Public endowment vs. private endowment

Dispute about endowment being private or public.

The suit temple, as is asserted by the respondents, came to be registered in the Books of Endowment (Muntakab of Registry of Endowment) recording the name of Gokarnath Tiwari, the father of the appellants as the endower of Wakf (that is the temple) on 16th Aban 1345 Fasli (corresponding to the year 1936 as per the English Calendar). The extract from the Registry of Endowment discloses that the entry had been made as per the order of the Minister, Ecclesiastical Department as contained in File No.60/1 of 1945 Fasli (corresponding to the year 1933) of the Directorate of Endowment. This document also indicated that it had been published in the contemporary Official Gazette.

Evidence in suit for declaration

The oral evidence adduced by the parties are more or less evenly balanced and therefore does not demand any dilation. Apropos Exh.B6, to reiterate, it is per se in a prescribed form and is an extract from File No. 60/2 of the Endowment Department available in 1342 Fasli (year 1933). The entry is of the year 1345 Fasli (year 1936) and has been made as per the order of the Minister, Ecclesiastical Department in the Register of Endowment, maintained by the Director of Endowment, Govt. of Hyderabad. This document discloses that P. Gokarnath Tiwari, the father of the appellants had endowed the suit temple for “Wakf”, i.e. public/charitable purpose, he being shown as the Pujari (Priest) thereof. It is not disputed that this document had been published in the Official Gazette, a copy thereof, as the document endorses, had also been forwarded to the father of the appellants referring to him as the endower of the property. On an overall consideration of the features of this document, it would prima facie appear, if all legal essentialities of procedure in connection therewith had been adhered to, that an endowment had indeed been made by the father of the appellants. Added to this as well, is the rebuttable presumption of validity of official acts which can be permissibly drawn in terms of Section 114(e) of the Indian Evidence Act, 1872.

Procedure for compilation of the Book of Endowments.

In substance these provisions stipulated that the Book of Endowments would be prepared in the office of the Endowment Department and would contain all endowments which are in force or which would be brought into force in future under the relevant rules. It made it to be the duty for every trustee or endower of an endowment to inform in writing with regard to an endowment, in case it was an immoveable property which had not been entered in the “Book of the Endowments”, to the Director of the Endowments concerned. As per Regulation 5, every person had the right to inform the Director of Endowment Department of the Taluq with regard to an endowment which had not been entered in the Book of Endowments and to the Director of Endowments in case the property was situated in Hyderabad. Regulation 6 predicated that on the receipt of every such intimation or any other reliable information in some other way, the Director of Endowment of the Taluq if satisfied prima facie about any property to have been endowed but not entered in the Book of Endowments, would publish a notification in the Tehsil Office and if the property was immovable, to publish it in any prominent place and also at the place where the endower resided, in addition to other places where he thought fit and also have the same published in the Gazette. As per Regulation 7, if no person raised objection within the period mentioned in the notification and if the property was found to be legally endowed, the same would then be registered. In case, however any objection was made within the period specified by any person, who was interested or was concerned with the endowed property in any capacity, the Director of Endowments of the Taluq was required to hold an enquiry as to whether the property had been legally endowed or not and if proved to have been endowed legally, to enter the same in the Book of Endowments, together with intimation to be given to the Director of Endowment Department, Hyderabad Govt. Remedies to the person aggrieved have also been provided. Incidentally, however, these Endowments Regulations are of 1940 AD, i.e. subsequent to the year of entry contained in Exh.B6. On being queried by us, the Assistant Commissioner, Endowment apprised the Court that the same procedure prevailed under the earlier regulations which are in Urdu language and are being presently in the process of getting translated. This position has not been disputed on behalf of the appellants. The exercise as prescribed for registering any endowment, under the aforementioned Regulations clearly accords with the procedure, contemplated in law having regard to the consequence of endowment of a private property for public/charitable purposes.

Presumption of performance of official act.

In view of the above Regulations however, and noticing the persistent stand of the appellants that their father had not endowed the suit premises to render the temple a public temple and that neither he nor they had ever received any notice in connection therewith, we are of the considered opinion, in the backdrop of the series of litigation including the suit filed by the neighbours of the temple premises, that it would be in fitness of things that an opportunity be granted to the parties to adduce all evidence, oral and documentary, at their disposal available to them to finally and conclusively determine as to whether the temple and its premises had been endowed by the father of the appellants, as otherwise evidenced by Exh.B6 or otherwise in accordance with the law and the procedure prescribed therefor for further consequential action, as warranted.

Natural Justice

It is worthwhile to mention that DW5, who exhibited this document, however, expressed his ignorance as to the manner in which the same had been prepared. There is no indication as well that this document had been proved by him with reference to the original records. In cross-examination, this witness has conceded as well that he had no personal knowledge about the application made for registering the suit temple in the Book of Endowments and that he was not aware as to when the “Muntaqab” had been issued. In this view of the matter, the assertion on behalf of the appellants that the Gazette Notification of this document per se in absence of the proof of the procedure of making of this entry as required in law, would not be decisive, cannot be lightly brushed aside. As it is, the presumption of validity of official acts, is essentially rebuttable and can be dislodged by convincing evidence to the contrary.

In the wake of the above and on a consideration of the totality of the facts and circumstances of the case, this appeal is disposed of with a direction to the appellants to file an appropriate representation before the concerned authority under the Act in support of their claim that the temple and its premises are the exclusive private property of theirs and their family and had not been endowed for wakf or charitable/public purposes. This should be done within a period of four weeks herefrom. Needless to say, the authority concerned would issue notice to the Department to file their response and thereafter afford adequate opportunity to both the sides to adduce evidence and decide the issue as to whether the temple and the premises involved are private or public in nature by recording reasons., It is too trite to mention that in undertaking this exercise, the adjudicating authority would take note of all relevant facts and the law applicable. The exercise, as ordered, should be completed within a period of six months from the date of filing of the representation by the appellants. In the attendant facts and circumstances, we direct that the status quo of the property involved, as on date shall be maintained till the adjudication, as directed, is over.

[Source: Vijendra Kumar vs Commissioner A.P. Charitable, decided by SC on 15 December, 2017]

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