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Judgment
Basheer Ahmed Sayeed, J.—This appeal is against the order of the learned District Judge of Tiruchirapalli allowing the petition to set aside
the order of the Hindu Religious Endowments Board declaring the suit institution as a temple as defined by S.9 (12) of the Act. The case for the
respondent petitioners in the lower Court was that the suit temple was a private place of worship founded by the lineal ascendants of the petitioners
and the second respondent therein. A paid servant was performing the pooja in the temple. The temple was never dedicated to the public and the
public did not worship there. It was intended for the members of the family of the respondents who were devotees of Hanumarkoil and who
belonged to the Madhwa section of the Hindu community. The expenses for the suit temple are said to have been met entirely out of private funds.
No offerings or subscriptions have ever been made by or received from the public. The public had also never interfered at any time with the
management of the suit temple. When the appellant Board itself was about to take action in respect of the suit temple on the application filed by the
poojari who was a dismissed person, the respondents petitioners in the lower Court filed an application before the Board in O.A. No. 156 of
1947 to declare that the suit temple was not a temple as defined in the Act. On 10th December, 1947, the Board passed an order dismissing the
said application, O.A. No. 156 of 1947, holding that the institution known as Sri Hanumar Temple, Pudu Agraharam, Srirangam as a temple under
S.9 (12) of the Hindu Religious Endowments Act. Thereupon, the respondents herein filed O.P. No. 105 of 1948 out of which this appeal has
arisen. In the said O.P. No. 105 of 1948, the contention of the appellant Board was that the temple was a public temple where members of the
public enter and worship as of right without let or hindrance and that the land on which the temple stood was itself a gift to the fore-fathers of the
respondents by a stranger to the family and that the temple was on a public road and had all the appearances of a public temple. The second
respondent to the petition supported the Board and stated that the temple was dedicated to public worship and was not a private property. He is
one of the trustees of the temple who was at loggerheads with the petitioners before the lower Court. The learned District Judge, after taking into
consideration the documentary and the oral evidence let in on behalf of both sides, came to the conclusion that the Hanumar Koil in question was
not a temple as defined by S.9 (12) of the Act, but that it was only a place of private worship. The Hindu Religious Endowments Board has prefer
red this appeal.
The appellant Board relied upon Exs.P-1 and P-2 filed before the Board. Ex.P-1 is said to be a copy of a deed of agreement among Krishna
Rao, Ananda Rao and Rama Rao, dated 28th June, 1881. It is said to have been executed to settle the claims of the various properties acquired
by the family. In that document, reference is made to Hanumar Temple and the parties agreed not to claim the income from the trees planted by
them on the Ammamandapam road as usufruct of those trees has been left for charities and the pooja of Sri Hanumar Temple constructed by them.
The other document before the Board, Ex. P-2 is said to be a copy of the will of Rama Rayar executed in favour of Ranga Rayar, his adopted son.
This was dated 26th October, 1904. In that it is stated that the deity of Hanumar was installed and pratishta performed by Rama Rayar and his
elder brother Krishna Rayar. The mode of management of the charities with the temple has also been prescribed in the said Will. The schedule
appended to the Will gives a description of the temple in question and the trees planted on the road side as well as the moveable properties of the
temple. There two documents were considered by the Board as giving no indication that the deity in the temple was only intended for the worship
of the members of the family, of Rama Rao and others. The Board held that, simply because the members of the Madhwa Brahmin community
have got special veneration for Sri Hanumar, it could not be presumed that it was not a place of public religious worship. The Board then relied
upon the report of the Assistant Commissioner who inspected the locality and made a report giving details of the daily poojas and the free access
of the public to the temple and the worship of the public without any Set or hindrance in the temple. It is also stated in the report that the trustees
themselves were residing far away from the temple. Certain receipts also were produced before the Board to show that the temple was not exempt
from property tax, but the Board held that these receipts were not sufficient to lend support to the contention of the respondents that the institution
was not a temple as defined in the Act. On the basis of this, the Board dismissed the petition.
The learned Counsel for the Board relies upon this order of the Board which is marked as Ex. A. 2 and also on Ex.A.4 which is a deed of gift
dated 25th April 1884. This deed of gift is executed by Narayanarayar, who is a Madhwa himself, in respect of a house site in favour of three
persons who are stated to be the ancestors of present trustees. This deed says that the donor makes a gift of the house site belonging to him
mentioned in a previous cancelled gift and situated in the 42rd Lot Alavarathottam, Sitapuram village, Melurmeganam, Srirangam sub-district,
Tiruchirapalli District, which is situated on the west of the road leading to Ammamandapam. The measurement of this land is said to be 32 human
feet and l621/2 feet worth about Rs. 500 and it is gifted for the purpose of building a temple, to install the Hanumar deity therein and to conduct
pooja etc. It also recites that the temple had already been constructed on the aforesaid site and the Hanumar deity had been installed and the pooja
had actually been conducted. So, the gift is executed in respect of the aforesaid site. The point urged by the learned Counsel for the appellant
Board in respect of this document is that the site on which the temple has been built having been given by a stranger by way of gift, it must be
considered to be intended for the benefit of the entire public and not for the personal or private use of the trustees in whose favour the gift has been
executed. As against this the contention of the respondents - the contesting trustees is that the donor of the site was a relation of the then trustees
and that he was not a stranger to the family and there was nothing strange or unusual that a relation of the family of the then trustees should have
made a gift of a bit of land for the purpose of a temple to be constructed by the members of the family for their family worship. Merely because, it
was not possible for the present trustees to say how exactly the donor of the site on which the temple has been constructed is related, it would not
derogate from the true nature or character of the gift which was for a private temple to be constructed by the other members of the family. The
evidence of P.W.7 is to the effect that the donor was a distant relative of the family but not an agnate and he could not say how he was related. So
far as this point is concerned, there is no evidence to prove that this Narayanarao was a stranger to the family. On the other hand, the contents of
the gift deed, Ex.A.4 taken as a whole and read along with the evidence of P.W.7. leave the impression that the donor could not have been a
stranger but must have been a relation of the ancestors of the present trustees interested in the establishment of a temple for the benefit of the
family.
The next point that has been urged by the learned Counsel for the appellant is that the building of a temple conforms to the ordinary type of a
temple and that it is not part of a dwelling house and there fore could not be construed to be a temple intended for the private worship of the
members of the family. It is also urged that, in so far as the temple is outside the dwelling house and has been treated as an independent entity ever
since 1884 and the pooja therein has been conducted by a paid archaka, these incidents would be consistent only with a public temple and not
with a private family temple. Referring to the decision in The Madras Hindu Religious Endowments Board Vs. V.N. Deivanai Ammal by Power of
Attorney agent T.V. Mahalinga Aiyar, the learned Counsel has sought to distinguish the observations in that decision from the facts that obtained in
the present case. I do not think that it is possible for me to agree with the learned Counsel for the appellant Board in this matter. The mere fact that
the temple appears like the ordinary public temple or that a paid archaka has been in charge of the temple for the performance of the poojas and
other ceremonies would not be sufficient to make the temple a public temple. Something more has to be established to make it a public temple.
In the next place, the learned Counsel contended that the presumption in respect of temples is that they are always public temples until and
unless the contrary is proved. He relied upon Roman Nair v. Achutan Nair 58 Mad. 91 at p. 95=40 L.W. 428(P.C.) wherein it is stated that
private temples are unknown and that in order to establish a temple to be a private one, the onus is heavily upon the party claiming the temple to be
a private one to show that it is not a public temple. The decisions in Babu Bhgawan Divi v. Girijdas Saroop (1940) 1 M.L.J. 1=51 L.W. 4 (P.C.)
and Bhavanam Nagireddi v. Board of Commissioners for Hindu Religious Endowments, Madras (1987) 2 M.L.J. 485=46 L.W. 388 were relied
upon by the learned Counsel to show that unless the onus, which lay upon the party who agitates against the temple being a place of public
religious worship, was discharged, the presumption would always be that the temple, from its appearance, architectural features and the nature of
the poojas and the ceremonies etc. is a public institution and not a private one.
This would ordinarily be the case but for the fact that the law has laid down that in order that a temple should be declared to be a public one, the
requirements of S.9 (12) should be complied with. The burden, therefore, under the section, lies heavily upon the party who claims the temple to
be a public one to prove the requirements of the definition of a public temple as given in S.9 (12) of the Act. The question then is as to whether the
appellant Board has proved, on the basis of the documentary and oral evidence, that the temple is used as a place of public religious worship and
that it has been dedicated for the purpose of the Hindu community, or any section thereof, or in the alternative, that the temple has been used as of
right by the Hindu community, or any section thereof, as a place of public religious worship. When the section lays down that these requirements
have to be satisfied in order to declare the temple a public one, there is no use relying upon some presumption in regard to the public character of a
temple on the general dictum that there can be no private ownership of temples. The decision in Musammol Kamalachimi v. Mahant Prasad 13 L.
W. 156 (P. C.) related upon by the learned Counsel for the appellant will have to be considered in relation to the facts of each case, and as, has
been laid down in more than one decision, it will not be proper, nor will it be possible to lay down any hard and fast rule that could be uniformly
applied to every case of a temple. So long as S.9 (12) stands, we have to adhere to the language of that section and find out as to how far the
temple falls within the scope of the definition as given in that section.
The learned Counsel however, has invited my attention to the decision in A.K.T.K.M. Narayanan Numbu. dirt-pad v. Board of Commissioners,
for the Hindu Religious Endowments, Madras AIR 1938 Mad. 209 at 210 in which Varadachariar J. has observed that public dedication may be a
matter of inference from circumstances, and the user of the temple as of right may also be established from the circumstances of the case. Even so,
the decision in itaramanujachari v. Velamma 2 L. W. 858, 860 has also been relied upon by the learned Counsel for the appellant in support of this
contention that, in the present case, dedication of a temple to the Hindu community can be inferred easily from the facts. On a reading of the
documentary and oral evidence, 1 must observe that it is very difficult to infer either the fact of dedication or the fact of user of the temple as of
right by the Hindu community or any section thereof in the present case.
Ex. A.5 has also been relied upon by the learned Counsel for the appellant to show that the sale deed in favour of the then trustees as early as
the 14th June 1884 speaks of the trustees as mere managers of the Hanumar Temple on the road and that this description of these trustees as mere
managers or dharmakarthas would not entitle them to claim the temple as their private place of worship. I do not think that there is much substance
in this contention. The terms managers or ""trustees'' or ""dharmakarthas"" are used loosely in documents which are not written by legally trained
persons. So, nothing much turns upon the description of the claim only under Ex.A.5, namely, the vendees as mere managers. In the Tamil
language the term ""dharmakarthas"" would be equivalent to trustees.
Great reliance has been placed by the learned Counsel for the appellant on Exs.A.6, A.7 and A.8, which are respectively the plaint and the
razinama in O.S. No. 436 of 1898 on the file of the District Munsif Court, Srirangam, and the Will of Karur Ramarayar dated 11th November
1909. The plaint was filed by the sons of Anandarao against their patneral uncles. In paragraph 2 of the plaint Ex.A.6, and statements in Ex.A.7
are made to the effect that RS. 1,000 was set apart by the grandfather as an endowment for the temple, that a sum of Rs. 700 was agreed to be
paid by the first defendant to the temple. It is argued that these averments in the plaint are consistent only with the temple being a public one, that
only the right of management of that temple vested in the trustees and that they did not go to show that it was a private temple Further, the prayer
for settlement of a scheme in the plaint also was destructive of the theory that it was a family temple intended for worship of the members of the
family. Ex.A.7 the razinama however provides for the management of the temple by turns in rotation by the members of the family. A reading of
these two exhibits and the relevant portions thereof does not convince me that they establish the public nature of the temple in question. The suit
itself was filed out of a quarrel that had arisen between the rival claim ants and the mere prayer for a scheme for the management of the temple
need not necessarily be inconsistent with the private character of the temple. The razinama itself goes to prove that future management of the
temple was settled on the basis of the temple being the private institution and not a public temple. There was no association of any member of the
public for the management of the temple under the razinama decree which would have been the case if the public was really entitled to worship in
the temple as of right if the parties treated it as a public temple. It is well known that schemes are in existence in respect of private institutions,
charitable or religious, as the case may be. The mere fact that certain endowments were set apart for this temple would not also make the temple
assume the character of being a place of public worship open to the Hindu community as of right.
The next important point which has been urged by the learned Counsel for the appellant is that in 1932 the house property tax was cancelled in
respect of the temple on the ground that it was a place of public religious worship. This is borne out by Ex.B.3, but that evidence is that, apart from
the cancellation of the tax, for one period, during the rest of the period, the municipality has claimed property tax from the entire property of which
the temple forms a part. This document does not really carry the case of the appellant any farther, in the face of the evidence that is on record.
Another point that has been urged by the learned Counsel for the appellant is that the stone idol of a very large size viz., 31/2 feet high is
installed in the temple in question and the bigness of the idol is not consistent with the theory that it is a private temple. For, it is urged that in private
temples idols are not so big, nor are they made of stone, as is the case with the idol in the temple in question. It is urged that the stone idol of such
a large size is consistent only with the temple being a public temple dedicated for worship by the Hindu community or any section thereof. The
decision in Subramania Aiyar v. Punari Lakshamana Gounder (1919) M.W.N. 899, has been relied upon in support of this contention by the
learned Counsel for the appellant. It is difficult for me to say, in the circumstances of this temple, and in the absence of the relevant factor, viz.,
dedication of the temple as a place of public religious worship for the benefit of the Hindu community, or any section thereof, that the mere fact that
a big idol finds itself installed in the temple would go to make the temple a place of public religious worship. There must be clear evidence that the
temple has either been dedicated to the Hindu community as a place of religious worship or that it has been used by the Hindu community as of
right as a place of religious worship. As already observed, in the face of the unsatisfactory evidence, documentary and oral, on this point, it will not
be proper to assume from the mere fact that there was a stone idol of a big size installed in the temple, that the temple is a public temple.
Another fact has also been pressed into service by the learned Counsel for the appellant and that is the coming in and staying of the heads of
the Madhwa community in the property adjacent to the temple and also that public marriages and devaswoms have been held within the precincts
of the temple.
There is evidence further that Swamiars are permitted to come and stay in the precincts of the temple and whenever they do so, permission is
either asked for or is presumed to be given by the trustees, so also the evidence is to the effect that, when marriages or devaswoms take place,
they take place with the permission of the temple authorities, namely, the trustees, or by the standing authorisation given to the pujari to permit
these things to take place and receive some remuneration therefore, in order to augment his own resources. There is no evidence to the contra. If
such be the case, it will not really be sufficient to say that the temple assumes the character of a public temple.
On the other hand, the learned Counsel for the respondents has invited my attention to the judgments of Govinda Menon J. and Mack J, in
C.M.A. No. 166 of 1951 Since reported in 67 L.W. (S.N.) 91 dated 15th April, 1954 and C.M.A. No. 486 of 1951, dated 4th March 1954,
both of them unreported. These two judgments have been relied upon by the learned Counsel for the respondents to show that, in respect of far
stronger circumstances than those which obtain in the present case, the learned Judges refused to declare the temple involved in these two cases to
be public temples. I have gone through these two judgments and I am inclined to agree, with respect, with the principles laid down in the judgment
of Govinda Menon and Mack JJ. in C.M.A. No. 166 of 1951 Since reported in 67 L.W. (S.N.) 91 and I am of opinion that, applying those
principles to the facts of the present case, it will be only straining too much to declare the present temple as a public temple dedicated to the Hindu
community as a place of public religious worship and used by the Hindu community as of right. I think that, in view of the present Section, viz., 9
(12) of the Hindu Religious Endowments Act, the material placed before the learned District Judge was not quite sufficient nor satisfactory to
declare the temple as a public temple. I am inclined to hold that the judgment of the learned District Judge was correct and the respondents were
rightly entailed to a declaration from the learned District Judge that the temple in question was not a public one but was a private family temple
intended for the benefit of their family.
Some point is sought to be made out of the fact that the trustees have not been residing in the vicinity of the temple. But that fact is not really
material, for, it is not shown that the persons who are still managing the property have once for all abandoned their intention and idea to return to
their family house or to worship in the family temple. There is no cogent or acceptable evidence to prove that the temple now remains abandoned
by the members of the founder''s family. On the other hand the evidence is that the temple is being managed by the members of the family as its
lawful and validly appointed trustees. Therefore, there is not much point in this contention that some of the members of the family have gone and
settled elsewhere for the last ten or twelve years away from the temple. There is, on the contrary, no evidence whatsoever to prove that the temple
has been resorted to by the Hindu community as of right as urged by the Board. On the other hand, whatever may have been occasions at which
some members of the Hindu public are said to have worshipped in the temple, they appear to have done so, with the permission or initiative of one
or the other trustees of the temple and not that these people, who went there, went as of right. It must also be noted that there has been no
collection of any offerings to the temple as such in connection with any of the ceremonies. A poojari may be a paid poojari employed in any public
or private temple by the trustees thereof. The evidence of the witnesses on behalf of the Board even including the discontented trustees, who is
figuring as respondent 2 in the lower Court, does not seem to to be convincing enough to enable the Court to declare this temple as a public one.
In these circumstances the appeal is dismissed and the lower Court''s order is upheld. The respondents will be entitled to their costs from the
appellant.