JUDGMENT

Gokulakrishnan, J.

1. Plaintiff is the appellant. The suit is for setting aside the order of the defendant-Commissioner, H. R. and C. E. Department and for a declaration that the suit institution is not a temple as defined in the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959, (Tamil Nadu Act 22 of 1959.) At this appellate stage, the appellant had filed C.M.P 1796 of 1979 praying that his prayer in the plaint may be amended adding the following words—

“or in the alternative, declare that the suit institution is a denominational temple belonging to a religious denomination, viz, Thalakulam Melatheru chett Samudayam”.

By an ordered dt. 2nd April, 1979, we have amended the plaint as prayed for since we felt that the proposed amendment does not require investigation of new facts or evidence and since a lesser relief is now claimed no prejudice would be caused to the respondent by allowing the proposed amendment. Further, the respondent has also not filed any counter for the said averments made in C.M.P 1796, of 1979 nor advanced any effective Argument opposing the said amendment.

2. The plaint allegations are that the temple called Sri Deiva Vinayagar temple in Thalakulam Village, Kanyakumari District (hereinafter called the temple) is a private family religious institution having been found by the remote ancestors of the plaintiff, who endowed properties for the temple. The temple was intended exclusively for the spiritual benefit of the members of the plaintiff family, who are ascertained, and ascertainable individuals. No outsider has ever contributed anything towards the foundation of the temple or endowed properties for the temple or participated in the management of the temple or administration of its properties. It has been further averred that as the members of the family grew larger for the purpose of the effective management of the institution and its affairs it was thought desirable to devise ways and means and thus the practice of selecting a few among the members of the family who could spare time and energy with regard to the affairs of the institution came into vogue. The temple was never dedicated to the general public. The temple it surrounded by the residential houses of the numbers of the family and the properties as well and the existence of inscriptions engraved on stone blocks and pillars, and participation in the workship exclusively of members of the family are circumstances to proclaim the temple as the private one of the family. According to the plaintiff when the H. R. and C.E Department wanted the plaintiff to get a declaration about the status of the institution, O. A. No. 6 of 1966 was filed before the Deputy Commissioner H. R. and C. E., Madurai, for an enquiry in this regard and the Deputy Commissioner held that the suit Institution is not a private family temple. An appeal against the said order having failed the present suit has been instituted.

3. In the written statement the defendant contended that the suit temple is a public religious institution coming within the purview of the Act. The origin of the temple is not known and there is no deed of dedication for the foundation of the temple, The plaintiff's claim that the temple is a private family religious institution founded by remote ancestors and they had endowed properties for the institution, is not supported by any piece of reliable evidence. According to the defendant, the location of the temple is in a place easily accessible to the public, the structure of the temple, the conduct of two time poojas daily by a paid archaka, periodical festivals like Adi Nerai, Vinayaga Chathurthi etc, offering of the general Hindu public being freely accepted, and participation of the general Hindu public and their worship in the temple, clearly point to the temple as a public religious institution. The orders of the Deputy Commissioners and the Commissioner have been passed after full consideration of the materials and evidence made available in the enquiries and that the proceedings were conducted after due notice and affording sufficient opportunity to the plaintiff to substantiate his contentions. The defendant therefore stated that the orders are quite in accordance with law and the plaintiff is not entitled to set aside the order or to the declaration prayed for.

4. On the aforesaid pleadings, the following issues were framed—

1. Whether the suit temple is a private religious temple of the plaintiff's family or it is a public temple as defined in Act 22 of 1959?

2. Whether the orders of the Deputy Commissioner and the Commissioner are liable to be set aside?

3. What is the orders as to costs?

4. Other relifs.

The trial Court after considering the evidence of P.Ws 1 and 2, found that the temple was not constructed or dedicated in the year 1891 M.E but it was an ancient one and that the evidence clearly established that the contribution from all the members of the Samdayam. The trial Court found that there was absolutely no evidence either to show that the temple was constructed and dedicated by any ancestor of the plaintiff himself or by a common ancestors of the members of the Samudayam to which the plaintiff belonged and accordingly found that the temple is not a private temple of the plaintiff family.

5. The trial Court also found that the temple stands on a patta land and not on any Government poromboke, but the patta stands in the name of the deity and not in the name of any member or members of the Samudayam. It further found that the temple has got almost all the physical features of any other public temple in the District and the existence of multiple deities in the temple is an indicative feature of public character of the temple.

6. Thus after construing various documents filed in this case and the evidence on record, the trial court after stating that it is a public temple observed that the evidence on record may at the worst indicate that the temple might be a denominational temple belonging to a seotion of the Hindu community and that by no stretch of imagination it could be said that the temple is a private family temple as claimed in the plaint. Aggrieved by this judgment of the trial court, the present appeal has been filed.

7. As already stated, C.M.P No. 1796 of 1979 was filed for amendment of the plaint and it has been ordered, fiy virtue of the amendment, apart from the issues framed above, we have to decide also—“Whether the suit institution is a denominational temple belonging to a religious denomination viz, Thalakulam Melatheru Chetti Samudayam (hereinafter called the Samudayam.)

8. Mr. T. L. Rammohan, learned counsel for the appellant, took us through the judgment of the Court below and also the evidence on record. According to the counsel the temple has to be construed as a private temple since it belongs to ascertained or ascertainable members of a community. For this he draws to his support Ex.A.2, ledger, wherein the names of the members of the community are written. He would submit that the evidence on record will amply make out that the temple belonged to a religious denomination namely the Samudayam The learned counsel for the respondent on the other hand submits that the decisions rendered by the Deputy Commissioner and Commissioner, H.R and C.E were after proper appreciation of the evidence on regard and they will amply prove that the temple is a public temple and that it does not belong to the plaintiff's family or the samudayam.

9. Ex. A-1 is the Tiruppani account from 14th July, 1913 till the conducting of Kumbhishekam, wherein it is stated that the account was written by one Ananthukoonankani of Thalakulam Melatheruvu for the income and expenditure in respect of the repairs and expenditure in respect of the repairs carried out to Deivavinayaka and others Pillayarswami temple of Thalakulam Melatheruvu village. No doubt Ex. A.1 does not make out the temple belonged either to the plaintiff absolutely or to the samudayam. Ex. A.2 is a ledger wherein we find the names of the members of the samudayam, but this will not be of much use in deciding the question either way. Ex. A.3 to A.6 generally state the transactions in respect of the members of the samudayam. Ex. A.7 is the receipt book showing receipt of money from members for annual abhishekam. Likewise Ex.A.8 show the receipt of money for Vrichikachirappu. Ex.A.10 is the receipt for payment of theeruvai for temple land which establishes that the plaintiff as trustee paid such theeraval.

10. Apart from the abovesaid document, we have Ex. A.1, by which the members of the samudayam have sold property to the temple. But we are not able to find from this evidence that the samudayam had control over the temple. Ex. A12 again is a sale deed executed in favour of the temple belonging to the Thalakulam Melatheruvu or Samudayam. This specifically refers that the temple belonged the samudayam. Likewise we have reference in Ex A.13 to A.16 Then we have Ex.A.17, an agreement executed by the elected trustee to the other members of the samudayam in Thalakulam Melatheruvu Thalakulam Pakuthi, represented by P.W 2 and other members wherein these members have undertaken to manage the affairs of the temple belonging to ‘our’ samudayam, the charities, etc. Thus it is clear that as per Ex.A.17, the samudayam was managing the temple along with other Charitable endowments and there is a specific mention that the temple belongs to the samudayam. Ex.A.18 is also an agreement entered into between the members of the managing committee and others and it specifically mentions that the temple belongs to the Chetty Community of Thalakulam Melatheruvu, Ex.A.20 is again an agreement to which the plaintiff is also a party. The agreement states—

“You have been selected and appointed as trustee by the samudayam for conducting the entire affairs conneceted with the devaswoms of Deivavinayaka Pillaiar Koil and Amman Koil etc. belonging to the Chetty Community of the aforesaid Thalakulam, Melatheruvu and the properties belonging to the aforesaid samudayam and devaswoms and you have agreed to the same.”

From Ex. A.20, it is clear that the plaintiff in the suit is one of the appointed trustees for managing the temple which has been specifically described as one belonging to the samudayam. Therefore from Ex. A.20, and the other documents referred to already, there is no difficulty in coming to the conclusion that the plaintiff has the right to get the temple declared either as private temple belonging to his accestors or one belonging to the samudayam.

11. The averments in the plaint clearly states that the temple is one surrounded by residential houses of the members of the family of the Samudayam and that the same is owned by the family members occupying a well defined locality with ascertained and ascertainable individuals claiming decent from the original owners. No doubt in general the plaintiffs prays for a declaration as if the temple belongs to the plaintiff's family and that it is a private one. Nevertheless the plaint also reads that the members' accestors belong to the same family to which the plaintiff also belongs and they are living around the temple. In view of this averment we found no difficulty in entertaining the amendment to the plaint and we have ordered the same in C.M.P 1796 of 1979.

12. Now we shall discuss the legal aspect of the case. S. 6 (20) of the Act defines ‘temple’ as follows-

‘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;”

S. 107 reads—

“Nothing contained in this Act shall save as otherwise provided in S. 106 and in Cl (2) of Art. 25 of the Constitution be deemed to confer any power or imposs any duty in contravention of the rights conferred on any religious denomination or any section thereof by Art. 26 of the Constitution”.

13. A reading of S. 107 clearly shows that a religious denomination or any section thereof is entitled to have a temple and they are protected under Art. 26 of the Constitution. Even in that case, according to the definition of ‘temple’ in S. 6 (20) a temple owned by them will come within the ambit of ‘temple’ With this legal background we have to consider whether the present temple in question can be considered as one belonging to the plaintiff or at least belonging to the samudayam.

14. The trial Court has stated that the temple is not a private temple, but a public temple. While stating so, It observed that the evidence on record may at the worst indicate that the suit temple might be a denominational temple belonging to a section of the Hindu Community. From the documents which we have referred already, it is clear that claim of the plaintiff that it is a private temple cannot be sustained. We shall now discuss the oral evidence available in support of the contention of the appellant.

15. The respondent has not examined any member of the public to substantiate its case that the temple is a public one. On the other hand, P.W 1, the plaintiff himself, has stated that it belongs to the Samudayam, that the construction of the temple was started in 1913, and finished in 1916, and that Ex. A-1 shows the expenditure incurred for the said thirupani. He also produced Ex. C. 1, the report of the Commissioner and Ex. A. 3 which mentions the names of his community members. According to P.W 1, the members name stated in Ex. A. 3 are related to each other and belong to a particular community. He is also specific that the temple belongs exclusively to the Melatheruvu Chetti Community. No doubt he would say that the other Hindu Community members also visit the temple. Though in the plaint he had asked for a declaration that the temple belonged to him in his evidence he has stated that the authorities must declare the temple as one belonging to the samudayam. In his cross-examination he has stated that he is the trustee of the samudayam as well as the temple and that the community owns apart from the temple in question another Amman temple and that for both the temples and other charitable endowments there is only one Devaswom and that no other Hindu Community members will be allowed into the temple. But he would say, there is no board exhibited at the entrance of the temple prohibiting entry of other Hindu Community members into the temple. He has specifically stated that the temple was built from out of the collections made from his Community members, even though he is not able to say the exact amount collected in that respect.

16. Then we have the evidence of P.W 2 who is aged about 82 years. He was the trustee of the Devaswom in which the temple in question is also included from 1119 to 1126. M.E According to him, the land in which the temple is built belongs to the Samudayam. In his cross-examination this witness has stated that among the Chetti community Melatheru Chettis are a separate denomination and there is also another denomination called Keelatheru Chettis and one more called Eraniel Melatheru Chetti Community.

17. From the evidence of P.W 1 and 2, it is seen that Melatheru Chetti Community is a separate religious denomination and the Community or Samudayam owns the temple absolutely and it is managing the temple by donations from the members of that Community. This management dates back to 1913. The documents referred to supra are more than 30 years old which support the case that the temple was in the management of the Samudayam for over 30 years exclusively and there is absolutely no evidence contra to show that any other religious group either contributed or managed the temple.

18. D.W 1, the Inspector, H.R and C.E Department, has deposed that when he went to the temple evening pooja was going on, that people belong to Nadar, Vellalar, Chetti Community of Thalakulam were attending the pooja and there was no restriction imposed as regards entrance of the Hindus into the temple. He also stated that the temple by its appearance looked as if it is a public temple. In cross-examination he denied that only people residing at Thalakulam Melatheru have right to participate in the pooja at the temple.

19. D.W 2 is another Inspector, of H.R and C.E Department. He also inspected the temple and enquired from the neighbours thereof as to the nature of the temple and found that the temple is a public temple. This witness states that the temple is an old one and that he was not able to find out when and who built it. In his cross-examination he has stated that there are only chettiars residing at Melatheru and no other caste people are residing there. This witness in O.A 6/66 before the Deputy Commissioner, H.R and C.E was stated there was no other persons except the petitioner's (appellant) family has given money or property to the temple and that he did not know who locks the temple and takes away the key. He has further stated that there is no kodimaram, or hundial, or urchava idols in the temple. In his re-examination he reiterated that on local enquiry he found that the temple is not a private temple. From the evidence of D.Ws 1 and 2, we find that apart from Melatheru Chetti community other Hindus also participated in the poojas. These witnesses have just gone for inspection purposes. The mere fact that Hindus, apart from Melatheru Chetti Community, also participated in the poojas will not spell out that the temple belonged to the public in general and not to any particular community.

20. In this connection the learned counsel brought to our notice the decision of the Supreme Court in Narasimha Prabhu v. Asst. Commissioner H.R and C.E.,1 which states—

“Even on the findings recorded by the Subordinate Judge, this would be a temple dedicated to or for the benefit of a section of the Hindu community and as such covered by the definition. The High Court reversed the decision of the Subordinate Judge and held that facts of the present case lend support to the conclusion that the temple must have been dedicated for the benefit of and used by the Hindu community and is being used by them as of right, as a place of public religious worship’. The facts that weighed with the High Court were that Hindu generally came to worship in the temple and were not turned away and that when the deity is taken out in procession, members of the Hindu community other than Goud Saraswat Brahmins also offer ‘araties’. The claim made by some of the witnesses for the defendants that they used to consult the oracle in the temple also seemed to the High Court a significant circumstance. But the High Court appears to have overlooked that these witnesses admitted that before consulting the oracle the manager must be hold of it and it is he who could consult on their behalf”. The High Court has recorded a finding that ‘numerous endowments’ have been made by Hindus not belong to Goud Saraswat Brahmin community. This is not however supported by the evidence in the case. Another circumstance which impressed the High Court was the recital in an award, (Ex. A. 13), which was made part of the decree, (Ex. A. 3) in a previous proceeding between the members of the Goud Saraswat Brahmin community themselves, that the trustees of the temple should place the accounts of income and expenditure before the ‘general body’. This ‘general body’ according to the High Court implied the Hindu community generally. In the context of the award, (Ex. 13), it is however clear that the ‘general body’ mentioned therein could only refer to the members of the Good Saraswat Brahmin community because the proceeding concluded by the decree was confined to the members of the community. The law is now well settled that ‘the mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer therefrom dedication to the public The value of such public user as evidence of dedication depend on the circumstances which give strength to the inference that the user was as of right (See Bihar State Board of Religious trust, Patna v. Mahant Sri Bisehshwardas . 1971-3-S.C.R 680.. We find that the circumstances disclosed in evidence in this case do not support the inference that Hindus generally used the temple as a place of worship as of right”.

It is clear from the above extract that the law is now well settled that the mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer therefrom dediction to the public.

21. As far as the present case is concerned, the evidence of D.Ws 1 and 2 has not in any way advanced the case of the respondent for the purpose of declaring the temple as a public one. On the other hand, the evidence of P.Ws 1 and 2 coupled with the documentary evidence, Exs. A1 to A20, which we have discussed already, amply proves that the Samudayam alone has right in the temple even though the Hindus in that place generally visit the temple for worship. The Supreme Court decision referred to above squarely applies to the facts of the present case.

22. For all these reasons we hold that the temple in question will have only sectional character and we declare that the suit institution belongs to the religious denomination called Thalakulam Melatheru Chetti Samudayam. The appeal is allowed as per the amended prayer as ordered in C.M.P No. 1796 of 1979 by this Court, with costs.

VCS