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Judgment
Govinda Menon, J.—A dispute having arisen as to whether the Sri Subramaniaswami Temple situated in Pulicat village, Ponneri taluk, is a
temple as defined in S. 9(12) of the Madras Hindu Religious Endowments Act, it was decided by the H. R. E. Board that the institution is a temple
as defined in the Act. Thereupon the appellants before us, who claimed that the institution is a private temple belonging absolutely to a family of
which they and respondents 2 to 12 formed members applied by O.P. No. 3 of 1950 before the District Court of Chingleput under S. 84 (2) of
the Act to set aside the order of the Board deciding that the institution is a temple as defined in the Act. The learned District Judge by dismissing
the application confirmed the order of the Board and this appeal is preferred by the aggrieved parties under S. 84 (3) of the Act. 2. S. 9 (12) of
Act II of 1927 which is the statutory provision with which we are now concerned defines a temple as 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. Therefore the necessary criteria for bringing an institution within this definition are : (1) it must be used as a
place of public religious worship, (2) it must be dedicated to, or for the benefit of the Hindu community or any section thereof; (3) it must be used
as of right by the Hindu community or a section thereof as a place of public religious worship. Unless the conditions contemplated by this section
are complied with, it cannot be held that the institution is a temple defined in the Act. The learned District Judge has held that in view of certain
decisions, the presumption is that the institution is a temple as defined in the Act. 2. The learned District Judges has therefore, held that in view of
those decisions, the presumption is that the institution is a public one, and he who disputes that presumption must prove the contrary. Adverting to
the evidence let in before him the learned Judge was not convinced that that presumption has been rebutted. The learned Counsel for the appellant
contends that on the evidence the only conclusion that is possible is that the temple cannot come within the purview of the definition. It is urged (1)
that there is no evidence of any dedication (2) that there are no endowments belonging to the temple as such (3) that even the temple has been built
on a lard purchased by the trustees'' family for a sum of Rs. 200 and (4) that there are no kattalais belonging to the institution.
Whatever might be the tests laid down in decisions pronounced prior to Madras Act II of 1927 so far as the present dispute is concerned, the
matter has to be clinched by the definition in S. 9 (12) and therefore we do not propose to discuss, as the learned District Judge has done,
decisions which have no bearing upon the interpretation of the term. The only case where the definition in S. 9 (12) did not form the subject of
consideration but in which the question whether a temple is a public one or not was decided and which we propose to consider is the Privy
Council decision in Koman Nair v. Achutan Nair 58 Mad. 91 = 40 L.W. 428 (P.C.). It is unnecessary to discuss the observations which
peculiarly pertain to the facts of that case. Their Lordships say that the crucial point for deciding the nature of a temple is whether there has been a
dedication to the public and if that dedication cannot be ascertained with any degree of certainty from the evidence, then the mere fact that in Infer
times members of the public were allowed to worship in the temple without any let or hindrance would not make the temple a public one. For, as
has been more than once noticed in decisions of this Court, it is against the sentiments of any Hindu to prevent the worship of a deity wherever
installed, be it in a private house or in a public temple There has been numerous instances (1) where deities installed in places which are not public,
have attracted pious and godly people for the purpose of worship and by the mere fact that they have not been prevented from praying and making
offerings to the deity, in such places nobody would dream of thinking that such places are places of public religious worship.
So the question that we have now to consider is whether the temple in question has been used as a place of public religious worship and
dedicated to, or for the bene6t of, or used as of right by the Hindu community or any section thereof.
On behalf of the appellant our attention has been invited to the oral and documentary evidence in the case, especially the oral evidence of P.
Ws. 1 and 3. The gist of the evidence of P. W. 1 is to the effect that the ancestors of the appellants and respondents 2 to 12 founded the temple as
a family institution after purchasing the site where there was only a Devathi Vinayakar in a thatched shed. The site belonged to the joint family and a
temple was built on that by P. W. 1 is father. At present a Gurukkal is doing pooja but nobody contributed for the expenses of the temple. He
refers to a silasasanam, a copy of which is marked as Ex. B. 110. It is dated 4th February 1896. The inscription is to the effect that on the 23rd
day of Thai Jaya Year (4th February 1895) commencing from Prabhava, the Kaliyugha 4696th year, the building of Sri. T. Ganapathy Subramania
Swami Devastanam at Palaverkadu, Ponneri Taluk, Chingleput District, had been constructed and completed by the trustees of the aforesaid
devastanam, the persons named thereunder. There is nothing to show that any member of the public has contributed any. thing towards the
construction of this temple. P. W. 1 further stated that there was no dedication of the temple to the general public and that no separate funds were
endowed to the temple. He admits that they are celebrating the utsavams of the temple and when the deity is taken through the streets during the
utsavams the Gurukkal is allowed to take public deeparadanas with their permission and that such offerings are returned to the public who offer
them. The learned District Judge has attached to his judgment a rough sketch of the temple and its premises. It shows that there are various
buildings attached to the temple, that it has a Prakaram, a Dwajasthambam and Mandapams and Madapalli attached to it. The residential quarters
of the Gurukkal are very near the temple, in addition there is a Yagasala and a place where the vigrahams are installed. The temple is surrounded
by a compound wall of its own on all the four sides and there is a flower garden attached to it for the purpose of rearing flower plants. These are
factors which might generally be seen in all public temples. It is therefore contended on behalf of the Endowments Board as well as the party who
persists in putting forward the contention that it is a public temple, that in view of the structural nature of the temple and its premises there can be
no escape from holding that it is a public temple. We are not impressed with this argument. There is nothing which prevents any individual from
constructing a place of private religious worship with all the indicia of a public institution. The question whether a house of God is to be considered
as belonging to a family or a group or whether it can be used as of right by the public cannot be determined by the nature of the buildings and the
opulence with which the same has been furnished. The criterion should be whether there has been any dedication to the public.
From the evidence of P. W. 1 it is clear that their has been no such dedication. He has been cross examined at great length. He has admitted
that the present structures, which are described in the Commissioner''s plan and about which the learned Judge has attached a rough sketch are in
existence. But all these according to him were built with funds belonging to the family of the parties and not as a result of any public subscription. In
paragraph 9 to his deposition, in cross-examination, the main features, of which notice has been taken by us above are admitted. With regard to
the festivals that were conducted in the temple, his testimony is that some members of the family used to spend for festivals as well as parvettai
during the Brahmotsavam, Vinayaka Chathurthi and other festivals. Further he admitted that during the utsavam when people from the general
public come and worship, they do not object to the same. The important part of his testimony on which reliance has been placed by Counsel for
the Commissioner for Hindu Religious and Charitable Endowments and for the other respondents who contend that the temple is a public temple is
with regard to the existence of a Dasi who had been dedicated to the temple some years ago but who ceased to have any connection with the
temple later on after surrendering the property given to her under Ex. B-16 dated 29th January, 1937. It is further contended that the members of
the public have made contributions and gifts to the temple and an instance can be seen from Ex. B-29 by which one Tiruvenkatachari made a gift
of a piece of land to the temple for the Dharmakainkaryams of the devasthanam. We have very carefully perused the evidence of P. W. 1 and in
our opinion there are no admissions from which any firm conclusion is possible that the public, or any section thereof, are, as of right, worshiping in
the temple, or making offerings. So far as the oral evidence in the case is concerned, P. W. 1 can be said to be interested. So also is R. W. 2, who
is a disgruntled member of the family which built the temple. He is the son of one Ramaswami Chetti, who was the Dharmakartha for five or six
years. He deposes that the public as a matter of right worship in the temple and bestow offerings. According to him one Amrithammal a Vannia
lady, has endowed a sum Rs. 1,000 for the celebration of Brahmotsavam, one Krithigai festival. One Thiruvenkatachari has executed a deed of gift
Ex. B. 29 This witness owes a sum of Rs. 6,000 to the temple and he is a person not friendly towards P. W. 1, as is seen from the facts elicited in
cross-examination. Therefore we have to leave out of account the interested testimonies of both P. W. 1 and P.W. 2. When that is done, the
residuum of evidence is that afforded by P. Ws. 2 and 3 and R. W. 1. P. W. 2, Sundaram Pillai, aged about 62 had been the karnam of Pulicat
village since 1914. He is positive that the temple belongs to Arimuthu Chetti vagaira, who are called Chunnambukulathu people. The temple is
situated opposite to the house of the Chettiar and before the present temple was enlarged and built there was a small Pillayar temple in a thatched
shed and that shed got burnt. Thereafter the land was purchased by the Chettiars and all the Sannidanams were built by them. He says that
Arimuthu Chetti family people built the Sannidanams and installed the deities and the manais on which the Sannidanams are built belong to them.
The public did not contribute towards the construction of the Sannidanams and installation of the deities, The family is exclusively financing the
utsavams. When questioned as to whether the public participate with or without the permission of the family he admitted that he is not in a position
to say so but he is positive that the Adi Drivadas have not yet entered the temple. There were four groups among the Chettiars springing from four
families and he gives the names of each one of them. Each one of these groups has got a separate temple and each one of them was looking after
the affairs of the temple. He was cross, examined at some length and he admitted that he never went to the temple except on invitation. About the
dedication of the Dasi and her leaving the temple, the witness stated that though she was dedicated, she went away some years ago and the
properties, given to her were returned by the gift deed Ex. B-16. It is also stated that one Amirthammal celebrated the third day Simhavahana
utsavam and that one Shanmugaaundaram celebrated the Horse vahanam. It is further stated that there are no hun dials in the temple and that
outsiders come for these utsavams. We have no hesitation in accepting the evidence of this witness in toto and on this evidence it is clear that the
members of the public do not as a matter of right either worship or bestow offerings to the temple.
The other witness P.W. 3 is the village munsif of Pulicat for thirty one years and he knows the suit temple. According to him the temple belongs
to Chunnambukulathar, i.e., the Arimuthu Chetti''s family. This witness being a Mussalman is not in a position to give details of the worship by the
others.
R. W. 1 was the Inspector of the Hindu Religious Endowments Board from 1943 to 1950. His report to the Board is marked in the case as Ex.
B-5. All that he states there is from enquiry and he does not know anything personally about the temple affairs.
One crucial circumstance which we have to consider is the absence of any member of the public deposing that the public have any right to
worship in the temple without the permission of the trustees. In a village of this magnitude where admittedly the caste Hindus predominate, it is
surprising that no member of the public has come forward to support the theory of the Board that this is a public temple. In our view that is the
most important criterion.
On behalf of the Board various points have been urged. It is firstly contended that the presumption that the temple is public institution has not
been rebutted. Secondly, relying upon the observations contained in Sitararnanuja Chart v. Vallamma 1915 M.W.N. 842 at 844=2 L.W. 858 it is
argued that a private temple cannot be outside the dwelling house of the family. From the evidence it is clear that the land for building the temple
has been purchased under Ex. B.7 and is situated very near the family house of the trustees. The fact that the temple is not exactly within the
dwelling house of the trustees would not detract from its private nature if it was really a private temple.
The third point on which learned Counsel relied is with regard to the gift evidenced by Ex. B. 29 by which one Tiruvenkatachari, as has already
been mentioned, made a donation of a small piece of land worth Rs. 100 to the temple. We do not know under what conditions and under what
circumstances the donation was made. But, if as a matter of fact, the temple has been receiving donations from outsiders much better and more
cogent evidence would have been made available about it. It is not uncommon in certain parts of India for an individual to make a gift to an idol in a
private institution and therefore such a stray instance cannot convert what was originally a private institution in a public temple.
Another point which the learned Counsel wanted to argue is that admittedly Brahmotsavam is conducted for some days in the year and
outsiders perform the ubayams. Our attention was invited to Ex. B. 17 which is a statement of the details regarding the conduct of the
Brahmotsavam. A closer examination of the document shows that except on one or two days, where it is slated that Devaslanam villagers perform
these ubayams, there is nothing else to show that others have been spending any money for conducting these utsavams. To our minds the fact that
Devastanam villagers are mentioned would not shew that the members of the public have conducted festivals as a matter of right. It may be that the
Devastanam villagers refer to the tenants of the lands which are separately allotted for the expenses of the temple and that is a proper description
to be given to those villagers. The other facts which Counsel relied are that the temple has got a Gurukkal and a hierarchy of servants. We do not
think that all these factors go to any extent at all.
We may now refer to a few cases on which reliance has been placed on behalf of either side. The most important of them is a recent decision
of Rajamannar, C.J. and Venkatarima Aiyar, J., in The Madras Hindu Religious Endowments Board v. Deivanai Ammal (1953) 2 M.L.J. 638 =66
L.W. 1020., which was against a decision of Krishnaswami Nayudu, J., holding that the Sri Veda Vinayaka alias Sarvasidhi Vinayakar Temple at
No. 187 China Bazaar Road, Madras, is not a temple as defined in S. 9 (12) of the Madras Hindu Religious Endowments Act, and therefore,
exempt from the operation of the Act, The various instances which were alleged on behalf of the Endowments Board to show that the temple in
question is a public one have been elaborated by the learned Judges. They are (1) that the temple was built in 1919 and the Kumbabishekam was
performed on a grand scale; (2) that the person who claims to be the owner of the temple herself made utsavamur this, built chaprams, and deities
were also taken in procession on some special occasions; (3) that a Gurukkal has been engaged to perform the puja regularly, and (4) that the
temple has got a gopuram and other features which are usually found in a public temple. The learned Judges held that in spite of these things the
temple is a private, one, as there has been no deed of dedication proved at all. The learned Judges referred to Koman Nair v. Achutha Nair 56
Mad. 91-40 L.W. 428 (P.C.), and held that the that that 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 they state that it is not
in consonance with the Hindu sentiment to exclude worshippers from a temple even when it is private. Observations of Varadachariar J. in
Bhavanam Nagireddi and Others Vs. The Board of Commissioner for Hindu Religious Endowments, were also considered by the learned Judges.
Taking all the circumstances into consideration, it was held that even though the temple was situated in a very 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. The mere fact that members of the public are allowed to worship is no ground to hold that it is a public temple at all.
We are in perfect agreement with this decision. In the present case, the land on which the temple is built was purchased in 1887 by a certain
Rathna Chetti and though he is described as a trustee of the Sri Subramaniaswami temple, Pulicat, it is clear that the purchase was intended for the
building of an institution which could not be held to be a public temple for towards the end of the document, Ex. B.7, it is stated that the vendee
himself shall hold and enjoy the said land. The mere description of the individual as the trustee of the temple in the preamble of the document would
not show that the members of the public have any right in it. In the operative portion of the document when the vendor says that the vendee shall
hold and enjoy the said land, the full import of that expression is that the public cannot have any kind of right in it. In this case, though there is some
evidence to show that unlike the temple concerned in The Madras Hindu Religious Endowments Board v. Deivanai Ammal (1953) 2 M.L.J. 638
=66 L.W. 1020, some property has been dedicated for the upkeep of the temple, the preponderance of oral and documentary evidence is to the
effect that the income from those properties would not be sufficient for meeting all the usual and unusual expenses of the temple. Even according to
R.W.2, the total extent of the temple land is only about 15 acres and it is not stated that the income from these lands would in any way be sufficient
for meeting the usual expenses. He also states that the outstandings to the temple are only about Rs. 2500. According to his own deposition, he
owes Rs. 6000 to the temple. But a person who does not pay his dues to the creditor and claims the institution as private is not entitled to any
credence at our hands. There are suggestions which are not substantiated by any credible corroborative piece of evidence that temple jewels are
worth Rs. 30000. But who gave them and how they came to be temple jewels are not at all explained. As we have stated already the evidence of
this witness is not entitled to acceptance at our hands. According to him the annual income of the Devasthanam will be Rs. 500 to Rs. 600 and not
more, and this has been the income for 20 or 25 years past. If Utsavams and other ceremonies have to be conducted and if Nityaneivadya
Deeparadana has also to be performed, it is conceded that a monthly income to the tune of Rs. 50 would be hardly sufficient for these matters and
on the evidence of P. Ws. 1 and 2 that the family is spending for the ceremonies and kainkaryams we have no hesitation in holding that there has
not been sufficient properties dedicated for the expenses of the temple. Whatever properties are found as dedicated, should be deemed to be set
apart by the family for meeting the ordinary expenses, and where any excess amount is necessary the family itself would meet the same out of its
offers. In these circumstances we feel that the observations of the learned Judges in The Madras Hindu Religious Endowments Board v. Deivanai
Ammal (1963) 2 M.L.J. 688-66 L.W. 1020, are of great applicability to the present case.
The other decision which has been brought to our notice by the appellant is the judgment of one of us (Mack J.) in C.M.A. No. 486 of 1951
where under circumstances which are very similar to the present it was held that the temple in question is a private institution and not one as defined
in S. 9 (12) of the Act. The institution which was the subject of consideration was the Sri Kailasanathar temple at Arumbakkam, Wallajah Taluk
and from the evidence it was clear that the father of the person who claimed to be the private trustee of this institution one Virasami Iyer built the
temple some 50 years ago from his own funds on his own patta land and that he subsequently became himself a sanyasi. There were indications
there that the temple has got many of the features which are common to public institutions and which we find in the present institution also. It had a
garbhagraham, a gate and number of shrines with a lingam in the centre surrounded by minor deities. There was a Gurukkal who was examined as
P.W.1 who did regular service in the temple and was paid by the owner. The case of the appellant there was supported by the President of the
Panchayat Board one Dorairaj Iyengar like the karnam in the present case, that the temple was a private one. Reliance was placed for coming to
the decision that it was a private temple on the decisions in Koman Nair v. Achutan Nair 58 Mad. 91 = 10 L.W. 428 (P.C.) and The Madras
Hindu Religious Endowments Board v. Deivanai Ammal (1963) 2 M.L.J. 688-66 L.W. 1020. We may here repeat the observations contained in
that judgment to show that Hindu sentiment is against interdicting pious and religious minded persons from worshipping even where the idol is
installed in a private house:
I do not think the Act intended to put an embargo on religious and charitable minded individuals founding private temple a intended primarily for
family worship in the middle of their own patta land.
There is a fair amount of similarity between the facts of that case and the one which we have to decide now.
On behalf of the Endowments Commissioner strong reliance is placed upon the observations of Varadachariar J. in Bhavanam Nagireddi and
Others Vs. The Board of Commissioner for Hindu Religious Endowments, but the facts of that case are quite different from what obtain here.
There was in fact a trust deed which clearly contemplated kainkaryams in the temple being undertaken by outsiders, while in the present case,
except one or two stray gifts made to the temple, there is no indication whatever of the public, as of right, are performing any kainkaryams. This
decision has been considered by the learned Judges in Deivanai Ammal''s case ( 1963) 2 M.L.J. 688-66 L.W. 1020 and we do not think it
necessary to lay any great stress on the special features of that case. We have already referred to Sitaramanujachari v. Vellatntna 1915 M. W. N
842=2 L.W. 858, on the question as to the location of the temple. However much some of the observations there may be helpful in deciding
whether an institution is public or private, the question remains that after the enactment of Madras Act II of 1927, we have to be guided by the
definition of the word ""temple'''' in the Act and not by what were considered to be the features of a public institution. The other decision in
Narayanan v. Hindu Religious Endowments Board AIR 1938 Mad. 209, which was relied upon cannot help in elucidating the points here. There
the learned Judges held that the user by the public was as of right because there were no circumstances suggesting that the user must have been
permissive or that the authorities in charge of the temple exercised any arbitrary power of exclusion. So far as that decision is concerned, there are
no observations there as to when the temple was founded and by whom. The petitioners'' family there was living within I mile or a mile of the
temple and not adjacent to the temple as in the present case. The learned Judges observe as follows:
The question of intention to dedicate place for the use of the public or of the user by the public being as of right is necessarily a matter for inference
from the nature of the institution and the nature of the user and the way the institution has been administered.
We are in agreement with those observations. In the present case the conclusion that can be drawn is not in favour of the public but as regards
the private nature of the institution.
The only other case which we need refer to is a recent decision reported in Ratnanatha Aiyar v. Board of Commissioners for Hindu Religious
Endowments (1934) 1 M.L.J. 289=66 L.W. 1024, to which one of us (Govinda Menon J.) was a party. There the question was whether a temple
belonging to a Gram Jana Sabha, which was a fluctuating body of villagers competent to hold and own property is a private temple or not. After
considering the evidence in the case, the Court came to the conclusion that there has been dedication to the public or a section of it and that as a
matter of right public are worshipping in the temple. We do not think that this decision is of any help in deciding the present case. In that case there
was clear evidence that members of the public were worshipping in the temple as a matter of right unlike the evidence in the present case which
does not establish public worship as a matter of right. On a consideration of the entire evidence we are not satisfied that there has been any
dedication of the institution to the Hindu public or to any section of it. We are also satisfied that the members of the public do not as a matter of
right worship in the temple. As we have already indicated the fact that there is no evidence forthcoming from any respectable individual other than
the disgruntled member of the family of the owner R. W. 2 shows that the people at large never cared to own this institution as a public one. The
order of the learned Judge holding that the temple is one as defined in S. 9 (12) of the Act is therefore set aside in toto and this appeal is allowed.
Each party will bear his or their own costs in this Court.