Hindu people that the fort of King Dashrath situated at Ayodhya included the part of the building wherein Lord Rama was born according to Hindu belief and the disputed area covered that house. It is believed that it is this place which is so pious and sacred for Hindu people being the birthplace of Lord Rama and, therefore, in this particular case, it is not necessary to go into larger question since it is not the claim of the Hindu parties that the entire city of Ayodhya or the entire locality is birthplace of Lord Rama. He was born at Ayodhya is a well known fact. In Ayodhya, it is the disputed place where the Lord of Lords was manifested in the form of natural person and, therefore, it is believed to be the birthplace of Lord Rama by Hindus for time immemorial and they visit it to worship and Darshan. This satisfy the requirement of a "deity". He submits that "deity" in the name of birthplace of Lord Rama is a legal person considering the concept of legal personality of Hindu deity as discussed above. It is evident that it is a place where the public visit it as a matter of right, offer Darshan, Pooja etc. continuously and from time immemorial.
1889. The submission is not wholly without substance. The relevant evidence need be analyzed in the light of the principles in general which discern from the discussions above, which in 1976 brief may be culled out as follows.
1890. There exist a Supreme Being which controls everything and fulfills the wishes and salvation to the human beings. Hindus believe that the Supreme Being manifest himself in human form (incarnation) with all the powers of Supreme Being subject to self imposed human limitations. This reincarnation or manifestation is known as "Swayambhu". The place of reincarnation is treated sacred. This kind of belief that the place become sacred which relates to birth or some other activities of a Holy sole is common in other religions also like, Mekka in Islam, Bethlehem/Jerusalem in Christianity. 1891. The concept of deity is deeply embedded amongst Hindus. The Hindu Dharma has elevated the concept of sacredness into an object of divinity fit for worship. However, this is only symbolic. A Hindu does not worship the idol or the material body but it is the eternal spirit of the deity and the image is a mere symbol. The incarnation of Mantras peculiar to a particular deity causes manifestation of a deity. The idols or images which are man made are consecrated with the spirit of Supreme Being through Vedic rights. The process is known as "Pran Pratistha". The Supreme Being is bodyless, shapeless and, therefore, through the concept of images it is visualized and worshipped.
1892. The deity, i.e., the consecrated image or the Swayambhu deity has a juridical status. Law recognises its power of suing and being sued. This power can be exercised by the person who is entrusted with its care and management normally called "Shebait". In the context of Shebait the deity is treated to be an "infant heir" or "with the status of a minor"
since it cannot act on its own.1977
1893. The deity is a class by himself conceived of a living being and is treated like a master of the house. The property dedicated to a deity belongs to it and not to Shebait though is managed by Shebait as a trustee or its manager who has no otherwise right into property except that it can be managed for the benefit of the deity.
1894. A temple is the house of the deity. Even if the image is broken or otherwise get damaged, the Supreme Being continued to exist and by replacement of the image that continuity is maintained symbolically. A temple and deity is res extra commercium. Presence of idol is not decisive to ascertain the status of a temple.
1895. The worshippers are the beneficiaries though in a spiritual sense.
1896. If the public goes for worship considering that there is a divine presence and offer worship thereat believing that they are likely to be the recipient of the bounty of God then it satisfy the test of a temple. Installation of an idol or the mode of worship are not the relevant and conclusive test. 1897. It leaves no doubt in our mind that according to the well recognised and accepted concepts of Hindu Law in regard to deity and idol, it cannot be disputed now that an idol is a juridical person, can sue and be sued, can acquire property and deal with it in a manner it likes though obviously this user is through a Shebait or the person who takes care of the idol since it cannot act on its own not being a natural person. 1898. Besides, to constitute an idol, a deity, the concept of Pran Pratishtha and that too in a particular manner is not always conclusive and is not the only test. In the case of a "Swayambhu deity", the Shastrik procedure of Pran Pratishtha as such is not at 1978 all required. A deity can be in the form of an idol or even in natural form like stone, wood, earth, river, mountain etc. The only requirement in our view would be that in case of place, it must be ascertainable as to what place is believed to be sacred and pious by the worshippers.
1899. The pivotal requirement is that the Hindus must believe the existence of supreme power therein, must be worshipping it with the belief of getting of attainment and fulfillment of wishes due to the divine powers existing thereat and this belief must have continued for time immemorial and may be in the form of a continued custom, tradition etc. 1900. The learned counsels appearing for various Hindu parties unanimously contended that the place in dispute has always been believed to be the birthplace of Lord Rama where Lord Vishnu manifested himself in human form as incarnation and, therefore, it is a place which possess the supreme and divine powers capable of fulfilling of wishes of the worshippers of mere Darshan thereof and visit the place. They submit that since the place being the birthplace of Lord Rama is most pious and with full of divinities to Hindus, this has always been visited by Hindus for Darshan and worship as such, hence the requirement of any idol etc. thereat of Lord Rama cannot be insisted upon. Mere placement of an idol thereat is nothing but a symbolic act of Hindus to provide more concentration for worship etc. but the absence of an idol shall not destroy the status of deity to the "Place" being divine and holy to Hindus. The Place is a deity and it does not require observance of Shastrik procedure of 'Pran Pratishtha' since this divinity of 'Place' makes it a "Swayambhu deity" capable of worship by the believers. This status is non destructible, permanent, and can 1979 neither be altered nor otherwise be damaged or diminished or extinguished by an act of human being. It is a perennial and continued status of the Place concerned.
1901. The evidence to show that the Hindu people used to visit the fort of Lord Rama and its nearby area believing it to be the birthplace of Lord Rama find mention with number of books of authorities, some of which we have already discussed in the course of discussing issues pertaining to "date of construction"
etc. Much more we shall discuss while considering issue pertaining to birth place, existence of temple etc. But here some evidence necessary for the issues in question has to be seen. 1902. Goswami Tulsi Das in his "Ramcharitmanas" has referred the observance of a grand festival on the day of birth of Lord Rama at Ayodhya. The worship by Hindus in the place called fort of Lord Rama has been referred in the Travellers Account of William Finch.
1903. Tieffinthaler has specifically observed the manner in which the Hindu people used to worship at the place in dispute, i.e., by laying prostrate and making 'Parikrama' (circumambulation) around the building. This is a unique feature of this case. At the time of Tieffinthaler admittedly the disputed building had come into existence and was standing thereat. It was known as a mosque having been built by a muslim ruler. Tieffinthaler has termed it as "a muslim temple with triple domes". However, there existed a Bedi, i.e., the cradle for which the Hindus' believe that there was a house where Lord Vishnu manifested and reincarnated in the form of Ramlala. Then he mentioned, "however, there still exists some superstitious cult in some place or other. For example, in the place where the native house of Ram existed, they go around 3 times and prostrate on 1980 the floor." After about hundred years by which time the premises in dispute was divided by an iron grilled wall with an indication that the muslims may worship in the inner courtyard and the Hindus may continue to worship in the outer courtyard, in actuality the Hindus continue with their practice of entering the inner courtyard and worshipping thereat in one or the other manner. This is evident from some documents which we are discussing hereinbelow. There is no evidence on record to show that from 1856 to 1949, at any point of time there was a restriction effected in such a manner that only the people of one faith would enter the inner courtyard and not all. It is the admitted case of muslims and their several witnesses had also admitted that till 22nd December, 1949 the doors of the iron grilled dividing wall were never locked. There is nothing on record to show that by posting a guard or otherwise the entry of Hindus was restricted in the inner courtyard. Even with respect to the contention of offering of Namaz, the evidence, which we will be discussing later on, will show that from 1855 till 1934 atleast there is no evidence whatsoever that Namaz was actually offered in the inner courtyard of the disputed site. So far as the outer courtyard is concerned, it is virtually admitted by the muslim parties that there existed atleast three non Islamic structures which were visited by Hindus and they also offered worship thereat. Tieffinthaler has specifically referred to the place in dispute observing the visit of Hindus thereat. Various gazetteers, survey reports etc. which we have referred earlier while discussing the issues pertaining to date of construction also are similarly worded.
1904. Let us proceed to ponder over some other evidence. One of the document is an application dated 30.11.1858, Exhibit 1981 20 (Suit-1), submitted by Syed Mohammad, claiming himself to be Khatib of Janamsthan mosque, i.e., the disputed building. It says as under:
بمقام جنم استھان کا صدہا برس کے نشان پڑا رہتا تھا و اہل ہنود پوجا کرتے تھے ^^eqd+ke tue LFkku dk lngk cjl ds fu'kku iM+k jgrk Fkk o vgys gquwn iwtk djrs Fks^^ (Hindi Transliteration by the Parties) "Previously the symbol of Janam had been there for hundreds of years and Hindus did puja." (E.T.C) 1905. This document refer the above creation in the premises inside the dividing wall. The existence of divided premises is clearly mentioned and one Chabutara in outer Courtyard was already there. The context shows that it talks of creation of a Chabutra under/near the dome structure and open land in its front. This document is admitted to plaintiffs (Suit-4) also. This is the oldest individual and private document which throws light on the spot situation as prevailed in November 1858 and prior thereto of the disputed site and building. There is nothing to contradict it. It is thus clear that even the inner courtyard had some Hindu religious signs/symbols therein and it used to be worshipped by Hindus for last several hundreds years. 1906. As already said, P.Carnegy in his report published in 1870 has observed that both worship in the disputed building. This also fortify the fact that Hindus not only used to go inside but were also worshipping in the disputed premises. 1907. The dispute pertaining to this place amongst the two communities is centuries old. Record, prior to 1860 AD, atleast fortify, continuance of such dispute. In fact, it could not have been disputed. Several witnesses of the plaintiffs (Suit-4) had 1982 admitted that the Hindus used to come to the disputed place for worship believing it the birthplace of Lord Rama. 1908. Record of Suit-1885 shows that the defendant no. 2 therein, i.e., Mohd. Asghar, who contested the said suit in his capacity as Mutawalli of the disputed building (alleged waqf), in his own written statement admitted that the Chabutara constructed in the outer courtyard on south east side of the disputed building used to be attended by Hindus for worshipping, believing it to be the birthplace of Lord Rama. No doubt, he also pleaded simultaneously that the said construction was unauthorised and impermissible but the fact remains that existence of Chabutara, according to the pleadings, had continued at least since about 1855 and this position remain undisturbed till 6th December, 1992. The premises of Mosque, as depicted by letters ABCD in Suit-4, thus had a structure, non- Islamic which has been worshipped by Hindus for the last atleast one and half century.
1909. A place if identified by a name given to the deity by its worshippers/believers and if it can be shown that it relates to a divine or otherwise important phenomena related with religious matters making it a pious and important religious place, it can be held 'deity' and thereby satisfy the requirement of being a 'juridical person'. Whether such a place reflected by the known name of the deity is smaller one or larger one, or, what is its extent, is a different matter but a deity can be known by its name which its followers/worshippers have given to it. In the present case the plaintiff no. 2 (Suit-5) is known as "Asthan Sri Rama Janam Bhumi, Ayodhya". The Hindu believers and worshippers who go and worship the said place identify it by the name of Lord Rama's birthplace and this identity ascertain and 1983 admits no doubt in the mind of those who belief, follow and worship. That being so, we find no reason in denying the status of deity to the said place and the consequential juridical personality upon it. It cannot be disputed that property can be dedicated in the name of the plaintiff no. 2 which can be utilized for the benefit of the said deity. This of course is subject to the issues decided in favour of Hindu parties which pertain to the site in dispute whether is or believed to be the birthplace of Lord Ram for time immemorial and is being worshipped accordingly. 1910. Whether the idol or deity, worshipped by Hindus, was consecrated or not, has to be seen from the point of view and belief of those who worship the idol and not others who had no such belief. If an idol is faithfully recognised by all those who believe the idol of a particular deity, it is a deity. In the present case idol of Lord Rama, and its worship as such satisfy the requirement of a validly consecrated deity. No further inquiry need be gone into. We agree with the views expressed by the Division Bench in Gokul Nath Ji Maharaj (supra) that the question whether a particular idol is or is not duly consecrated must depend upon the religious faith and belief of its followers. We are also fortified in taking the above view from the Apex Court's decision in Ram Jankijee Deities (supra) where in para 15 it has observed, while quoting and approving the two decisions of Madras High Court, that the test is not whether it conforms to any particular school of Agama Shastras. The question must be decided with reference to the view of the class of people who take part in the worship. If they believe in its religious efficacy, in the sense that by such worship they are making themselves the object of the bounty of some super-
human power, it fulfill the requirement. If the public or that 1984 section of the public who go for worship consider that there is a divine presence in a particular place and that by offering worship thereat they are likely to be the recipients of the blessings of God, it satisfy the requirement of a deity. In fact the Apex Court in para 16 of the judgment in Ram Jankijee Deities (supra) went to observe that the people, if believe in the religious efficacy, no other requirement exists as regards other areas. It is not a particular image which is a juridical person but it is a particular bent of mind which consecrate the image. 1911. In Shiromani Gurdwara Prabandhak Committee, Amritsar Vs. Som Nath Dass (supra) the Court virtually set out easier guidelines as to how an untangible image or institution or otherwise can be decided whether a juristic person or not particularly in religious matters. The Court observed that the very words "juristic person" cannot get recognition of an entity to be in law a person which otherwise it is not. In other words it is not an individual natural person but an artificially created person which is to be recognised to be in law as such. When a person is ordinarily understood to be a natural person, it only means a human person. Essentially every human person is a person but in the history of the world the concept of different notions had different times. In sub-countries even human beings were not treated person in law. Under the Ancient Roman Law a slave was not a person. He had no right to a family. He was treated like an animal or chattel. In French colonies also, before slavery was abolished, the slaves were not treated to be legal persons. They were later given recognition as legal persons. The recognition was given later on through an statute. In United States also African-Americans had no legal rights though they were not treated as chattel. The Court also quoted the following 1985 passage from Roscoe Pounde's Jurisprudence, Part, IV, 1959 Edition, page 192-93:
"In civilized lands even in the modern world it has happened that all human beings were not legal persons. In Roman law down to the constitution of Antoninus Pius the slave was not a person. 'He enjoyed neither rights of family nor rights of patrimony. He was a thing, and as such like animals, could be the object of rights of property.' ... In the French colonies, before slavery was there abolished, slaves were 'put in the class of legal persons by the statute of April 23, 1833' and obtained a 'somewhat extended juridical capacity' by a statute of 1845. In the United States down to the Civil War, the free Negroes in many of the States were free human beings with no legal rights."
1912. The evolutionary development of a socio-political- scientific system made it necessary to consider certain non- human beings as person which were termed as legal person or juristic person etc. Having said so, the Apex Court in above case further observed that a juristic person like any other natural person is in law also conferred with rights and obligations and is dealt with in accordance with law. The entity acts like a natural person but only through a designated person, whose acts are processed within the ambit of law. When an idol was recognised as a juristic person it was known that by itself it cannot act. Like the case of a minor where a guardian has been appointed, so in the case of an idol, a Shebait or manager is appointed to act on its behalf. In that sense, relation between an idol and Shebait is akin to that of a minor and a guardian. As a minor cannot express himself, so the idol, but like a guardian, the Shebait and manager have limitations under which they have to act. The 1986 Court observed that an idol is a juristic person because it is adored after its consecration in a temple. The offerings are made to an idol. The followers recognised an idol to be symbol of God. Without the idol the temple is only a building or mortar, cement and bricks which had no sacredness or sanctity for adoration.
1913. Let us apply these tests in respect to the plaintiffs 1 and 2 in the case in hand. Sri Ramjanambhumi, the place in dispute is visited by Hindus under the faith and belief that Lord of Universe Sri Vishnu appeared in his Chaturbhuj Roop before Queen Kaushalya one of the wife of Kind Dashratha at a particular date and time mentioned in Balmiki Ramayan as well as Ramcharitmanas of Goswami Tulsi Das. On the prayer made by Kaushalyaji Sri Vishnu took the form of Sri Ramlala and manifested himself in human form. The place, therefore, bear the spirit and power of Lord of Lords and it is believed that by visiting the place having its Dashan, i.e., adoration and worship one will get all happiness and fulfilment of his wishes. It will confer upon him all merits as well as salvation. The visit to birthplace itself has been said to be sufficient to confer all the merits and salvation upon the believer. It is with this faith and belief it is said that the Hindus are visiting the birthplace of Lord Rama at Ayodhya since time immemorial and despite of several adverse situation the belief and worship has continued unrelented.
1914. It is well settled that faith and belief cannot be judged through any juridical scrutiny, its a fact accomplished and accepted by its followers. In fact this faith necessitated the creation of a unique to be recognised as a juristic person. The juristic person, in view of the above discussion, it is evidence, 1987 cannot be roped in a defined circle. With the changing thoughts, changing needs of the society fresh juristic personalties were/are created from time to time. In the context of Guru Granth Sahib whether it is a juristic person or not an argument was raised though an idol can be recognised to be a juristic person but not a temple and on the same party neither a Gurudwara can be treated to be a juristic person nor Guru Granth Sahib which is only a sacred book. Repelling this argument the Apex Court in Shiromani Gurdwara Prabandhak Committee, Amritsar Vs. Som Nath Dass (supra) said that Gurudwara or Guru Granth Sahib cannot be equated with an idol. Sikhism does not believe in worshipping any idol but that does not mean that Guru Granth Sahib in order to treat to be a juristic person should be equated with an idol. When belief and faith of two different religions are different there is no question of equating one with the other. If Guru Granth Sahib by itself could stand the test of its being declared as such, it can be declared to be so. The Court peep into the fundamentals of Sikh religion though as a matter of caution observed that to comprehend any religion fully may indeed be beyond the comprehension of anyone and also beyond any judicial scrutiny for it has its own limitations. But then it is added with that silver lining could easily be picked up from the tenets and dictates of the concerned religion. In the Sikh religion the Guru is revered as the highest reverential person. The first of such most revered Guru was Guru Nanak Dev followed by the succeeding Gurus and the 10th being the last living Guru Gobind Singh Ji. It is believed that Adi Granth or Guru Granth Sahib was compiled by the fifth Guru Arjun and it is this book that is worshipped in all the Gurudwaras. Besides being read, people go down on their knees to make reverential obeisance and place 1988 their offerings of cash and kind on it, as it is treated and equated to a living Guru. The composition of Gurus were always considered sacred by their followers. Guru Nanak said that in his hymns the true Guru manifested himself, because they were composed at His orders and heard by Him. The fourth Guru, Ram Das said, "look upon the words of the true Gurus as the supreme truth, for God and the Creator hath made him utter the words." When Guru Arjun formally installed the Granth in the Hari Mandir, he ordered his followers to treat it with the same reverence as they treated their Gurus. By the time of Guru Gobind Singh, copies of the Granth had been installed in most gurdwaras. He asked his followers to turn to the Granth for guidance and look upon it as the symbolic representation of the ten Gurus. The Granth Sahib is the central object of worship in all gurdwaras. It is with this faith that it is worshipped like a living Guru. This faith and conviction results, when installed in a Gurudwara to turn in a sacred place of worship. Sacredness of Gurudwara is only because of placement of Guru Grath Sahib in it. It also held that a restrictive meaning to the words juristic person ought not to be given otherwise it would erase the very jurisprudence which gave birth to it.
1915. Applying all these observations to the two plaintiffs we find no hesitation to observe that every condition or ingredient is fully satisfied so as to confer legal personality upon the two. In respect to the plaintiff no. 1 the defendants, pro- mosque parties, have no dispute that an idol duly consecrated would constitute a legal person and, therefore, their only objection is that the idol in question being not consecrated in accordance with the Shastrik laws is not a deity constituting a legal person. With respect to the plaintiff no. 2 their objection is 1989 much stronger and virtually travels on the same causes as were argued in Shiromani Gurdwara Prabandhak Committee, Amritsar Vs. Som Nath Dass (supra) to outclass Guru Granth Sahib from the status of juristic person. We have already observed much with respect to the plaintiff no. 1 which in our view suffice to constitute it a legal person capable of maintaining a suit through a Shebait or a next friend as the case may be. The procedure of filing the suit we shall discuss later on in detail. So far as the place is concerned, it is almost admitted by most of the witnesses of pro-mosque parties, i.e., of plaintiff (Suit-4) that Hindus regularly visit Ayodhya for worshipping the birthplace of Lord Rama and several fairs are also held thereat periodically wherein a very large number of people across the country and even abroad come and participate. It is also admitted by some of the pro-mosque parties witnesses that the disputed place used to be visited by Hindus believing it to be the birthplace of Lord Rama. The manner of worship and Darshan has been explained by the witnesses produced by Nirmohi Akhara as well as the plaintiff (Suit-5) in one or the other ways. It is true that most of the part of the evidence of most of the witnesses is either irrelevant hence inadmissible or otherwise is not creditworthy which we have pointed out or shall be referring later as the case may be but that does not mean that the entire statement of a witness for this reason can be rejected. It is always permissible to a Court to take out the part of the statement of a witness which is believable and also sometimes when the statement amounts to an admission on behalf of party who has produced that witness, i.e., the part of the evidence of a witness which is against the party in whose favour the witness is deposing.
1990PW-1, Mohd. Hashim ^^22@23 fnlEcj] 1949 dks ftl LFkku dh dqdhZ gqbZ fgUnw yksx mls jke tUe Hkwfe dgrs Fks vkSj eqlyeku ckcjh efLtn dgrs gsaA** ¼ist 40½ "The Hindus called the place attached on 22nd - 23rd December, 1949, Ram Janam Bhumi and the Muslims call it Babri mosque." (E.T.C.) ^^tSls eDdk eqlyekuksa ds fy, vgfe;r j[krk gS mlh rjg v;ks/;k Hkxoku jke dks ysdj fgUnqvksa ds fy, egRo j[krk gSaA**¼ist 44½ "As Mecca holds importance for Muslims, similarly Ayodhya holds importance for Hindus because of Lord Rama."(E.T.C.) ^^fgUnqLrku ls ckgj ds ns'kksa ds fy, yksx Hkh v;ks/;k esa n'kZu ds fy, vkrs gSaA**¼ist 73½ "People from abroad also come to have darshan at Ayodhya." (E.T.C.) ^^;g Bhd gS fd v;ks/;k fgUnqvksa dk ,d rhFkZ LFky gSA - - - -
-;g Bhd gS fd 22 fnlEcj 1949 ls bl Hkwfe ij tks eqdnek esa eqrnkfo;k gS] fgUnw yksx ns'k&fons'k ls n'kZu djus ds vkrs gSaA** ¼ist 120½ "It is true that Ayodhya is a place of pilgrimage for Hindus. . . . . . . . . . It is true that from 22nd December, 1949, Hindus come from within the country and from abroad to have darshan on this land, which is disputed in litigation."(E.T.C.) ^^fgUnw yksx fgUnqLrku ds gj dksus esa jgrs gSa muds fy, v;ks/;k eqrcfjZd gSA**¼ist 128½ "Hindus live in every corner of Hindustan. Ayodhya is a holy place for them."(E.T.C.) ^^;g Hkh Bhd gS fd bl ifjdzek dks fgUnw yksx dbZ lkS lkyksa ls dj jgs gSa ,d ifjdzek pkSng dks'kh Hkh gSA ,d pkSng dkslh ifjdzek Hkh 1991 gS] ftldks ysus esa ;g ikWap dkslh ifjdzek Hkh 'kkfey gks tkrh gSA ;s nkuksa ifjdzek;sa nks&rhu fnu ds QdZ esa gksrh gSa] - - - - ;g ifjdzek;sa flQZ fgUnw yksx djrs gsa ;g mudh viuh le> gS fd og bls jke tUe Hkwfe le>dj djrs gSa ;k fdlh vkSj otg ls djrs gSA ;g Hkh Bhd gS fd bu ekSdksa ij fgUnw yksx dYiokl Hkh djrs gSa A lk/kw&lUr] o`) vkfn yksx dYiokl djrs gSa ;g R;ksgkj dkfrZd ds eghus esa vkrk gSA** ¼ist 141½ "It is also true that Hindus have been doing this parikrama (circumambulation) for hundreds of years. There is also a parikrama known as 'chaudah kosi'. There is also a 'chaudah kosi' parikrama in doing which this 'paanch kosi' parikrama also gets done. These two parikramas are done on the interval of two- three days. . . . . . . . . . . . Only Hindus do these parikramas. It is their understanding whether they do so considering it to be Ram Janam Bhumi or due to any other reason. It is also true that Hindus also observe 'kalpvaas' on these occasions. Saints, seers, elderly persons and others observe 'kalpvaas'. This festival is celebrated in the month of Kartik." (E.T.C.) PW-2, Haji Mahboob Ahmad ^^;g Bhd gS fd jkepUnz th dh iSnkb'k v;ks/;k dh gSA tc ls ;g rqQku mBk gS rc ls ns'k ds dksus dksus ls fgUnw yksx fookfnr ifjlj dks mudh tUeHkwfe dgrs gSa vkSj iwtrs gSa ojuk mudh lkjh v;ks/;k gSA igys dud Hkou vkSj tUEk LFkku dks mudh tUeHkwfe dgrs FksA ;g crk;k x;k tUe LFkku efLtn ls vyx nwljh txg ij gSA** ¼ist 90½ "It is true that Ram Chandra's birthplace is Ayodhya. From when this turmoil has erupted, the Hindus from nooks and corners of the country call and worship the disputed premises as his Janam Bhumi. Otherwise, the 1992 whole of Ayodhya is theirs. Earlier, they called the Kanak Bhawan and the Janam Sthan as his birth-land. It was told that Janam Sthan is at another place, separately from the mosque." (E.T.C.) ^^iapdkslh ifjdzek iwjs v;ks/;k esa gS - - - - - -vke rkSj ls lfnZ;ksa esa gksrh gSaA ifjdzek ij HkhM+ gksrh gS dkQh yksx ckgj ls vkrs gSa dkQh yksx 'kgj ds gksrs gSaA** ¼ist 101½ "Panchkosi Parikrama covers the whole of Ayodhya. . . . . . . . It usually takes place in winters. The Parikrama attracts a crowd. A number of people come from outside. A number of people hail from the city." (E.T.C.) PW-3, Farooq Ahmad ^^v;ks/;k esa fgUnw esys gksrs gSa tSls fd jkeuoeh] ifjdzek esyk vkSj lkou esyk] bu esyksa ij fgUnw yksx bdV~Bk gksrs gSa ;s yksx efLtn Hkh ns[kus vk;k djrs gSaA bl pcwrjs dks ns[kus dh xjt ls cgqr ls fgUnw vkSj eqfLye yksx lHkh tkrs gSaA ----------- esys ds oDr Hkh gj etgc ds yksx pcwrjk ns[kus vkrs FksA** ¼ist 29½ "Hindu fairs are held at Ayodhya such as Ramnavami, Parikrama Mela and Sawan Mela. Hindus gather in these fairs. They also come over to see the mosque. Many Hindus and Muslims used to come over to see this platform (Chabutara). .......... Even on occasion of the fairs, people of all religions used to come to see the platform (Chabutara)." (E.T.C) PW-4, Mohd. Yaseen ^^og fgUnw yksx vius [;ky ds eqrkfcd bl txg ds n'kZu Hkxoku jke ds tUe LFkku ds rkSj ij djrs gksxsaA** ¼ ist 70 ½ "In my view, the Hindus must have had the darshan of this place as birthplace of Lord Rama."(E.T.C) ^^mudk ;g vdhnk gS fd ;g Jh jke dk tUe LFkku gS ¼vt[kqn dgk fd mudk vdhnk muds lkFk gS½ fgUnw yksx bl txg dks 1993 ikd vkSj ifo= le> dj bldh iwtk djrs gSaA** ¼ ist 71½ "It is their belief that it is the birthplace of Sri Rama (stated on his own that their belief lies with them). The Hindus revere this place as sacred and pious."(E.T.C) PW-7, Hasmat Ulla Asnsari ^^eSa v;ks/;k dk ewy fuoklh gwaA ogkWa ij lkou dk esyk gksrk gS ,d ef.k ioZr dk esyk gksrk gS of'k"B dq.M ij Hkh esyk yxrk gS pSr ds eghus esa jkeuoeh dk esyk Hkh gksrk gSA ;gh dgrs gSa fd jkeuoeh dk esyk Hkxoku jke ds tUe fnu ds miy{; esa euk;k tkrk gSA ml ekSds ij ckgj ds yksx Hkh v;ks/;k esa vkrs gSaA - - - - - ogkWa ifjdzek Hkh gksrh gSaA nks ifjdzek;sa gSa ,d iapdks'kh vkSj ,d pkSng dks'khA txg txg ls fgUnw yksx vkrs gSa vkSj bl ekSds ij ifjdzek;sa Hkh djrs gSaA** ¼ist 73½ "I am a native of Ayodhya. Sawan Mela takes place there and so does Mani Parvat fair. A fair is also organised at Vashishtha Kund. Ram Navami fair too takes place in the month of Chaitra. It is said that Ram Navami fair is organised to commemorate the birth anniversary of Lord Rama. People even from outside come to Ayodhya on that occasion. . . . . . . . . Circumambulation also takes place there. There are two circumambulations, one is called Panchkoshi and the other Chaudahkoshi. Hindus come from different places and also do circumambulations on this occasion." (E.T.C.) PW-8, Abdul Ajij ^^;g Bhd gS fd v;ks/;k fgUnqvksa dh ,d rhFkZLFkyh gSA cgqr nwj&nwj ls fgUnw yksx ogkWa vkrs gSaA** ¼ist 33½ "It is true that Ayodhya is a pilgrimage of Hindus. Hindus come here from far off places." (E.T.C) PW-9, Syed Akhlak Ahmad ^^;g Bhd gS fd v;ks/;k fgUnqvksa dk rhFkZ LFky djds e'kgwj gS 1994 v;ks/;k esa gtkjksa eafnj rks t:j gSaA** ¼ist 3½ "It is true that Ayodhya is famous as pilgrimage of Hindus. There are certainly thousands of temples in Ayodhya." (E.T.C.) ^^eSa lqurk gwWa fd fgUnw gtjkr ;g ;dhnk j[krs gSa fd v;ks/;k mudk tUe LFkku gS v;ks/;k esa Jhjke tUeHkwfe dks oks mudk tUeLFkku ekurs gSaA** ¼ist 42½ "I hear that Hindus have the belief that Ayodhya is his birthplace. They believe Sri Ramjanmbhumi at Ayodhya to be his birthplace." (E.T.C) ^^v;ks/;k esa gj lky pkSngdkslh vkSj iapdkslh ifjdzek,a gksrh gSA ;g Bhd gS fd buesa yk[kksa fgUnw uaxs ikao Hkkx ysrs gSaA LFkkuh; yksx Hkh gksrs gSa vkSj ns'k ds nwljs fgLlksa ls Hkh dkQh yksx vkrs gSaA v;ks/;k esa jkeuoeh dk esyk gksrk gSA yk[kksa esa rhFkZ ;k=h v;ks/;k vkrs gSa vkSj Hkxoku Jh jke dk tUe eukrs gSa vkSj eafnjksa dks Hkh ltk;k tkrk gSA lkou ds eghus esa >wyk esyk Hkh gksrk gSA ;g Hkh ,d cM+k esyk gSA yk[kksa esa fgUnw yksx ckgj ls vkrs gSaA buds vykok Hkh rdjhcu gj jkst gh lk/kkj.k rkSj ij Hkh ckgj ls dkQh fgUnw ;k=h rhFkZ ds fy, vkrs tkrs jgrs gSaA** ¼ist 94½ "'Chaudahkosi' (fourteen kose, one kose being equal to two miles) and 'Panchkosi' (five kose) circumambulations are performed every year in Ayodhya. It is true that lakhs of Hindus participate in them, barefoot. (They) include local people as well as people coming over from other parts of the country.
Ramnavami fair is held at Ayodhya. Lakhs of pilgrims come to Ayodhya and celebrate the birth of Lord Sri Rama and the temples are also decorated. The 'Jhula' fair is also held in the month of Shravana. It is also a big fair. Lakhs of Hindus come from outside. Besides these, usually almost everyday many Hindu travelers keep coming 1995 from outside for pilgrimage." (E.T.C) ^^eSaus lquk gS fd fgUnw yksx bl chp okys fgLlksa dks Hkxoku jke dk tUe LFkku vkSj xHkZx`g ekurs gSaA** ¼ist 130½ "I have heard that the Hindus consider this central part to be the birthplace of Lord Rama & sanctum sanctorum." (E.T.C) PW-12, Ram Shankar Upadhyay "Hkxoku jke dks ge Hkxoku fo".kq dk lk{kkr vorkj ekurs gSA"
(ist&6) "We regard Lord Rama as a manifest incarnation of Lord Vishnu." (E.T.C.) "ysfdu okLrfodrk ;g t:j gS fd vk;ks/;k ,d rhFkZ gSA"
(ist&7) "But it is certainly a reality that Ayodhya is a site of pilgrimage." (E.T.C.) "D;ksafd ge lukruh gSA eSus Hkxoku jke dk n'kZu fd;kA"
(ist&17) "Since I am a Sanatani ( orthodox Hindu), I had a sight of Lord Rama." (E.T.C.) "esjh tkudkjh esa fookfnr LFky vkSj Åij crk;s x;s jke tUe LFkku ds vykok v;ks/;k esa dksbZ vkSj eafnj ;k txg jke tUe Hkwfe ds uke ls ugha gSA" (ist&52) "To my knowledge, except for the disputed site and Rama Janam sthan mentioned above, there is no temple or place in Ayodhya in the name of Ram Janam Bhumi."
(E.T.C.) "Hkxoku jke dk tUe pSr dh jke uoeh dks gqvk Fkk blfy, mudk tUe fnu eukus ds fy, ;g esyk gksrk gSA" (ist&52) "Lord Rama was born on Ramnavami of Chaitra; so, 1996 this fair is held to celebrate his birth anniversary."
(E.T.C.) ";g Bhd gS fd v;ks/;k dk egRo blfy, gS fd ogka e;kZnk iq:"kksRre Jh jke dk tUe gqvk FkkA" (ist&53) "It is correct that Ayodhya holds importance because Maryada Purushottam Sri Rama( Supreme Being Sri Rama epitomizing dignified behaviour) was born there."
(E.T.C.) ";g Bhd gS fd fookfnr LFky eksgYyk jkedksV esa fLFkr Fkk
--------- dksV dk vFkZ fdyk gksrs gSA eksgYys dk uke jkedksV gS mldk 'kCnkFkZ jketh dk fdyk gks ldrk gS ---------- esjs bYe ls rks bl eksgYys dks jkedksV ds uke ls gh tkuk tkrk gSA" (ist&58) "It is correct that the disputed site was situated in Ramkot Mohalla. ........ Kot means fort. The name of the Mohalla is Ramkot. It may literally mean the fort of Ramji ........ To my knowledge, this Mohalla is known only by the name of Ramkot." (E.T.C.) PW-13, Suresh Chandra Misra ^^xzUFkksa ds vk/kkj ij ;g rF; vkrk gS fd Jh jke dk tUe v;ks/;k esa gqvkA** ¼ist 36½ "On the basis of treatises it comes to knowledge that Sri Rama was born in Ayodhya." (E.T.C.) ^^eq>s ;g ftKklk Fkh vkSj ;g tkuus dk iz;kl Hkh fd;k fd Jhjke fdl LFkku ij iSnk gq, FksA yksxksa us eq>s ;g crk;k fd veqd LFkku ij ;kuh fookfnr LFkku ij Jh jke dk tUe gqvk FkkA** ¼ist 146½ "I had a curiosity and also tried to know at which place Sri Rama was born. People told me that Sri Rama was born on a particular place, that is, the disputed site."
(E.T.C.) 1997 ^^iz'u& tks yksx Hkxoku Jhjke dh vkjk/kuk djrs gSa os yksx v;ks/;k dks mudh tUeLFkyh ekurs gSa\ mRrj& ;g Bhd gSA** ¼ist 177½ "Question:- Do those worshipping Lord Sri Rama regard Ayodhya as his birth-place?
Answer:- It is true." (E.T.C.) PW-23, Mohd. Qasim Ansari ^^;g Bhd gS fd f[kyth ,oa yks/kh oa'k dh gqdwer ds nkSjku vkSj mlls igys Hkh cgqr ls lwQh Hkkjro"kZ vk;sA [oktk eksbuqn~nhu fp'rh] fpLr ,d txg gS] ogkWa ds jgus okys FksA ;g 'kk;n lsUV~y ,f'k;k esa gSA** ¼ist 19½ "It is true that many Sufis came to India during the reign of Khilji and Lodhi dynasties and even earlier. Khwaja Moinuddin Chisti was a resident of a place called Chist. It is perhaps in Central Asia."(E.T.C.) ^^iapdkslh ifjdzek lky esa ,d ckj gksrh gS ;g 'kk;n ifjdzek dkfrZd ekg es gksrh gS 'kk;n dkfrZd esys ds vkl ikl gksrh gS ;g dguk lgh gS fd bl ekSds ij v;ks/;k esa Hkkjh esyk yxrk gSA ;g dguk lgh gS fd yk[kksa dh rknkn esa rhFkZ ;k=h n'kZu djus dks vkrs gSaA
- - - - - -yk[kksa yksx iapdkslh ekxZ ij ifjdzek djrs gSaA ;g dguk lgh gS fd tks rhFkZ ;k=h ifjdzek djrs gSa os guqekux<+h] dud Hkou vkSj jketUeHkwfe dk n'kZu Hkh djrs gSaA - - - - - -eSa pkSng dkslh ifjdzek ds ckjs esa Hkh tkurk gwWAA bl pkSng dkslh ifjdzek ekxZ esa v;ks/;k vkSj QStkckn vkrs gSa ;g dguk Hkh lgh gS fd pkSng dkslh ifjdzek Hkh dkfrZd ds ekg esa gksrh gSA ;g dguk Hkh lgh gS fd bl ifjdzek esa Hkh yk[kksa dh la[;k esa rhFkZ ;k=h vkSj HkDrx.k f'kjdr djrs gSaA** ¼ist 34½ "The 'Panchkosi' (distance of five kose, one kose being equal to two miles) circumambulation is performed annually, possibly in the 'Kartika' month, possibly around the Kartika fair. It is true that a very big fair is held at Ayodhya on this occasion. It is true that lakhs of pilgrims 1998 come to have darshan. . . . . . . . . . . . . Lakhs of people perform circumambulation on the 'Panchkosi' path. It is true that such pilgrims, who perform circumambulation, also have darshan of Hanumangarhi, Kanak Bhawan and Ramjanmbhumi . . . . . . . . . . I also know about 'Chaudahkosi' (distance of fourteen kose) circumambulation. Ayodhya and Faizabad fall in this 'Chaudahkosi' circumambulation path. It is also true that the 'Chaudahkosi' circumambulation also commences in the month of 'Kartika'. It is also true that lakhs of pilgrims and devotees participate in this circumambulation as well." (E.T.C) ^^;g Bhd gS fd fgUnw yksx ftls eSa ckcjh efLtn dgrk gwWa mls tUeHkwfe dgrs gSaA** ¼ist 36½ "It is true that what is termed as Babri mosque by me, is called Janmbhumi by Hindus." (E.T.C) ^^;g Bhd gS fd pSr esa Hkh jke uoeh dk esyk gksrk gSA ;g Hkh Bhd gS fd ml esys esa yksx yk[kksa dh la[;k esa vkrs gSa vkSj dkQh HkhM+ HkkM+ gksrh gSA^^ ¼ist 39½ "It is true that the Ramnavami fair is also held during 'Chaitra'. It is also true that lakhs of people come in that fair and a huge gathering takes place." (E.T.C) ^^lkou esyk Hkh v;ks/;k esa cgqr /kwe/kke ls gksrk gSA^^ ¼ist 39½ "Sharavana fair is also held with great pomp and show at Ayodhya." (E.T.C) ^^;g Bhd gS fd bl esys esa tks vkrs gSa] lj;w esa Luku djrs gSa] dud Hkou eafnj] tUeLFkku eafnj vkSj tUeHkwfe dk n'kZu djrs gSaA^^ ¼ist 39½ "It is true that the visitors of this fair, take a holy dip in the Saryu and have darshan of Kanak Bhawan temple, Janmsthan temple and Janmbhumi." (E.T.C) 1999 ^^;g dguk Bhd gS fd mijksDr rhuksa esys eSa viuh ;knnk'r ls ns[krk pyk vk jgk gwaA ;g dguk lgh gS fd ;g rhuksa esys essa yk[kksa dh la[;k esa J)kyq vkrs gSa dqN jsy ls vkrs gSa] dqN cl ls vkrs gSa vkSj dqN viuh xkM+h ls vkrs gSa igys dqN yksx cSyxkM+h vkSj ?kksMks ls Hkh vkrs FksA - - - - - -;g Bhd gS fd tks fookfnr txg gS mls fgUnw yksx tUe Hkwfe dgdj viuk gd trk jgs gSaA - - - - - - -;g dguk Bhd gS fd mijksDr esys ds fnuksa esa fgUnw vkSj eqlyekuksa ds chp HksnHkko [kRe gks tkrk gS vkSj yksx I;kj ls jgrs FksA** ¼ist 39&40½ "It is true that I have seen these three fairs since my memory. It is true that lakhs of devotees visit on occasion of these three fairs, some come by train, some by bus and some by their private vehicles. Earlier some people used to come by bullock-carts and horses as well . . . . . . . . .It is true that by terming the disputed site as Janmbhumi, the Hindus are staking their right over the same . . . . . . . . . It is true that the mutual differences between Hindus and Muslims stood extinguished during the aforesaid fairs and people used to live in harmony." (E.T.C) ^^;g Bhd gS fd v;ks/;k dks fgUnqvksa dk ,d rhFkZ LFky ekuk tkrk gSA^^ ¼ist 41½ "It is true that Ayodhya is considered a pilgrimage of the Hindus." (E.T.C) ^^rhFkZ LFkku igys Hkh Fkk -------- ;g Bhd gS fd fgUnq yksx Hkxoku jke dks viuk nsork ekurs gSaA ;g dguk lgh gS fd fgUnqvksa dk ,slk fo'okl gS fd Hkxoku jke v;ks/;k esa iSnk gq, FksA ;g Hkh dguk Bhd gS fd v;ks/;k esa Hkxoku jke ls lEcfU/kr dbZ dq.M vkSj LFkku gSaA** ¼ist 42½ It was a pilgrimage in past as well ....... It is true that Hindus consider Lord Rama, their God. It is true that it is the belief of Hindus that Lord Rama was born in Ayodhya. It is also true that there are many 'Kundas' and 2000 places related to Lord Rama in Ayodhya." (E.T.C) ^^eSa tkurk gwWa fd Hkxoku jke fgUnqvksa ds vkjk/; nsork gSaA - - -
- - - eSaus ,slk lquk vkSj i<+k gS fd v;ks/;k dbZ ckj iyVh gS ftlds vkt Hkh fu'kku ekStwn gSaA - - - - eSaus ,slk i<+k gS fd v;ks/;k nks rhu ckj iyVh gS ftlds fu'kkukr vkt Hkh ekStwn gSa ftls eSaus ns[kk gSA^^ ¼ist 64½ "I know that Lord Rama is the favoured deity of Hindus. . . . . I have heard and read that Ayodhya has over turned many times traces of which exist even today. . . . . . . . . I have read that Ayodhya has overturned two-three times traces of which are found even today; I have seen them."
(E.T.C.) ^^lj;w unh ds fdukjs ls >qu>qfu;kWa ?kkV rd tks lkeku fn[krk gS og lc mYVk feyrk gS vFkkZr~ dqvkWa Hkh mYVk feyrk gSA** ¼ist 65½ "All things seen from the river bank of Saryu up to Jhunjhuniya Ghat are found to be upside down, that is to say, the well is also found upside down." (E.T.C.) OPW-1, Mahant Ramchandra Das Digambar ^^ftl le; f'k[kj fxjk ml le; f'k[kj ds uhps jkeyyk dh dksbZ ewfrZ ugha Fkh f'k[kj dh uhps dh Hkwfe ij iwtk ikB gksrk FkkA --------- e/; f'k[kj ds uhps izlwfr Hkwfe] tgka ij Hkxoku jke dk tUe gqvk Fkk og LFkku FkkA e/; f'k[kj ds uhps dk tks Hkkx xHkZ x`g ds #i esa Fkk og LFkku rFkk mlds pkjks rjQ ml LFkku dks eSa xHkZx`g dk LFkku ekurk gwWaA rhuksa xqEctksa ds uhps dh Hkwfe rFkk ifjdzek ekxZ dh lEiw.kZ Hkwfe xHkZx`g ds vUrxZr FkhA**¼ist 42½ "When the dome collapsed, there was no idol of Ram Lala beneath it. 'Pooja-Paath' used to be performed on the land beneath the dome. ........ 'Prasuti Bhumi' - the land where Lord Rama was born - was beneath the middle dome. I take the part beneath the middle pillar - which was in the shape of the sanctum sanctorum - as also the