Judgement

SATYANARAYANA RAO, J. :- The plaintiff who is the appellant herein laid this suit to establish his right to certain lands described in the plaint schedule and also to have it declared that the temple in B-schedule is a private one and that the order of the District Court in O. P. No. 23 of 1946 does not bind him. The suit was dismissed by the learned Subordinate Judge. The properties now claimed in the suit were owned by his adoptive father one Indrakanti Seshavadhanulu and were his self-acquired properties. Some of the properties were inherited by Seshavadhanulu front his brother, Rangavadhanulu, who was also the founder of the temple. He claimed the suit properties as the adopted son of Seshavadhanulu and also by adverse possession and his contention in the suit was that the temple was a private temple and not a public one and therefore the Madras Hindu Religious Endowments Board had no right to interfere with its administration and recover possession of the property in pursuance of the order in O. P. No. 23 of 1946, District Court, Kurnool.

2. The plaintiff was adopted by Seshavadhanulu sometime before 16th May, 1919. On that day, Seshavadhanulu executed Exhibit A-1 which is styled an adoption deed and in which he acknowledged the fact that the plaintiff was taken in adoption and that he had performed dattahomam and upanayanam. Paragraph 3 of the deed refers to certain gifts of immoveable properties which he had made by that time and in respect of which the plaintiff, as the adopted son, would have no right Paragraph 4 of the deed refers to the immoveable properties which were described in the schedule to the deed as well as paurohitam right which Seshavadhanulu had. It was stated in that paragraph that the plaintiff as the adopted son should be entitled to all the rights which Seshavadhanulu possessed just like his son. The schedule excludes the properties which are now in dispute. The suit temple was founded, as stated above, by Rangavadhanulu, the brother of Seshavadhanulu. Provision had been made for, carrying on worship in the temple and to that end, on 24th June, 1919, two documents were executed. Exhibit B-1 was executed by the natural father of the plaintiff on behalf of the minor plaintiff in favour of one Panthangi Bheemarao. Under this document which is styled a "khararnama", it was enjoined that Bheemarao should carry on the worship in the temple and be in possession of the properties specified in the document and his duties were also specified. It was also further provided that in case Bheemarao failed to carry out the duties which were enjoined on him under the document, he should forfeit his right to the property and that the properties would be taken back to make some other arrangement for the carrying out of the worship and the services in the temple. The counter-part of this kharar executed by Bheemarao in favour of the natural father of the plaintiff is Exhibit A-10 under which Bheemarao agreed to carry out the conditions of the gift. On 26th June, 1919, Seshavadhanulu gifted to Bheemarao under Exhibit A-2 a house in Kurnool. Thereafter, Seshavadhanulu seems to have left the place of his residence, Kurnool, to Banaras and though he was not initiated into the order of sanyasis, he assumed the name of Maheswaranandathirithaswami. He returned to Kurnool in 1923 and as Bheemarao was anxious that his rights to the property already gifted should be secured from the owner of the properties, a khararnama was executed on 27th April, 1923, Exhibit B-2, by Seshavadhanulu. In the document, it was stated that the Siva temple in Kummari Street on the banks of the river Thungabhadra in Kurnoolpeta and the lands described in the schedule appended to the deed were acquired by his undivided brother Rangavadhanulu as his self-acquisitions and after his death they devolved upon him by heirship and the temple was known as Rangavadhanuluvari temple. He acknowledged the adoption of the plaintiff by him and took care to mention in the deed that the temple and the schedule properties were not included in the deed Exhibit A-1, as he had the intention of conveying the same to a proper person who would perform the poojas and would properly conduct the worship in Siva temple. With this end in view on 24th June, 1919, a khararnama, Exhibit B-1, was executed by the natural father of the plaintiff acting as his guardian and Bheemarao was put in possession of the properties. He also adverted to the fact that at the request of Bheemarao, he executed this document to secure his title to the properties. This document again repeats the conditions of the grant as in Exhibit B-1 and A-10. It also refers to Dharma Chatrams (choultries) etc., in the temple and which was put in possession of Bheemarao who was enjoined to carry out the direction of feeding Brahmins in the month of Sravana as in Exhibit B-l. We do not know the exact date of death of Seshavadhanulu.

3. In 1927, the plaintiff instituted O. S. No. 17 of 1927, Sub-Court, Kurnool, against Bheemarao and others to have it declared that he was absolute owner of the properties which are now the subject-matter of the suit on the basis that the kharars of 24th June, 1919 and 27th April, 1923, were not valid and did not bind him and also for recovery of possession of the properties. This suit was compromised on 22nd July, 1930 and Bheemarao retaining for himself about acres 6-00 of land relinquished all his rights in the other properties covered by the previous kharars in favour of the plaintiff and got himself exonerated from his liability to do the poojas and repairs in the temple as per the terms of the kharars and the plaintiff himself undertook thereafter to conduct the said poojas. The compromise decree is Exhibit A-3. Plaintiff now alleges that in pursuance of this compromise he came into possession of the lands and thereafter he was leasing out the properties to tenants.

4. In 1946, the two trustees appointed by the Endowments Board filed an application under S. 78 of the Hindu Religious Endowments Act for recovery of possession of the properties from the plaintiff and his tenants and in this petition, the history : of the temple and the various transactions relating to the suit properties were set out and it was claimed that the properties were endowed to the temple and that the trustees were entitled to recover possession of the same. After enquiry, this petition was ordered in favour of the trustees by the learned District Judge, Kurnool, on 30th November, 1946, Exhibit A-20. This suit was instituted by the plaintiff immediately thereafter impleading as parties to it the Endowments Board as the 1st defendant and the trustees as defendants 2 and 3.

5. The defence of the trustees and the Board; was that the plaintiff had no right to the properties and they constituted a religious endowment for the temple, that the temple was not a private temple but was dedicated to the public and that the order of the learned District Judge in the Original Petition was correct. The learned Subordinate Judge, upheld the contentions of the defendants and dismissed the plaintiffs suit. In this appeal, the contentions raised on behalf of the appellant were : firstly, that the deed of adoption vested in the plaintiff a right not only to the properties specified in the deed but also to the properties now in suit; secondly, that the grant in favour of Bheemarao was a personal grant and therefore the temple had no claim; thirdly, that after the compromise decree, plaintiff was in adverse possession of the properties from 1930 and therefore perfected an absolute title to the properties under the law of limitation; and fourthly, that the temple is a private temple and not a "temple" within the meaning of the definition in the Hindu Religious Endowments Act.

6. The answer to the first question turns upon the interpretation of the deed of adoption Exhibit A-1. It must be remembered that it is the common case of the parties that the properties now in dispute and the properties covered by Exhibit A-1 were the self-acquired properties of Seshavadhanulu, the adoptive father of the plaintiff. In paragraph 4 of Exhibit A-1, all that the adoptive father stated was nothing more than the legal effect of the adoption made by him, namely, that the adopted boy would have the same rights in the properties of the adoptive father which are his self-acquired properties as a natural son would have. It did not vest in the plaintiff any present right in the properties as they were self-acquired properties of the father. The situation would, however, have been different if the properties were joint family properties in which event the plaintiff immediately after his adoption would get a right in the properties jointly with his father. The deed, therefore, did not vest any present right in the self-acquired properties of Seshavadhanulu, and what is more significant is, that the suit properties which the adoptive father intended to give away to the temple were not included in the document. On no conceivable footing, therefore, can the plaintiff claim the properties and we find that immediately after the document, the two kharars of 24th June, 1919, Exhibits A-10 and B-1, came into existence which make it clear that the intention of Seshavadhanulu was to endow these properties to the temple, in order to make provision for the carrying on of the worship to the temple. The title of the donee was perfected by Seshavahanulu himself executing a deed after his return from Banaras on 27th April, 1923, Exhibit B-2. Seshavadhanulu. who continued to be the owner of the properties, had an undoubted right to make the alienation under Exhibit B-2 without any interdiction by the plaintiff, as the properties were his self-acquired properties. The assumption of the name of a Sanyasi could not change his status and bring about a civil death unless there was initiation by a Guru into the order of Sanyasis by the appropriate Mantra and there is no evidence that this was done either at Banaras or at Kurnool and therefore there is no civil death of Seshavadhanulu by the time of Exhibit B-2. He therefore had every right to execute the deed Exhibit B-2. The contention therefore that Seshavadhanulu had no right to execute the document is without substance.

7. The second ground, that it is a personal grant to Bheemarao and therefore the temple has no right, is equally without substance. The document provides that if Bheemrao failed to carry out any of the terms of the grant, the donor was entitled to take back possession of the property and make other arrangements for the continuous carrying out of the worship in the temple. There is no reverter back of the properties to the family of the donor. The object in executing the deed was undoubtedly to benefit the temple, by providing for the cost of the worship and also for the remuneration of the services, by giving land to the donee. If he failed to carry out, other arrangements have to be made and if there is no person to carry out the worship as provided in the deed, it is open to the trustees to take steps to recover possession of the property from persons who have no right to remain in possession and make other arrangements.

8. The third ground that the plaintiff had acquired title by adverse possession is wholly untenable. It is no doubt true that by the terms of the compromise of 1930, the plaintiff got rid of Bheemarao; but the compromise decree itself provides that while Bheemarao was exonerated from his liability to carry out the pooja in the temple, the plaintiff himself undertook to conduct the said pooja, etc. In other words, it means that he entered into possession of the lands as a substitute for Bheemarao, with a view to carry out the terms of the grant. Having entered into possession of the property in that character and with that undertaking, his possession, assuming that the plaintiff was able to establish continuous possession of the properties, (which itself seems to be doubtful on the evidence), cannot be adverse to the trust and there is also the further fact that for faslis 1335 to 1342 he paid the contribution to the Endowments Board. It is no doubt true that he lodged a protest and filed an objection petition before the Board objecting to the levy of contribution from him, but the objection was over-ruled and the Board passed an order on 16th August, 1936, adversely to the plaintiff confirming the demands made by the Board for contribution for faslis 1335 to 1342. Thereafter, the machinary for the recovery of the contribution was put into force and on 14th December, 1936 the plaintiff sent by money order the amount to the Tahsildar which was received by him on 18th December, 1936. He intended to file suit to have the legality of the order tested in a suit but he never took any steps in that direction. The result was, we find that as late as December, 1936, the plaintiff paid the contribution in respect of the properties in his possession as properties belonging to the temple. This date is undoubtedly within twelve years from the date of the institution of the suit. The contention must fail and the plaintiffs possession was not adverse to the temple.

9. Lastly, there remains the question, whether the suit temple is a private one or one dedicated to the public or held out by the founder for the use of the public. A temple is defined in the Madras Hindu Religious Endowments Act (Act II of 1927) 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 religious worship."

That the suit temple was a place of religious worship cannot be doubted. There are instances which have come to the notice of Courts where samadhis became places of religious worship as in Ratnavelu Mudaliar v. Commr. for Hindu Religious and Charitable Endowments (1953) 2 MLJ 574 : (AIR 1954 Mad 398) (A) and sometimes heroes were also deified and their idols became objects of religious worship on the ground that

"if they (people) believe in its religious efficacy, in the sense that by such worship, they are making themselves the object of the bounty of some superhuman power, it must be regarded as religious worship."

In such a case the worship need not conform to any particular school of Agama Sastras; but the point has to be decided having regard to the views of the class of people who partake in the worship. See Ratnavelu Mudaliar v. Commissioner for Hindu Religious and Charitable Endowments (A).

10. The more difficult question is to formulate, with precision, the date on which an inference could legitimately be drawn, whether a temple was dedicated to the public and was held out to the public as a public temple. If there is a deed of dedication, the problem does not present much difficulty as the intention of the founder may be gathered from the language of the document. Very often, there is no need of dedication and therefore the question becomes somewhat difficult to determine.

The question whether a temple was dedicated to the public or not is one fact and the inference has to be drawn from proved facts; but what are the facts on which an inference one way or the other may be drawn? Here we enter into a region where it is not possible to formulate exhaustively facts which may be considered as essential for drawing. an inference one way or the other.

11. Mr. Seshachalapathi, the learned advocate for the Board, cited before us a number, of cases to throw light on the problem and wanted to cite some more but we thought it was unnecessary. The decisions would establish that the learned Judges attached importance now to one circumstance and now to another but on ultimate analysis the decisions do not, in our opinion, present any conflict in the views expressed by the learned Judges either of the High Court or of the Privy Council.

If once it is shown that the temple was a private temple, the other facts which may be of help, in inferring that the temple was a public one, may not assume importance in that direction. If, however, the origin of the temple is lost in antiquity and inference is to be drawn by the long user established in the case, the factors which have weighed with the learned Judges in some of the decisions will be of immense help. If this distinction is borne in mind, we think that the question raised does not present much difficulty.

12. Learned advocate for the appellant placed strong reliance on the observation of the Judicial Committee in Babu Bhagwan Din v. Gir Har Saroop, (1940) 1 MLJ 1 : LR 67 IA 1 : (AIR 1940 PC 7 (B)). In order to belittle the importance of the evidence adduced on behalf of the defendants, that the public have been using it without objection, as a place of public religious worship, the Privy Council observed at page 10 of MLJ : (at p. 11 of AIR), in that report as follows :

"Worshippers are naturally welcome at a temple because of the offerings they bring and the repute they give to the idol : they do not have to be turned away on pain of forfeiture of the temple property as having become property belonging to a public trust. Facts and circumstances, in order to be accepted as sufficient proof of dedication of a temple as a public temple, must be considered in their historical setting in such a case as the present ; and dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to any individual or family.

Such an inference if made from the fact of user by the public is hazardous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away; and as worship generally implies offerings of some kind it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. Thus in Mundancheri Koman v. Achutan Nair, (67 MLJ 788 : 61 IA 405 : ILR 58 Mad 91 : (AIR 1934 PC 280 (C)), the Board expressed itself as being slow to act on the mere fact of the public having been freely admitted to a temple. The value of public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right."

And on this reasoning, their Lordships of the Judicial Committee held that the case before them was totally different from the case in Pujari Lakshmana Goundan v. Subramanya Aiyar, 29 Cal WN 112 : (AIR 1924 PC 44) (D), which was an appeal from the High Court of Madras against the decision of Subramania Aiyar v. Pujari Lakshmana Goundan, 1919 Mad WN 899 : (AIR 1920 Mad 42) (FB) (E). The observations of the Judicial Committee must be understood in the light of the historical background in which the case had to be considered. At its inception and for a long time, the temple was a private temple as is evident from the conclusion of their Lordships at the bottom of page 9 of the said report in these terms :

"The general effect of the evidence is that family have treated the temple as family property dividing the various forms of profit whether offerings or rents, closing it so as to exclude the public from worship when marriage or other ceremonies required the attendance of the members of the family at its original home, and erecting Samadhis to the honour of its dead. In these circumstances it is not enough, in their Lordships opinion, to deprive the family of their private property to show that Hindus willing to worship have never been turned away or even that the deity has acquired considerable popularity among Hindus of the locality or among persons resorting to the annual Mela."

To establish, therefore, that, what was all along been a private temple, was held out to the public as a public temple, much stronger evidence than mere user by the public is needed. The user by the public in that setting loses its importance to suggest the inference that it was a public temple. To a similar category must be assigned the decision of the Madras High Court in The Madras Hindu Religious Endowments Board v. V. N. Deivani Ammal, (1953) 2 MLJ 688 : (AIR 1954 Mad 482) (F), in which case the circumstances, that there was an Utsava idol and there were processions are generally indicative of the fact that it is a public temple, lost its importance because the temple was founded very recently in the year 1919 and there was no deed of dedication.

The temple, it must be observed in that case, had all the appearance of public temple such as gopuram, etc., but still the learned judges held, in the absence of any property dedicated for the maintenance of worship in the temple, that the temple was not a public one. In our opinion, the position was tersely stated by Varadachariar, J., in Narayanan v. Hindu R. E. Board, AIR 1938 Mad 209 (G), where the learned Judge after referring to Mundamcheri Koman v. Achutan Nair (C), and Subramania Aiyar v. Pujari Lakshmana Goundan (E), adverted to the definition of temple in the Endowments Act, and observed as follows :

"According to this definition, the user by the public for the purpose of religious worship has to be proved as a fact. The question of intention to dedicate the 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. In the case already referred to, their Lordships of the Privy Council lay stress upon the fact of the temple having been used as a place of public religious worship, though they observe that if there had been sufficient reason for holding that the temple and its endowments were originally dedicated for the tarwad and were private trusts, their Lordships would have been slow to hold that the admission of the public in later times would affect the private character of the trusts.

This observation suggests that once a long course of user by the public for the purpose of worship is established, and the facts of a separate endowment in trust for the deity is also proved, it is fair to infer that the institution must have been dedicated for user by the public for the purpose of worship is established, and the facts of a separate endowment user by the public (unless the contrary is established) - particularly when the character of the temple, its construction, the arrangement of the various parts of the temple and the nature of the deities installed there are similar to what obtains in admittedly public temples. Similarly, when user by the public generally to the extent to which there is a worshipping public in the locality is established, it is not unreasonable to presume that the user by the public was as of right, unless there are circumstances clearly suggesting that the user must have been permissive or that the authorities in charge of the temple have exercised such arbitrary power of exclusion that it can only be ascribed to the private character of the institution."

With great respect to the learned Judge, if we may say so, the position has been clearly and succinctly stated. In view of this decision, it is unnecessary for us to deal with the facts of the other decisions to which our attention was invited by the learned counsel for the respondents, cases like Sitaramanujachari v. Kanduri Vellamma, 2 Mad LW 858 : (AIR 1916 Mad 462) (H)), and Subramania Aiyar v. Pujari Lakshmana Goundan, (E), which were confirmed by the Privy Council in Lakshmana v. Subramania (D), and the recent judgment of this Court in C.M.A. No. 134 of 1950 (I).

The various factors which may be considered as establishing dedication to the public, were summarised also by Mukherjea in his Book on Hindu Law of Religious and Charitable Trust" (published recently) at page 186. Of course, unlike the temples in Bengal, in the South, there is a presumption that the temples are public at which all Hindus might worship. In Malabar, the position is somewhat different. If there is long user by the public and if there are other circumstances such as taking the utsava deity in procession, endowment of properties to the temple by strangers, collection of subscriptions for the repairs or other purposes of the temple, the fact that the temple is not attached to the home of the founder, the attachment of a Dharmasala or choultry for feeding the worshippers on occasions or for feeding a section of the public, these and other circumstances which have been considered by the learned Judges must be taken cumulatively and their effect considered in drawing the inference.

13. In the present case, the documents themselves, Exhibits B-1 and B-2, contain a clear indication that it was intended to be a public temple. The donor provides for the samaradhana in the dharma chatram attached to the temple for a section of the public and the location of the temple is on the bank of Tungabhadra river and was not attached to the donors house. There is no evidence that it was constructed on any land belonging to the founder. It is in evidence of the witnesses examined on behalf of the defendants that all the Hindus are allowed to enter the temple and worship in it.

There is also the fact established by evidence that public subscriptions were raised by one Muthiah Doss, a devotee for repairing the temple and he resided in the chatram for five or six years, when the devotees entered the temple at the time of the Sivaratri festival. A dwajasthambham was also erected later by Muthiah Doss. That Seshavarhanulu was a highly religious-minded person and was a devotee of Siva is amply borne out by evidence and as observed in Pujari Lakshmana Goundan v. Subramanya Aiyar (D), a devotee of such catholic views would not have restricted the worship in the temple to his family members alone and would have intended that the benefit of the blessings of God should be available to all who visited the temple. For these reasons, we agree with the learned Subordinate Judge in his conclusion that the suit temple is a public temple and not a private one.

14. In the result, the appeal fails, and is dismissed with costs of the first respondent. The trustees (Respondents 2 and 3) may reimburse themselves for the costs from the trust Estate.

Appeal dismissed.