AI Structured Summary
Not yet generated for this judgment
Judgment
Prabha Sridevan, J.—The 1st defendant is the appellant. The plaintiffs case is that his father Suppanna Gounder had installed the idol of
Vinayagar for his exclusive worship and for the benefit of his family members in Vilaankuruchi village. The deity was called Ishta Siddi Vinayagar.
The idol was installed and a small temple was built by the said Subbanna Gounder out of his own funds. The public have nothing to do with the
temple. They have had no occasion to participate in the management or worship. There are no indications to show that it is a public temple. On
18.5.1959, the said Suppanna Gounder executed a settlement deed settling some properties for the upkeep of the temple. Subsequently, the
settlement deed was revoked by a registered document dated 27.7.1967. The H.R. & C.E. department began to appoint fit persons to take
charge of the temple and the 2nd defendant (2nd respondent herein) was appointed as the fit person. After Subbanna Gounder''s death it was the
plaintiff who was managing the suit temple and therefore he filed O.A. No.168/ 76 u/s 63 (a) of the H.R. & C.E. Act for a declaration that the suit
temple is not a religious institution as defined under the Act. The Deputy Commissioner dismissed the application on 5.12.1967 on the ground that
the temple is not a private one. Therefore, an appeal was filed to the Commissioner of H.R. & C.E. department in A.P. No. 106/78. The appeal
was dismissed on 31.3.1980. The suit was therefore filed u/s 70of the H.R. & C.E. Act.
The appellant herein as 1st defendant filed a written statement denying the averments in the plaint. According to the written statement, the public
was worshipping at the temple. The settlement deed having been cancelled, no relevance can be placed thereupon to establish the plaintiffs case.
The temple has all the characteristics of the public temple for e.g. Vimaanam, Balipeetam, etc. ''Prasadam'' has been distributed to the children
during festivals. The temple is not a private temple. The suit should be dismissed.
The learned I Additional Subordinate Judge, Coimbatore framed six issues, four documents were marked on the side of the plaintiff and two
witnesses were examined. No document was marked on the side of the defendants one witness was examined on the side of the defendants and
the Commissioner''s report Exs. C1 and C2 were also marked before the Court. The learned Judge on a consideration of the oral and
documentary evidence, decreed the suit, holding that the suit temple is a private one. Against that, the present appeal has been filed. The question
that arises for consideration is, whether the suit temple is a private temple or whether it is a religious institution as defined in the H.R. & C.E. Act.
The learned Additional Government Pleader for the appellant submitted that the Court below had failed to take into account, the features that
are existing in the suit temple which would go to show that it was a public temple. He submitted that the public has been worshipping at this temple
as of right which is an indicator to show the public nature of the temple. It was also submitted on behalf of the appellant that the settlement deed
Ex. Al under which properties were dedicated for the upkeep of the temple was subsequently cancelled by Ex. A2 which would show that the suit
temple was no longer a private temple. The existence of the vimaanam and the Balipeetam were also sure signs of the temple being a public temple.
According to the learned counsel, worship is done only by the public which would not be the case if it was a private temple and the intention of the
respondent was only to grab the temple and misuse the Hundi collection etc.. Two decisions were relied on by the learned counsel: S. Ramaswamy
Naidu and Others Vs. Commissioner, Hindu Religious and Charitable Endowments and Others, and V. Mahadeva Gurukkal Vs. The
Commissioner for the Board of Hindu Religious Endowments,
(a) In S. Ramaswamy Naidu and Others Vs. Commissioner, Hindu Religious and Charitable Endowments and Others, the Division Bench of our
High Court held:
Where it is clear that by long usage and acceptance the public were visiting a temple and performing poojas therein and participating in the
processions and daily poojas, this by itself raises a very strong presumption against the private character of the temple.
The existence of Moolasthanam, Mahamandapam, Prakaram, Idols of chief and other deities, uthasavamoorthis, daily poojas, special poojas and
procession during Navarathiri festival, worship by the local public belonging to different communities are all factors which positively give the
undoubted impression that the temple is a public one.
In that case, claim was made on behalf of the Erumaikara Naicker community that the temple was a private temple. There were several clinching
factors which persuaded this Court to reject this claim. One was the existence of two Hundis in the temple in which liberal public contribution was
received without objection by the members of the community and also the participation of the public as of right without any hindrance by the
persons who claimed exclusive right and privilege to the temple. In addition, there was the existence of Moolasthanam, Mahamandapam,
Prakaaram etc. all of which gave the impression that the temple was a public temple.
(b) In the other decision reported in V. Mahadeva Gurukkal Vs. The Commissioner for the Board of Hindu Religious Endowments, , the Division
Bench of this Court held as follows:
A temple which began as a private temple may, in course of time, become a public temple by express or implied dedication the latter being proved
by use of the temple by the Hindu Public as of right and without taking any permission from anyone. Under S. 9(12) no express dedication on a
definite date need be proved, if it is proved beyond all doubt that the temple has been used as of right by the Hindu public as a place of religious
worship without taking anybody''s permission, leading to an irresistible inference of implied dedication.
The law requires only the conditions stipulated under S. 9 (12) to be satisfied before a temple is declared to be a public temple. Once these
conditions are satisfied, the temple will be a public temple under S.9 (12) though those conditions must of course be strictly proved. There is
nothing in our law preventing a thing which began as a private property becoming public property later on.
In that case, the claim was that the Vallabha Vinayagar temple in George town, Madras was a private temple. The Division Bench held, as seen
from the extract above that even a private temple may in course of time, become a public one by express or implied dedication. The Division
Bench rejected the claim that it was a private temple on the ground that the Hindu public used this as a place of worship as of right and offerings
were received from the public end there was evidence that 1000 to 1500 people visited the temple everyday. It was therefore submitted that
judgment of the court below must be set aside since it was evident that the suit temple was a public one.
Learned counsel for the 1st respondent, on the other hand, submitted the one need to look no further from Exs. Cl and C2 which are the
Commissioner''s Report which speak not only of the temple, but also its physical features in the surrounding places. It speaks of the private nature
of the temple. No objection has been filed by the Department to this. Learned counsel submitted that even access to the temple was controlled
only by the founder and his family and therefore, most certainly it cannot be a public temple. The two essential factors necessary to establish public
nature were absent in this case, namely public access as a matter of right and express dedication. There are no Hundis. Further, the Samadhi of the
ancestor of the founder is situated very close to the temple which is also eloquent of the private nature of the temple. The learned counsel would
explain the relevance of Ex. Al thus: "" Ex. A.l was originally executed to create a corpus to support the temple. It was marked to show the recitals
of the deed which categorically speak of the intention of Subbanna Gounder to found a private temple."" Ex. A 2 no doubt revoked Ex. Al but the
recitals of the said deed would show that the revocation would not in any way detract from the private nature of the temple. It was revoked
because the founder was satisfied that the temple would be maintained by the family members even without the aid of the property that was settled
under Ex. Al. According to the learned counsel, the authorities under the H.R.C.E. Act had taken a myopic view of the case on hand and had not
considered the evidence from a proper perspective. The learned counsel relied on the following decisions:
(i) Radhakanta Deb v. Commissioner, (1981) 2 SCR 826 where the Supreme Court laid down the tests for deciding whether a temple was public
or private:
The following tests may provide sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public
nature. (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as
of right; (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does
not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to
be framed by associating the members of the public at large; (3) Where, however a document is available to prove the nature and origin of the
endowment and the recitals of the document show that the control and management of the temple is retained with the founder of his descendants,
and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a
conclusive proof to show that the endowment was of a private nature; (4) Where the evidence shows that the founder of the endowment did not
make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an impartment intrinsic
circumstance to indicate the private nature of the endowment.
In that case, the Supreme Court held that factually while the members of the public were not debarred from entering the temple, they cannot
worship in the temple as of right. There was nothing to show that any contribution was called for from the public and therefore, from the
unimpeachable oral and documentary evidence, the Supreme Court held that private nature of the temple was clear.
(ii) T.D. Gopalan Vs. The Commissioner of Hindu Religious and Charitable Endowments, Madras, where it was held thus:
Held on a consideration of the entire evidence the decision of the District Judge that the suit temple was private in character was correct and the
High Court erred in holding that it was public temple. The High Court did not attach sufficient importance to three matters which, in the present
case, were of material consequence. The first was that the origin of the Mandapam had been proved to be private. The second was that its
management had remained throughout in the members of the Thoguluva family. The third was the absence of any endowed property. There was no
Gopuram or Dwajasthamba nor a Nagara bell nor Hundial in the suit temple. Appeal No. 334 of 1956 D/-4.4.1960 (Mad.) reversed.
In that case, though the temple had some physical characteristics which belong to a public temple, and some outsiders came and worshipped at the
temple, yet, the Supreme Court held that the temple was a private one since the origin was proved to be private. The management remained
throughout with the members of the family, there was an absence of endowed property and there were no Gopuram, Dwajasthamba nor Hundial in
the suit temple.
(iii) Chennammal Vs. The Commissioner, for Hindu Religious and Charitable Endowments, was relied on in which it was held thus:
Before a temple can come within the scope of the definition in Section 6 (20)in Madras Act (XXII of 1959), two conditions must be cumulatively
satisfied. One is it must be a place of public religious worship. Secondly, it must have been dedicated for the benefit of the Hindu community or any
section thereof. Alternatively, it must have been used as of right as a place of public religious worship by the Hindu community or any section
thereof. Unless both these conditions are jointly satisfied, a temple will not come within the scope of the definition contained in this Act.
The law is well-settled that, when the origin of the temple is known as a private temple, then the clearest possible evidence is necessary for
converting that temple into a public temple.
The main characteristic of a public temple is that it is intended for the use of the public or a section thereof. On the other hand, private temples are
intended for the worship by the members of the family of the donor exclusively. The mere fact that outsiders are allowed to worship in a temple
cannot necessarily mean that the temple was dedicated to the public, as no Hindu will ever prohibit strangers from offering worship to the deity
enshrined in his private temple. In all such cases, worship by outsiders is referable to the leave and licence granted by the owner and cannot be
indicative of any dedication to the public.
In this case, the temple was the Pandurangaswami temple in Aruppukkottai. Several factors persuaded the Division Bench of this Court in this case
to hold that the suit temple was intended to be a private one namely that the temple was under the lock and key of the plaintiff, the temple had been
managed and intended to be managed by the founder''s family and that the expenses connected with the temple are met by nobody other than the
members of the family. The fact that the passerby could enter the temple and worship would not convert a private temple into a public one
according to this case.
(iv) In the case reported in 1983 2 M L. 274=96 LW 548 (The Commissioner for the Hindu Religious and Charitable Endowments, Madras-34
and another v. Swamikeela Arasalwar Dharmam), it was held thus:
Proof of user by the public, of the temple without interference and as of right would be cogent evidence that there has been a dedication in favour
of the public. Such a proof is wanting in this case. It is true that Utsavams are being conducted and the deity being taken in procession and on such
occasions, there will be participation of outsiders. But the mere fact festivals, are being conducted and the deity is being taken in procession and at
that time members of the general public participate in the functions are not sufficient by themselves to draw an inference that the temple has been
dedicated to the public. Equally so the presence of physical feature which are usually found in a public temple not of much significance, so long as
the test of public religious worship as of right is not satisfied. There is a clear indication that the gramadars wanted to exclude the general public,
other than themselves, from worshipping in the temple as of right. The mere fact that public is being allowed to participate in the festivals connected
with the temple or allowed to worship in the temple would not persuade the Court to readily infer there from dedication to the public. The crucial
test is that the Hindu public or any section thereof must be entitled to use the place as a place of public religious worship, and they must be doing it
as of right and not as gratia from their persons in management. Hence, the plaintiff trust, its properties and the temple is built cannot come within the
mischief of the Act.
The temple in this case was the Navaneethakrishnan Mandir at Madurai. Here also, the learned Judge relying on the fact that the temple was built
for the worship of the gramadars and donations were obtained only from them, the absence of Dwajasthambam, and Hundial and also the absence
of the right of worship by outsiders to come to the conclusion that the temple was a private one.
(v) Then, the case reported in Thanumalayaperumal Mudaliar and Others Vs. The Commissioner, The Hindu Religious and Charitable
Endowments (Administration) Department and Others, was relied on, where it was held thus:
No independent witness or member of the public has come to say that he was visiting the temple as of right and performing the poojas pursuant
thereto.
The mere presence of the worshippers on certain occasions by itself is not conclusive to show that the generality of the public were having ingress
into the temple as of right.
In this case again, the Division Bench of this Court held that there was no participation of the public in the worship. There was no proof to show
public ingress as a matter of right and also the temple was established from private funds and arrived at the conclusion that the temple was a private
one.
(vi) Finally, he relied on Balasubramania Gurukkal Vs. Sankara Gurukkal and Others, ) where it was held thus:
In the present case, it is not in dispute that the temple was built by ''M'' father-in-law of the first defendant and the said ''M'' was in management of
the temple and after his death the first defendant was managing it. Therefore it cannot be disputed that initially at least, the temple was a private
one. The temple cannot be said to be an old one. But if it has changed into a public temple, it must be the plaintiff who seeks a right without to
prove that it has so happened. May be the public are allowed to poojas and perform kattalais but from that alone it cannot be said that the temple
is a public one.
In this case, the suit related to Archaka right in a temple. The learned Judge held that when at its inception, the temple was clearly a private one,
the plaintiff who sought a right on the ground that it is a public temple should prove at least how a private temple changed into a public one and on
facts, held that the temple was a private one.
It was urged by the learned counsel that the appeal therefore should be dismissed.
Ex. C1 which is the Commissioner''s Report speaks of the features noted by the Advocate Commissioner during the inspection of the suit
property. The following sentences may be relevant:
(1). The suit property i.e. Vinayaka temple is situated on the southern side of the residential quarters of the plaintiff.
(2) The suit property is at present accessible only through the zinc sheet doubled door entry gate on the western side of the backwall of the
residential quarters of the plaintiff.
(3) After entering through the side entrance and turning towards east, the suit property situated on the south of the plaintiffs residential quarters
could be reached.
(6) At the east of the temple, there is a locked wooden double door entry to the temple. The plaintiff handed over key of the lock to his son Tiru
Kandasamy and he opened the lock of the temple.
..............
(10) No Hundi or Dwajasthambam is provided in the temple premises.
(11) At about 30 feet on the east to the temple, there is a small Samadhi and a Shivalingam is installed at the centre of the Samadhi. It is
represented by the plaintiff that it is his father''s Samadhi.
In Ex. Al, the following recitals are found:
and then, he goes on to dedicate the schedule mentioned properties for the temple. Ex.A2 which is the revocation deed has the following recitals:
Thereafter, the recitals indicate that by the settlement deed, he had intended the properties to be used for the pooja of the deity, but subsequently,
in the interest of his family and because his family members are themselves spending their funds for the upkeep of the temple, he was revoking the
settlement deed. The evidence of D.W. 1 is as follows:
He also states that he has not made enquiries with anybody to ascertain whether the public have offered worship at the temple as a matter of right.
From a consideration of the evidence and Exhibits referred to above, it is clear that the suit temple is situated within the compound of the 1st
respondent''s property and that access to the temple is through the same gate through which one enters the residential premises of the 1st
respondent. It is also clear that to enter the temple, one has to obtain the permission of the 1st respondent and also obtain the keys from him.
Therefore access is only upon the permission and pleasure of the founder and his family members. The absence of Hundi also shows that no
contribution from the public is received at the temple. The recitals in Exs. Al and A2 are clear that the founder had intended the temple to be only
for the benefit of his family members. Another crucial feature is that the Samadhi of the ancestor of the family lies very close to the temple. No
doubt, there is a presumption that private temples are very rare in South India, but it does not mean that there cannot be any private temple. The
1st respondent asserts their claim that the temple is a private temple and to this end, they have shown that the founder has dedicated certain
properties for the upkeep of the temple and he had clearly declared that the temple was for the benefit of his family. They have also demonstrated
by having an Advocate Commissioner appointed to show that the physical features of the temple would establish that both the temple and the 1st
respondent''s house have a common entry. They have established by acceptable evidence that control of the access to the temple is only with the
1st respondent. Now, it is for the appellant to dislodge their case by showing that it is a public temple and they have woefully failed to discharge
the onus of proof that the temple is a public one. They have not even examined a member of the public to show that the public worshipped at the
temple as a matter of right. The appellant wants the Court to hold that is a public temple merely because there is a Vimaanam, a balipeetam and an
extension on all sides of the temple with facilities and also because prasadam was distributed to the children who assemble everyday. Sporadic
donations or participation in worship by permission of the founder will not make the temple a public one. Needless to say, in our country, public
will not be forbidden, from participating in or from being allowed to worship in a temple. The question is, whether they do so as a matter of right or
because the founder permits them to do so. The mere fact that Ex. Al was revoked by Ex. A2 will not convert a private temple into a public one.
As seen from the decision reported in Chennammal Vs. The Commissioner, for Hindu Religious and Charitable Endowments, referred to above,
clearest possible evidence is necessary to show that a temple which was private has now become public. In the same decision, the Division Bench
of this Court after referring to the definition of temple in the Act, held thus:
temple means a place by whatever Resignation known used as a place of public religious worship, and dedicated to, or for the benefit of, or used
as of right by, the Hindu community or any section thereof, as a place of public religious worship.
Therefore, it must be a place of public religious worship before one concludes that it is a public temple. The other decisions relied on by the
learned counsel for the respondents apply squarely to this case. The tests laid down in Radhakanta Deb v. Commissioner, (1981) 2 SCR 826
when applied to the suit temple would clearly show that the temple was a private one. There too, as in this case, the intention of the founder was to
install a temple deity. Similarly, in the decision reported in 88 L.W. 649 = Petha Padayachi Vs. Ramalinga Padayachi, the Division Bench of this
Court held that the sentiment of a Hindu will not turn away a worshipper. The mere circumstance that the people in the locality were visiting a
temple will not make a private temple into a public one. In that case also, the learned Judges held that the department has not discharged the onus
of proof to come to the conclusion that it was a public temple. Similarly, in The Commissioner for the Hindu Religious and Charitable Endowments
and Another Vs. Swamikeela Arasalwar Dharmam and Others, as in this case, no member of the public was examined, who alone could speak
about the right of the public to worship in the temple. In this case, the Executive officer was examined as D.W.I and in the decision cited above the
Inspector of the Department was examined as D.W. 1. While the decisions relied on by the learned counsel for the respondents support their case
that it was a private temple, the appellant has not been able to show either by oral or documentary evidence on hand that it is a public temple, nor
had the two decisions cited here support their case. In the decisions reported in S. Ramaswamy Naidu and Others Vs. Commissioner, Hindu
Religious and Charitable Endowments and Others, , there was evidence to show that the public generally contributed to the Hundis and 20 years
before the sui, the Religious Endowments Board interfered with the administration and the community did not protest. The performance by the
public of daily poojas as of right were of clear indications of the public nature of the temple in that case. These are not available to the suit temple
herein. Again, in the decision reported in V. Mahadeva Gurukkal Vs. The Commissioner for the Board of Hindu Religious Endowments, it was
proved beyond all doubt that the Hindu public used the temple as a place of worship as of right, offerings were invited and accepted from
members of the public and therefore, the temple in that case was rightly held to be a public temple. In the case before me, the Court below had
rightly held on the oral and documentary evidence that while D.Ws. 1 and 2 had deposed that the members of the public worshipped at the temple,
D.W. 1 would say that he had not examined any member of the public in this regard. The Court below on a consideration of Exs. Al and A2 and
the oral evidence, came to the conclusion that it was a private temple. Then as regards the existence of Prakaaram and Gopuram, the learned
Judge, on a consideration of the Commissioner''s Report Exs. Cl and C2, finds that a public temple cannot have a common access with private
residential quarters and therefore, even if the temple has Prakaaram and Gopuram, the temple can only be a private temple. The learned Judge also
rightly scrapped the issue regarding the relevance of Ex. Al after it has been revoked by Ex.A.2. It is therefore seen that the temple is a private one
and the plaintiff has produced reasonable evidence both oral and documentary to support his claim that it is a private temple, while the appellant
has not been successful in disproving the said fact. The features pointed out by Exs. Cl and C2 clearly denote that the temple cannot be anything
but a private one. The reasoning of the learned Judge is sound and there is no necessity to interfere with the same. The first appeal is dismissed. No
costs.