GANESAN J.

The suit cut of which the appeal arises was instituted by the Madurai Sourashtra Sabha for a declarstion that temple of Sri Prasanna Verkateswaraswami situated in Sourashtra Krishnan Koil Street, Madurai Town is not a temple as defined in the Madras Hindu Religious and Charitable Endowments (Act 22 of 1959) and for getting aside the order of the Commissioner, Hindu Religions and Charitable Endowments (Administration) Department passed in A.P. No. 46 of 1961 dated 3rd November 1961.

It was alleged in the plaint that the temple in question was founded about 300 years ago by an Association of some families of Sourashtras residing in Sourashtra Krishnaa Koil Street, Madurai Town. On 6th March 1900, the representatives of the said families had their Association registered under the name and style of “Madural Sourashtra Sabha” under S. 26 of the Indian Companies Act, one of the objects of the Sabha being to administer the affairs of the temple in question, to contribute funds to constru ct new buildings and to repair and maintain the same and to conduct utsavams and to make Jewels, vahanams etc., for the temple. The temple was managed by the Devasthanam Committee of the plaintiff-Sabha. Apart from a few items of properties endowed by some members of the Sabha for the performance of some utsavams to the deity, the expenses of maintenance and management of the temples were met solely from the funds of the plaintiff-Sabha which owned the temple in question. The suit temple was intended to be a place of worship only for the members of the plaintiff-Sabha and no member of the public was entitled to or worshipped as a matter of right at the temple. The temple was not used as a place of public religious worship and was sot 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. Hence, the temple is Act liable to the jurisdiction and control of the authorities under the Madras Hindu Religious and Charitable Endowments Act, the Plaintiff-Sabha is Act liable to pay any contribution fees or audit fees to the Hindu Religious and Charitable Endowments authorities; nor are they bound to submit budget statements for approval by those authorities.

On a report Ex. B.6 dated 10th March 1959 submitted by as Inspector to the Assistant Commissioner of the Hindu Religious and charitable Endowments, Madurai, the Deputy Commissioner for Hindu Religious and Charitable Endowments (Administration) Department, Madurai held an enquiry and passed orders, Exs. B.1 and B-2, on 23rd December 1960 holding that the temple in question was a public temple as defined in S. 6 (2) of the Act of 1959. The plaintiff's appeal before the Commissioner was dismissed on 23rd November 1961. Hence the suit.

The Commissioner, Hindu, Religious and Charitable Endowments, Madras, the defendant in the suit contended that the tempts in question was a temple as defined under S. 6 (2) of the Act of 1959.

The learned trial Judge had upheld the defendant's contention for the following reasons. There was no satisfactory evidence that the temple in question had been built by the plaintiff-Sabha or its predecessor. The plaintiff's contention that the temple in question was open to worship only to the members of the Sabha and not to members of the publicis belled by the evidence in the case. Ex. B-8 which is a copy of the deposition of one Narasimha Iyengar, not a Sourashtra Brahmin, now dead, establishes that he had visited the suit temple for worship and that he had also seen worshippers, evidently not members of the Sabha, getting archanas performed through the Battar. Reliance was placed on the admissions made in Ex. B-3 a register of properties maintained by the plaintiff-Sabha as required by S. 38 of the Hindu Religious and Charitable Endowments Act of 1927. At page 44 of Ex. B.3 there is a distinct rocital that the temple was used as a place of worship by the Sourashtra Community. This clearly shows that the temple had been used by the Seurashtra Community which is part of the general public. The temple in question has all the insignia of a pablic temple, viz. Dwajastaambam, Ballpeadam and several Sannadhis in the temple. Processions of the deities in temple were taken out on the festive occasions. The evidence of P.W. 1 the Secretary of the plaintiff-Sabba establishes that for years together till the dispute arose, the plaintiff-Sabha had been submitting accounts and paying contributions to the Endowment Beard. No Municipal tax or land fax was paid to the Municipality and the Government respectively in respect of the site on which the temple stands. Significantly enough Ex. A-3 which is said to be the Memorandum of Association and Rules of the plaintiff Sabaa does not claim that the temple in question is a property of the plaintiff-Sabha. Several Sourashtras have endowed properties for the performance of Kattalais in the temple, though the endowments have been made to the plaintiff Sabha.

On the whole, we are satisfied that the conclusion arrived at by the trial court as to the character of the temple in question is correct. Indeed learned counsel or the plaintiff-appellant, after a strenuous attempt gave up his extreme contention that the temple in question is the property of the plaintiff-Sabha and that it was not a place of pulio religious worship dedicated to the Sourashtra Community. He, however, stressed that the temple in question is a denominational temple governed by the provisions of Article 26 of the Constitution. The only question which was pressed before us is whether the temple in question is a denominational temple, or not.

On a consideration of the entire evidence, the circumstances and probabilities of this case, we have come to the conclusion that the temple in question is a denominational temple which will be governed by Article 26 (a) and (b) of she Constitution. Article 26 reads thus:

"Subject to public order, morality and health, every religious denomination or any section thereof shall have the right."

(a) to establish and maintain institutions for religious and charitable purposes,

(b) to manage its own affairs in matters of rellgion.”

Though S. 6 of the Hindu Religious Endowments Act of 1959 does not purport to define a denominational temple, station 51 which deals with appointments of trustees, the Commissioner or the Area Committee are directed to have due regard to the claim of parsons belonging to the religious denomination for whose benefit the institution concerned is chiefy intended or maintained. A Division Bench of this High Court had made the following observances relating to denominational temples in M.R. Venkatachalapathy and another v. Deputy Commissioner H.R. & C.E. Thanjavur and another Writ Petitions Nos. 804 and 805 of 1967.

"To constitute a denominational temple, the use of the temple and the worship therein seed not be confined to the members of that denomination. But, if the temple belonged to the religious denomination of Sourashtrs and if that community was entitled to manage the temple, it would be a denominational religious institutions."

It was also observed that the fact, the temple claimed by the Sourashtras of Kumbakonam is a public temple as defined by the Act, in no way affects the determination of the question whether it is a denominational temple or not. We respectfully agree with these observations.

In order to establish that the temple in question is governed by the provisions of Article 26 (a) and (b) of the Constitution, it behoves the plaintiff to establish that the temple in question belongs to the Sonrashtra Hind Community of Madurai, that the said Sourashtra Community is a religious denomination and that the said community has the right to manage the affairs of the temple.

Admittedly there is no direct evidence in this case that the temple in question belongs to the Sourashtra Hindu a Community of Madurai. Indeed, the plaintiff-appellant's case in the trial court was that an Association of a few Sonrashtra families living in Sonrashtra Krlshnaa Koil Street had built the same about 300 years ago and that the temple belongs exclusively to the plaintiff-Seurashtra Sabha and its members. There is no direct evidence as to when and by whom the temple was constructed. We are however satisfied from the circumstances and probabilities of the case that the temple in Question ought to have been built only by the Soarasbtra Hindu Community. It appears to be probable that the temple in question had been built by a few leading members of the Sonrashtra Hindu Community at Madurai about 300 years ago. There is no basis whatsoever for making any surmise that the temple had been built by the entire public constituting all the communities living in Madurai Town out of public subscriptions; It is significant that none of the other communities living in Madurai Town had at any time chosen to lay claim to the suit temple as their own and this circumstance strongly probabilist the contention that the suit temple must have been built only by the members of the Soarashtra Hindu Community at Madarai. It is seen from Ex. B-10 a letter written by one C.R. Mahadevan, Honorary Secretary of the plaintiff-Sourashtra Sabha on 29th March 1954 that he had claimed that the suit temple was founded about 300 years ago and is a community temple belonging to the members of the Soarashtra Community, Madurai alone.

We are also impressed with the circumstances that the suit temple had been managed through-oat only by the leading members of the Soarashtra Community who had formed thorn selves into an Association of their own for the purpose of maintaining and managing the suit temple, apart from other secular purposes. The agreement Ex. A-4 dated 30th March, 1871 executed by two masons is in favour of the suit temple represented by Thada Mual Kamatchia Vagaiyara, admittedly members of the Soarashtra Community of Madurai and it relates to Kalmcmdapam work in the suit temple. Under Ex. A-5 an application of the year 1871 sent by Madura Thatta Rangasami Chettl, admittedly a Sourashtra Brahmin of Madurai, a claim was made by the said gentleman that his father had built Naoharamma temple which is admittedly attached to the suit temple. Ex. A-6 a deed of endowment dated 8th June, 1882 shown that the endowment had been made by Sankaranayanan Chetty, admittedly a Soureshtra Brahmin of Madurai in favour of the suit temple represented by the Temple Sthanikar Narayana Iyengar and three ethers.

Nor is it disputed that the appellant-Sourashtra Sabha had been throughout managing and administering the affairs of the suit temple from its inception through a Devasthanam Committee elected by the members of the Sabha. Ex. A-7 dated 11th September, 1896 a receipt passed by goldsmiths is in respect of some jewels made for the suit temple and the receipt admittedly is in favour of a member of the temple Devasthanara Committee of the Soarashtra Sabha, Madurai. Exs. A-13, A-14, A-18 and A-16 are the ledgers for the years 1932, 1933, 1934, 1935, 1936, 1937 and 1957 and 1958 and Exs. A-17 and A-21 and the balance sheets of the receipts and expenses of the appellant-Sabha for the years 1948 and 1958 respectively. They clearly establish that it was the appellant-Sabha which alone had been in active management of the suit temple and its affairs. Renovations and contraction of buildings had been made in the temple premises, utsavams had been regularly conducted, elephants and vahanams had been maintained, all by the appellant-Sabha exclusively. The lands belonging to the temple had also been exclusively managed by the appellant-Sabha. All these documents clearly show that the appellant-Sabha had been scrupulously carrying eat one of the objects of the Association envisaged by Ex. B-7, the Memorandum and Articles of Association of the Sabha. The document shows that one of the objects was to give financial assistance for performing the duties relating to the suit temple, to effect the buildings connected with it, to effect repairs to them, to protect them, to make ornaments, to make Vananadnl and make such ether things necessary for them to conduct festivals.

We are therefore clear that the suit temple had been built by the leading members of the Sourashtra Hindu Community at Madurai representing the said community and that the temple therefore belongs to the Sourashtra Hindu Community, Madurai We ere equally satisfied on the evidence on record that the Sourashtra Hindu Community at Madurai alone has the right to manage and administer the suit temple. We have already set out the documentary evidence which clinchingly shows that the suit temple had been managed throughout by the appellant-Sourashtra-Sabha. The entries in Ex. B-3 the register of properties maintained by the appellant-Sabha also show that the suit temple was maintained and managed for the benefit of the members of the Sourashtra Community. There can be no doubt whatsoever that the appellant-Sourashtra Sabha, which consists of the leading members of the Sourashtra Hindu Community. Madurai, though registered as a Company under the Indian Companies Act, is a representative body of the Hindu Sourashtra Community at Madurai and had been managing the affairs of the suit temple only on behalf of the Hindu Sourashtra Community.

The learned Counsel for the appellant has frankly conceded that the appellant-Sabba had been managing the suit temple only as representative of the Sourashtra Hindu Community of Madurai. Indeed, the Deputy Commissioner of the Hindu Religious and Charitable Endowments, Mudarai had in Ex. B 2 Annexure to his order dated 23rd December 1960, observed towards the end of his order that, in his opinion, the appellant-Sabha, as its object would show, functioned as a body representing the Sourashtra Community and was in charge of the management of the temple, its properties and endowments, just as it was also interested in the economic, social and educational improvement of the Sourashtra Community.

The next question which arises for consideration is whether the Sourashtra Hindu Community of Madurai can be termed a religious denomination contemplated by Article 26 of the Constitution. We have no doubt in our mind that the Sourashtra Hindu Community, which is admittedly a part of the Hindu Community, is a religious denomination. In the Commissioner. Hindu Religious Endowments, Madras v. Shri Lakshmindra Thiatha Swamiar of Shri Shirur Mutt 1954 S.C.R. 1005 the Supreme Court had upheld the claim that the Sivalll Bramins constituted a religious denomination, though they formed but a sub-section of the Madhva Brahmins. In the well known Chidambaram case Sudhindra Thirtha v. Commissioner H.R. and C.E., Madras (1956) 1 M.L.J. 532 this Court had upheld the claim that the Dheekshatbars of Chidambaram who constituted but a sub-sect of Smartha Brahmins were a religious denomination. In Devaraja Shenoy v. State of Madras (1952) 2 M.L J. 481 which related to Sri Venkataramaa Temple, Mulki, this court had held that the Gowd Saraswath Brahmin Community of Mulki was undoubtedly a religious denomination.

In Venkatachalapathy and another v. Dy. Commissioner H.R. and C.E. Thanjarur and another W.P. Kos. 804 and 805 of 1957 a Division Beach of this Court had held by their order dated 11th August 1960 that the Sourashtra Hindu Community of Kumbakonam constituted a Hindu Religious denomination within the meaning of Art. 26 of the Constitution. The learned Judges had observed that the Sourashtras no doubt formed a sub-section of the Hindus, but within that fold, the Sourashtra of Kumbakonam constituted a distinct religious denomination. For the foregoing reasons and following the principles laid dawn in the cases aforesaid we uphold the contention of the learned counsel for the Appellant that the suit temple is a denominational temple. We may also add that this contention is not made for the first time in appeal and that a similar contention had been raised by the appellant-Sabha in its reply Ex. B-10 sent to the Hindu Religious and Charitable Endowments authorities as early as 29th March 1954 wherein it was asserted that the Sourashtra Hindu Community is a religions denomination and that the temple in question belongs to the said community.

We are clear that the fact that the suit temple may fall within the definition of ‘temple’ in S. 6 (20) of the Madras Hindu Religious and Charitable Endowments Act of 1959 can make no difference whatsoever and we are fortified In this view by the decision of a Division Bench of this Court in cited supra.

Before parting with this case, It is necessary to make some observations touching the discretion and the caution to be exercised by the commissioner and the authorities while exercising control land supervision ever the suit temple under the provisions of the Hindu Religions and Charitable Endowments Act. That the suit temple is a denominational temple and not a public temple in the wide sense of the term should always be borne in mind by them. From the decisions referred to above, it will be clear that some of the provisions of the Act will not in the nature of things apply to denominational temples. At the same time, we should be understood as in any manner denying the power of control and supervision of the Commissioner and the authorities fastening under the Act. The authorities have so for acted on the general basis that the suit temple is a temple as defined under S. 6(2) of the Act, not taking note of the aspect that the temple is a decontamination one. It is not our desire to expatiate at length and specify or demarcate in what manner the powers under the particular provisions should be exercised in supervising the management of the temple and its affairs. We have no doubt that the authorities will be mainly guided by the spirit underlying the establishment and existence of such denominational temples.

The suit temple was founded and has throughout been maintained and all its expenses are met out of voluntary generous contribution and liberal donations made by members of the Sourashtra Community and in particular the members of the Sourashtra Sabha who are rich and high by respectable persons in the locality. They have been uniformly contributing liberally to the upkeep and maintenance of the temple, the performance of the warship and the celebration of the festivals. There is no contribution from the public. The members of the Sourashtra Sabha have been very well managing the affairs of the temple all throughout without giving any occasion for complaint; till now there has been no complaint of any mismanagement whatsoever. They are maintaining regular accounts. The committee is meeting as often as required and the committee scrutinises everything concerning the management by the Office-bearers. Any injudicious and frequent interference in the management of the affairs of this long established institution on the part of the authorities would introduce deadlock and frustration and dampen the enthusiasm of the members of the Soerastra Sabha. In course of time, they would become indifferent and voluntary defiations and contributions would also disappear. This would naturally adversely affect the proper maintenance and upkeep of the temple, the worship and the celebration of the usual festivals. The less the interference by the authorities, the better will be the promotion of the good Interests and the objects of the institution.

The authorities should also bear in mind that the temple accounts have been regularly maintained by the Devasthnaam Committee of the Soarashtra Sabha and also periodically audited under the previsions of the Indian Companies Act, and till now nothing adverse has been suggested. It may be that the authorities functioning under the Hindu Religious and Charitable Endowments Act have a right to audit through their Officers and also demand audit fees; but it is a matter for them to deeply consider if they have such powers, whether such an audit involving expenses to the institutions is at all necessary and whether it is going to serve any further or additional purpose besides the audit under the previsions of the Indian Companies Act. So long as the income and the expenditure are properly accounted for, there may be absolutely no need for a double audit.

In the result, the appeal is allowed and the judgment and Decree of the Court below are set aside, and it is hereby declared that Sri Prasaana Venkateswarswami Temple, Madurai is a denominational temple within the meaning of Art. 26 of the Constitution of India. The order of the Commissioner passed in A.P. No. 46 of 1961 is set aside and the parties will be hereafter regulated by the Madras Hindu Religious and Charitable Endowments Act in so for as it is applicable to the denominational temples. Each party will bear its or his costs throughout.