T.S. Palanisamy and Others vs The Commissioner, H.R. and C.E.

Govindarajan, J.—The unsuccessful plaintiffs are the appellants in the above appeal. The case of the appellants is that the first plaintiff''s

father installed his family deity Bhadrakaliamman on the northern portion of the line of building which were put up by him in Survey No. 39,

Thottipalayam Village, Palladam Taluk and he was doing pooja. It is not a place of public religious worship and only during festival times public are

invited for the celebration. No contribution was collected from the public or anybody. After the death of the plaintiffs'' father, the first plaintiff was

doing pooja. According to the plaintiffs, the building is registered in the name of the first plaintiff and he has been paying the house tax. The first

plaintiff''s father installed Muniappan temple in front of Bhadrakalaiamman temple. The public has not right to worship in the temple except with the

permission of the plaintiff. The application filed by the first plaintiff in A.A. No. 91 of 1976 before the Deputy Commissioner, H.R. & C.E.,

Coimbatore u/s 63-A of the Act was rejected. The appeal in A.P. No. 162 of 1977 filed before the defendant met with the same fate. So, the suit

had been filed for a decree for declaration that the Bhadrakaliamman Temple is a private temple belonging to the plaintiff and for costs. Pending

suit the first plaintiff died on 16.7.1982 and the plaintiffs 2 to 5 were impleaded as his legal heirs.

The defendant/respondent resisted the suit by filling a written statement stating that the suit temple has got all characteristics of a public temple

and it has been used as a place of public religious worship and dedicated to Hindu community. The contributions are also made by the public. The

first plaintiff had been doing poojas of the temple in his capacity as poojari and the public are allowed to worship and prasadams are being

distributed to them.

On the basis of the above pleadings, the trial court has framed four issues and held that the suit temple is not a private temple of the plaintiff, and

consequently held that the orders of the defendant cannot be set aside, and dismissed the suit.

Now, the main question crops up about the nature of the suit temple. It has to be considered in the light of the origin of the temple, the manner in

which its affairs are managed, the nature and extent of the gift received by it, the rights exercised by the devotees in regard to the worship therein,

and the consciousness of the manager and consciousness of the devotees themselves as to the public character of the temple.

The term ""temple"" is defined u/s 6(2) of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 (hereinafter called the Act"")

''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.

The Bench of this Court had an occasion to consider the question whether a particular temple is public temple or private one, in the decision

reported in Chennammal Vs. The Commissioner, for Hindu Religious and Charitable Endowments, which has held as follows:

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. In the case of a public temple the public would be entitled to

worship therein as a matter of right, while in the case of a private temple such worship by persons other than the founder''s family would be by the

sufferance of the latter. 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 dedicated to the public.

While considering the initial presumption, the Apex Court in the decision reported in T.V. Mahalinga Iyer Vs. State of Madras and Another, has

observed that so far as Tamil Nadu is concerned there is 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 the fact affirmatively and this initial presumption must be rebutted by clinching testimony and the crucial question is

as to whether the public worship in the temple as the right.

It is settled law when the origin of the temple is known as private temple, there should be a strong evidence for converting that temple into public

temple. In the present case, even according to Ex. B-2, the private origin has been established and initial presumption has been rebutted. Ex. B-2

is the report of the inspection of the defendant department in which he has stated as follows:

In spite of this report the defendant and the trial court rejected the claim of the plaintiffs mainly on the ground that the temple is situated in the

poramboke land and the public are permitted to worship the God. Such an approach by the trial court is against well-settled law. At the risk of

repetition, I have to mention that the abovesaid basis to dismiss the suit is contrary to the document of the defendant itself, viz., Ex. B-2. Even

according to Ex. B-2, the Bhadrakalaiamman was installed in the year 1906 by the plaintiffs'' father. The Inspector who prepared Ex. B-2 has

been examined as D.W. 1. So, there cannot be any doubt that the temple is a private temple in origin. Though the land is a poramboke one,

evidence is available to come to the conclusion that from 1906, it had been treated as private property and Exs. A-1 to A-26 would prove the

same to some extent.

Exs. A-1 to A-26 and Ex. B-2 prove that the temple has been treated and continued to be treated as a private temple. The evidence available

on record to show that the expenses connected with the temple are met by the plaintiffs. Even D.W. 1 in his evidence says as follows:

In the absence of any evidence regarding express dedication for the benefit of the public, the public would not be entitled to worship as a matter of

right. It is the case of the plaintiffs that during festivals the public are allowed only on invitation. This plea of the plaintiffs has been substantiated by

examining P.W. 2. No evidence is adduced by examining the member of the public to substantiate that the public can offer worship in the temple as

a matter of right.

Under these circumstances, I am of the opinion that the conclusion of the learned Subordinate Judge, Tiruppur is erroneous and the

presumption is rebutted on the basis of the materials available on record, which would establish that the temple in question is only a private temple.

In the result, the appeal is allowed and the judgment and decree of the trial court are set aside and the suit is decreed. No costs.