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Judgment
Venkatadri, J.—This Letters Patent Appeal is directed against the judgment and decree of Kailasam J., in A.S. No. 227 of 1958 by which
he confirmed the decree of the Subordinate Judge, Tirunelveli, in O.S. No. 29 of 1956 dismissing the suit. The suit was brought by two plaintiffs,
appellants before us, against the Commissioner for the Hindu Religious and Charitable Endowments, Madras for setting aside the order passed by
the Commissioner for the Hindu Religious and Charitable Endowments, Madras in App. No. 137 of 1955, dated 27th January 1956, and for a
declaration that the Sri Sarva Sidhi Vinayagar temple situated in Suthamalli village it the private temple belonging to the family of the plaintiffs. The
plaintiffs'' case as set up in their plaint was that the temple was originally founded by one Sakkarayappa Pillai, the grandfather of the plaintiffs
herein, and his three sons Pakkiam Pillai, Easwaramoorthia Pillai, and Sankara Kumara Pillai. The temple itself was built out of the private funds
belonging to the aforesaid family and no part of the expenses was met by any member of the public. The deity was installed on 29th Ani 1086
(about 1911) and Kumbabhishakam was performed on that date. The temple was built just south of the residential quarters of the family. The
expenses and worship in the temple were exclusively met only by the aforesaid family and at no time did any member of the public meet any part of
the expenses or endow any fund Or property for the upkeep of the temple. The temple has all along been under the exclusive control and
management of the plaintiffs'' family and nobody else had any right to interfere with the management and none else had exercised any control over
the management till the institution ""of the suit.
Subsequently there was"" a partition between Sakkarayappa Pillai and his sons, the plaintiffs'' fathers and paternal uncle, on 19th April 1916, in
and by which the properties set out in Sch. II to the plaint were endowed to the aforesaid Vinayagar temple and Easwaramoorthia Pillai, the father
of the first plaintiff and Sankarakumara Pillai, father of the 2nd plaintiff, were entrusted with the hukdarship of the temple. It was specifically
mentioned in the partition deed that the temple has been built by the members of the family at their own expense and the deity was installed and the
daily worship was being done exclusively at the expense of the family.
Again on 11th October 1922, Easwaramoorthia Pillai, father of the first plaintiff, executed a settlement deed in favour of the Sarva Sidhi
Vinayagar deity endowing the properties set out in Sch. III to the plaint to the temple. The reason for the settlement was that the income foam the
properties set out in Sch. II was inadequate to meet the expenses of the daily warship of the temple and that the prices of articles had increased
and with a view to see that the worship and the other ceremonies of the temple were performed perpetually without any default the properties in
Sch. III which were acquired by Easwaramoorthia Pillai had to be endowed to the temple. There was a recital in the settlement deed that
Easwaramoothi Pillai will be in possession of the properties in Sch. III as trustee of the temple during his lifetime and after his lifetime his son the
first plaintiff and his heirs should be hereditary trustees and perform the daily worship and other ceremonies in the temple without any default.
Thus the properties mentioned in Schs. II and III in the plaint were endowed to the temple only by the members of the plaintiffs'' family and the
entire expenses in connection with the worship and other ceremonies in the temple were met only by the members of the family is the first instance
and later out of the income of the properties in Schs. II and III which were endowed to the suit temple.
The plaintiffs further assert that the members of their family alone have been worshipping at the said temple and no member of the public had at
any time any right to worship in the said temple. They also state that though the Hindu Religious and Charitable Endowments Board in previous
proceedings passed an order to the effect that the temple is not an excepted temple, the decision is not binding on them. The first plaintiff filed an
application under S. 57(a) of the Madras Hindu Religious and Charitable Endowments Act (Act XIX of 1951) praying for a declaration that the
Suit temple is a private one not coming within the purview of the Act. The application was dismissed by the Deputy Commissioner and on appeal
to the Commissioner for Hindu Religious and Charitable Endowments, the order of the Deputy Commissioner was confirmed.
The plaintiffs have hence filed the present suit under S. 62(1) of Madras Act XIX of 1951 for setting aside the order of the Commissioner as not
valid and binding on them and declaring the suit temple as a private temple of the plaintiffs'' family.
The Commissioner for the Hindu Religious and Charitable Endowments, Madras, filed a written statement to the effect that the Board by its
order passed earlier on 11th January 1928, has declared the suit temple to be not an excepted temple as defined in Madras Act is of 1927, and
the said order has become final and the plaintiffs have no right to agitate the same question once again, that from the reports of the Inspector of the
division who made the enquiry it is seen that the temple has been built on gramanatham not belonging to the plaintiffs'' family, that there are utsava
idols and vahanams and the deity is taken out in procession during Varushabishegam and Skanda Shasti and that the public offer worship that the
allegation that the temple has been erected for the private worship of the members of the family of the founder is not Correct and that the temple
was dedicated for public worship. The defendant therefore prayed for that the suit should be dismissed with costs.
On these pleadings the parties went to trial before the learned Subordinate Judge, Tirunelveli. He gave a finding that the temple is not a private
temple belonging to the plaintiffs'' family, but it has been dedicated to the public. He also found that the order passed by the Hindu Religious
Endowments Board on 11th January 1928 Ex. B-8 is final and binding not only on the first plaintiff''s father, but also the 2nd plaintiff''s father and
after them the present plaintiffs and they cannot now be allowed to say that the aforesaid order is not final. In the end, the learned Judge dismissed
the suit.
On appeal to this Court (A.S. No. 227 of 1958) Kailasam, J., concurred with the view taken by the Subordinate Judge on the question of the
nature of the temple, namely, that the temple is a public one, but reversed the finding that the order passed by the Board in previous proceedings is
final and held that the previous order cannot bind the plaintiffs in this suit. Now it is against that judgment and decree that the plaintiffs have
preferred this Letters Patent Appeal.
The only question we have to consider in this appeal is whether the temple is a public or private one. It is necessary for us to give some details
of the case before we finally dispose of the same. There is evidence that originally the temple was founded by Sakkarayappa Pillai, the grandfather
of the plaintiffs, and his three sons Pakkiam Pillai, Easwaramoorthi Pillai and Sankarakumaru Pillai from and out of the private funds belonging to
the family. When there was a partition, Ex. A. 1, in the family as early as 1916 the members of the family set apart a small extent of property
valued about Rs. 1000 for this temple. In the partition deed there is a recital that the temple was constructed by them. Again in the year, 1922
Eswaramoorthi Pillai, son of Sakkarayappa Pillai, executed a settlement deed Ex. A. 2 in favour of this temple endowing properties worth about
Rs. 3500. He has made the following recitals in the document.
In order to conduct the said charities, considering the meagre income and as it is not possible to conduct the charities as per the estimate already
laid as the cost of living has increased I have this day assigned the property described in the first schedule hereunder of the value of Rs. 3500
purchased by me from and out of my self-earned funds for the charity mentioned in the second schedule hereunder. As I have assigned the
property for the said charity, I and after my lifetime my son Subbiah Pillai and his descendants shall conduct hereditarily as huqdars the charities
mentioned in the second schedule, without any hindrance and permanently from and out of the balance of income from the properties described in
the first schedule hereunder after paying the Government theerva etc. I shall have the patta in respect of the said charity property transferred as in
the name of Easwaramoorthi Pillai, huqdar of the said Sarva Sidhi Vinayagar, Suddamallee village.
In the year 1926 Eswaramoorthi Pillai submitted a petition to the Government requesting the Government not to interfere with the
administration of the temple. Nevertheless, in the year 1927, the Hindu Religious and Charitable Endowments Board classified the suit temple as an
excepted temple and called upon the then trustee (Eswaramoorthi Pillai) to submit a budget for fasli 1337. The record shows that Eswaramoorthi
Pillai was not submitting the budgets as directed by he Board during his lifetime. In 1955 the first plaintiff filed an application under S. 57(a) of the
Madras Act XIX of 1951 to declare the institution a private temple not coming within the purview of the Act. In that connection there was an
enquiry and the Board collected statements from the first plaintiff and Boominatha Pillai, karnam of Suthamalli village. The karnam gave a statement
supported by an affidavit that the aforesaid temple was constructed by the forefather of the plaintiffs and that the members of the family are
managing the temple and meeting the expenses of the temple from their own funds and that the temple is not a public one and no one has any right
whatever over the said temple. He also stated that the temple is constructed on the natham, which is not in the name of any particular individual,
that the house-sites in the village have not been sub-divided and that there is no property in existence as endowed by any one to the temple and no
property is mentioned in the accounts of the Government as standing in the name of the deity. During the trial of the suit evidence was let in the
prove that the temple is a private temple. The first plaintiff has given evidence that the temple is situated inside a separate compound and has two
entrances one from the road and another from the plaintiff''s house and the latter entrance hails in the north pragaram of the temple and that there is
an iron gate in the main entrance. P.W. 3, a resident of the locality, supported the plaintiffs'' case and stated that the deity is taken through the
streets. P.W. 4, a Health Inspector and who is a resident of the village from 1950 also supported the case of the plaintiff. The first plaintiff in his
evidence has also stated that there are three or four public Vinayagar tembles in the village, where members of the public offer worship. The
karnam has been examined as D.W. 1, and he stated that the suit temple is a private temple belonging to the family of the plaintiffs. D W. 3
Sankaranarayana Bhattar has deposed that he was the archakar of the suit temple for about 15 years, that he was receiving 1� kotahs of paddy
for every six months, that he was not a permanent archaka and he was also doing archaka for other temples also at the same time, that the
plaintiffs'' house was just north of the suit temple and there is a gateway on the northern side of the temple through which the plaintiffs and members
of the family could come to the suit temple, that excepting when he went to the temple to perform puja, at all other times the gate remained locked,
that the deity would be taken out in procession on Varusha Abhishekam day and that there is no public hundial and people do not offer Kanikai.
This is in effect the evidence in the case on which we have to decide the question whether the temple is a public or private one.
The definition of a temple given in the Act is the following.
''Temple'' means a place by whatever designation known, used as a place of public religious worship, and dedicated to or for the benefit of or used
as of right by, the Hindu community or any section thereof as a place of public religious worship. (Cl. 6 (17).
In his classical book on ""Hindu and Mohamedan Endowments"" by P.R. Ganapathi Aiyar, 2nd Edn, the learned author gays at page 86:
Where a temple is shown to be private, there must be strong and clear proof of subsequent dedication to the public, if it is claimed to be public.
Mukherjea J. in this Tagore Law Lectures on the ""Hindu Law of Religious and Charitable Trust"" 1952 Edn. under the head in ""Material tests
for determining the public or private character of a temple"" has stated at page 186:
In cases where no express dedication is proved, the character of the endowment must always be a legal inference from proved facts. As in the
case of high-ways long user is undoubtedly a material element from which an inference of dedication may arise. If the public have been in the habit
of worshipping in the temple in an open and unconcealed manner for a long period of time, and were never denied any access to it, that would be a
strong evidence of dedication. With regard to the period of user, no hard and fast rule has been laid down. There is no minimum which must be
fulfilled and there is no maximum which compels the inference. Each case would depend upon its own circumstances.
The distinction between a public trust and a private trust is lucidly set out by Lewin on Trusts at pages 15 and 16 as follows:
By public must be understood such as are constituted for the benefit either of the public or private at large or of some considerable portion of it
answering a particular description�In private trusts the beneficial interest is vested absolutely in one or more individuals who are, or within a
certain time may be definitely ascertained, and to whom therefore collectively, unless under some legal disability, it is, or within the allowed limit will
be competent to control, modify or determine the trust.....A public or charitable trust, on the other hand, has for its objects the members of an
uncertain and fluctuating body, and the trust itself is of a permanent and indefinite character, and is not confined within the limits prescribed to a
settlement upon a private trust.
Venkatarama Aiyar J. while delivering the judgment, brought out this distinction in his classical judgment in Deoki Nandan Vs. Murlidhar,
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 when the beneficiaries are not members of the family or a
specified individual, then the endowment can only be regarded as public intended to benefit the general body of worshippers.
In Babu Bhagwan Din v. Gir Har Saroon, (1940) 1 M.L.J. 12=51 L.W. 4 (P.C.) an application was made by a member of the public to a
District Judge under S. 3 of the Charitable and Religious Trusts Act, for an order directing accounts and particulars to be furnished in respect of an
institution, alleged by the applicant to a public temple. The facts in that case revealed that for many years Hindu members of the public had gone to
the temple for worship and dharsan without any let or hindrance. There used to be a mela or fair in the temple which had become an annual feature
towards which subscriptions were collected. There was evidence to show that moneys were spent upon white-washing and repair to the temple.
But the learned Judge negatived the contention that it was a public temple. They observed at page 10:
Facts and circumstances, in order to be accepted as sufficient proof of dedication of temple as a public temple must be considered in their
historical setting in such a case as the present, and dedication to the public is not to be readily inferred when it is known that the temple property
was acquired by grand to an individual or family.
The Hindu Religious Endowments Board v. V.N. Devanai Ammal by power of attorney agent Madras Hindu Religious Endowments Board
Vs. V.N. Deivanai Ammal by Power of Attorney agent T.V. Mahalinga Aiyar, was a case which related to Sri Veda Vinayaka alias Sarvasiddhi
Vinayagar Temple at No. 187 China Bazar Road, Madras. Originally the Board after an enquiry held that the temple was a public temple. The
temple filed an appeal against that order and succeeded in getting a declaration that it was a private temple. The Board filed an appeal against that
order and Venkatarama Aiyar J. observed in the cause of the judgment thus:
It must be noted that there is no deed of dedication and as has been observed by the Privy Council it is essential that it should be clearly proved
that the institution was dedicated to the public. In case of an old temple such dedication might be presumed from long user by the public at of right.
But in this case the temple was built up in the year 1919 and in the absence of a deed of dedication, it is difficult to bold that there has been
dedication to the public.
In Chahkarai Chetti v. Commissioner, H.R. and C.E. (1955) 1 M.L.J. 503=67 L.W. 830, the ancestors of the appellants and respondents
founded the temple as a family institution after purchasing the site where there was only a Devathi Vinaygar in a thatched shed. The site belonged to
the joint family and the temple was built on that site. Nobody contributed for the expenses of the temple. The inscription in the silasasanam was to
the effect that the building of Sri T. Ganapathi Subramania Swami Devastanam at Palaverkadu, Ponneri Taluk, Chingleput Dt., has been
constructed and completed by the trustees of the aforesaid devastanam, the persons named thereunder. There was nothing to show that any
member of the public had contributed anything towards the construction of this temple. There was no dedication to the general public and no
separate funds were endowed to the temple. Uthsavams were no doubt celebrated in the temple and the deity was taken through the streets during
utsavams. Govinda Menon, J., who delivered the judgment of the Bench, relied on the observations made in Koman Nair v. Achuthan Nair 58
Mad 91=40 L.W. 428 (P.C.) where it was held that the fact that the members of the public are occasionally allowed to worship in the temple
cannot show any kind of dedication to the public or that the public or any section thereof as a matter of right worship in the temple and that it is not
in consonance with the Hindu sentiments to exclude worshippers from a temple even when it is private. Taking all circumstances into consideration,
it was held that, even though the temple is situated in a public place and has got most of the indicia attaching to public temples, still in the absence
of any deed of dedication or any direct evidence to that effect, the conclusion is not possible that the temple is a public one. On the facts proved in
that case the learned Judges were not satisfied that there has been any dedication of the institution to the Hindu public or any section of it.
In Commissioner, H.R. and C.E. v. Shama Rao (1955) 1 M.L.J. 510=67 L.W. 789 also the question arose whether the temple in that case
was a private or public one. It was contended on behalf of the temple that it was never dedicated to the public and the public did not worship there
and that it was intended only for the members of the family of the respondents who were devotees of Hanumar and who belonged to the Madhwa
section of the Hindu community. The expenses for the temple are said to have been met entirely out of private funds. No offerings or subscription
had ever been made by or received from the public. The public had also never interfered at any time with the management of the temple. Basheer
Ahmed Sayeed, J., observed that the evidence disclosed that the temple is being managed by the members of the family as its lawfully appointed
trustees by the Court. The learned Judge also observed that the mere fact that the temple is outside the dwelling house, that poojas are performed
by a paid archaka, that a big idol is in the temple that swamiars are permitted to stay there would not by themselves satisfy the requirements of a
public temple.
In The Commissioner for Hindu Religious and Charitable Endowments Vs. A.P.S. Sethurama Pillai and Others, Ramachandra Iyer, J., as he
then was, decided on the facts of that case that there was no proof of there having been any dedications of the temple to the public. There was no
acceptable evidence in that case to indicate that the public worshipped in the temple as of right at any time.
On a consideration of the case-law on the subject referred to above, it will be clear that the temple in the instant case cannot be deemed to be
a public temple. The temple was founded by the plaintiffs'' family. The family alone settled the properties for the use and benefit of the temple.
There is no evidence on record to show that any member of the public either offered moneys or endowed any property to the temple. The entire
properties belonging to the temple are in the possession of the plaintiffs'' family. No member of the public either interfered with their management
and possession of the properties of called upon them to render any account in regard to the income of the properties. There is no cogent or clear
evidence to prove that the members of the public as a matter of right were allowed to worship in the temple. Another factor to be taken into
consideration is that the temple is situated not only adjacent to the plaintiffs'' house, but the plaintiffs have got access and entrance to the temple
directly from their house. There is an iron gate at the main entrance which would indicate that the plaintiffs exercised some control over the right of
the public to offer worship at the temple. There is also the evidence of the karnam D.W. 1 that the gate will be always locked except when poojas
are performed by the archakar. There was no permanent archaka for the temple. As pointed out by P.R. Ganapathi Aiyar in the book referred to
above, this is one of the important tests to be applied in deciding whether a temple is a private or public temple. Even the archakar D.W. 3 has
given evidence that he was not a permanent servant of the temple, that he was receiving only 1� kotahs of paddy for every six months and that
he was doing archaka for other temples also at the same time. Another important feature to be noticed in this case is that there are 3 or 4 public
Vinayagar temples in the village where members of the public offer worship. The trial court as well as the appellate Court laid much emphasis on
the fact that the public were allowed to worship in the temple. But this is not conclusive of the matter. As observed by the Judicial Committee in
AIR 1934 230 (Privy Council) the ordinary Hindu sentiment is not to prohibit any worshipper from worshipping in a temple, even though the
temple was intended mainly for the worship of the members of the family of the founder. Both the courts also relied on the fact that the temple is
not situated in the plaintiffs'' predecessor''s land but on a natham, but the village karnam has stated that all the houses in that village were
constructed on natham property. Merely because the temple is situated on a natham, it cannot be called a public temple. Another feature of the
case which has weighed with both the courts is that utsavams are being performed and the deity is taken out in procession. It is useful to refer in
this connection to the decision of Varadachariar J. in Bhavanam Nagireddi and Others Vs. The Board of Commissioner for Hindu Religious
Endowments, The facts in that case are the following. The founder of a temple executed a trust deed contemplating certain kainkaryams in the
temple being undertaken by outsiders and also provided for the performance of Paksha Utsavam, Masa Utsavam etc. The utsava deity was taken
in public procession at least once a year to give all facilities to the public to worship the deity. The point was whether those facts were all consistent
with the temple being a public one instead of a private one. Varadachariar J. observed at page 488.
The powers of interference by the Court or by the legislature rests not upon the wishes of the founder but upon principles and provisions of the
law. So long as there was no intention to exclude the right of worship-on the other hand, as I have endeavoured to show, it was expected that
outsiders may worship in the temple and even perform kainkaryams-the restriction of the right of outsiders to interfere in the management of the
temple is not a determining fact for the present purpose
To use the language of Wallis C.J. in Muthiah Chetti v. Periannan Chetti 4 L.W. 228 the plaintiffs have strictly proved their private ownership
of the temple. We hold that the suit temple is a private temple belonging to the family of the plaintiffs. The order dated 27-1-1956 passed by the
Commissioner, Hindu Religious and Charitable Endowments Board, Madras is set aside as not binding on the plaintiffs. In the result, the appeal is
allowed but without costs.