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Judgment
Abdul Hadi, J.—Plaintiff is the appellant in this appeal against the judgment and decree dated 13.3.1981 in O.S. No. 91/77 on the file of the
Subordinate Judge, Kumbakonam. The suit is to set aside the dismissal order of the first defendant-first respondent-Commissioner, H.R. & C.E.
Madras dated 20.4.1977 in A.P. No. 182/76 and for a declaration that the suit institution is not a religious institution or a temple coming within the
purview of Tamilnadu Hindu Religious and Charitable Endowments Act (T.N. Act 22/59), hereinafter referred to as Act, and for consequential
injunction. The suit is under S.70 of the Act and the above said A. P.No. 182/76 is the appeal by the plaintiff against the dismissal of his petition,
O.A. No. 59/74, on the file of the second defendant 2nd respondent-Deputy Commissioner, H.R. & C.E. Tanjore for a declaration that the suit
temple is not a temple coming under the Act and that it is a private temple and the H.R. & C.E. department has no control over the same. Both the
respondents 1 and 2 and the trial court have concurrently held that the suit temple is not a private temple, but a public temple coming under the
Act.
Now, in this appeal, the learned senior counsel for appellant, Mr. G. Subramaniam, initially argued that the burden of proving that the suit temple
is a public temple is on the respondents only. But this contention, is absolutely without any merit. The decision reported in T.V. Mahalinga Iyer v.
State of Madras AIR 1980 A.C. 2036 has also held,
It is undisputed law that so far as Tamil Nadu is concerned, there is an initial presumption that a temple is a public one, it being up to the party who
claims that it is a private temple, to establish that fact affirmatively. Of course, this initial presumption must be rebutted by clinching Testimony and
the crucial question is as to whether the public worship in the temple as of right Ordinarily. There may not be direct evidence regarding the exercise
of such right and Inference has to be drawn from a wealth of circumstances....The dedication to the public need not be by a deed and may be spelt
out of the circumstances present. The right of the public to worship again is a matter of inference.
(emphasis supplied)
So, it is only to be seen whether the plaintiff has discharged this burden. The Learned Counsel for the respondents drew my attention to the
following passages in the plaintiffs petition in the aforesaid O.A. No. 59/74, itself
The several poojas and Utsavams are purely for the Madhva Community to which the founder and the successors belong...... It is only the Madhva
Community which participated in the Poojas and festivals narrated in paragraph 3 above.
The abovesaid petition is part of the file of the second respondents department and in the said file, another part, namely, the evidence recorded in
the said petition before the second respondent, was alone marked as Ex. B1 in the present suit. On this ground, the Learned Counsel for the
appellant sought to argue that the said petition, having not been marked as an exhibit separately, should not be looked into. But, there is no merit in
this contention, since the said petition in O.A. No. 59/74, is virtually a part of the very record of the present case. So, when in the said petition
itself, the plaintiff alleges that the poojas and Utsavams in the temple are purely for the Madhva Community and only the Madhva Community
participated in the poojas and festivals of the temple, it is clear that the temple is dedicated for a section of the public, namely the Madhva
Community. It is settled law that if the temple is even for a section of the public, it is only a public temple. Vide Deoki Nandan Vs. Murlidhar,
endowment must be held to be private or public, according as the beneficiaries thereunder are specific persons or the general pubic or sections
thereof
(Emphasis supplied).
Further, as pointed out by the trial court, there is nothing to show, in Ex. A1, the oldest document of 1910 exhibited in the present case, that the
public should not participate in the poojas of the temple or should not worship in the temple. Though in Ex. A2 the trustee appointment deed dated
13.10.55 it is mentioned for the first time that the suit temple has been treated as family private temple it is significant to note that it is also
mentioned therein that in the event of failure on the part of the trustee concerned to nominate his successor, the Government shall intervene and
appoint the successor from the members of the family.
So, there is no difficulty in holding that the plaintiff has not discharged his burden of proving that the suit temple is not a public temple, but only a
private temple belonging to the family of the plaintiff.
The Learned Counsel for the appellant, no doubt also argued that there is no acceptable evidence on record to prove that there is dedication of
the suit temple as public temple. He drew my attention to S. 6(2) and S. 6(18) of the Act. S. 6 (18) defined the term ""religious institution"" as a
math, temple or specific endowment. S. 6 (20) defines the term, temple, as a place, 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"" . So a ""temple"" is a
religious institution and it should satisfy two ingredients, namely (1) it is used as a place of public religious worship and (2) (a) it is dedicated to, or
for the benefit of, the Hindu Community or any section thereof, as a place of public religious worship or (b) it is used as of right by the Hindu
Community or any section thereof as a place of public religious worship. This is also reiterated in Chennammal Vs. The Commissioner, for Hindu
Religious and Charitable Endowments, cited by the Learned Counsel for the appellant himself. In the present case, from what is stated in the very
petition O.A. 9/74 there is no doubt that the suit temple is used by Madhva Community, a section of the Hindu Community, as a place of a
religious worship. Since it is so used, it can be said to be used, by public and so, used as a place of Public religious worship. So, the first ingredient
is satisfied. Nextly, on the same reasoning, it can be safely inferred that the suit temple was also dedicated for the benefit of Madhva community, a
section of the Hindu Community as a place of public religious worship. Even otherwise, from what is stated in the above referred to petition O.A.
No. 59/1974 it can certainly be concluded that the Madhva Community people used this suit temple as of right as a place of public religious
worship. So, the second ingredient is also satisfied. In the light of the above conclusion, the other passages cited by the Learned Counsel for the
appellant, taken out from Deoki Nandan Vs. Murlidhar, , and dealing with Sankalpa, Uthsarga etc., in the matter of dedication of a temple, do not
assume any importance in their application to the present case. Likewise, the other decision cited by him namely The Commissioner for Hindu
Religious and Charitable Endowments Vs. A.P.S. Sethurama Pillai and Others, also has no application to the present case. The said decision has
only held that when there is no proof that any dedication of the temple to the public, has been made or that the public worshipped in the temple as
of right at any time, the institution is a private temple only. But, in the present case, as I already pointed out, the plaintiff himself stated in his above
said petition that the suit temple was for the benefit of the Madhva community and only the said community people participated in the poojas and
festivals therein. Madhva Community being a section of public, it is clear in the present case, the temple is a public one. The Learned Counsel for
the appellant has also pointed out that the respondents have not examined any member of the public in the present case to give evidence that the
members of the public are worshipping in this temple as of right. In this connection, he has relied on S. Krishnan v. Commr. HR & CE Madras
1989 1 L.W. 348 particularly para 12 therein. But, this attack cannot be made in this case in view of the above admission by the plaintiff himself in
the petition in O.A. No. 59/74. Under the above circumstances, the dismissal of the suit is justified and this appeal has to be dismissed.
The Learned Counsel for the respondents also argued relying on The Executive Officer, Arulmigu Ranganathaswami Devasthanam Vs. His
Holiness Srivan Satagopa Sri Vedantha Desika Yathindra Mahadesigan 44th Jeer of Sri Ahobila Math, Hereditary Trustee of Vedantha Desikar
Sannadhi within the precincts of Sri Ranganatha Swamy Temple and Others, ) that the suit itself is not maintainable since notice under S. 80,
C.P.C. has not been given. On the other hand, the Learned Counsel for the appellant contended that this question cannot be raised for the first
time in this appeal by the respondents in view of the observations made in Commissioner for Hindu Religious and Charitable Endowments (Admn.)
Department Vs. Kanniappa Naicker (since deceased) and Others, . which is a decision rendered subsequent to The Executive Officer, Arulmigu
Ranganathaswami Devasthanam Vs. His Holiness Srivan Satagopa Sri Vedantha Desika Yathindra Mahadesigan 44th Jeer of Sri Ahobila Math,
Hereditary Trustee of Vedantha Desikar Sannadhi within the precincts of Sri Ranganatha Swamy Temple and Others, But, I don''t think it
necessary to go into this question since I have already held on facts that the suit temple is not a private temple, but a public temple, coming within
the definition under S. 6(20) of the Act and that hence the appeal has to be dismissed. Therefore, this appeal fails and is dismissed with costs.