Citation Codes

Equivalent Citations

citation codes

Case Number

A.S No. 541 of 1987.

Attorney(S)

Mr. A. Arumugam Government Advocate for Appellant.
Mr. S.V.K Thambi for Respondent.

Judges

M. Karpagavinayagam, J.

Acts

Section 6, Clause 20 of the Hindu Religious and Charitable Endowments Act
Section 9(12) of the Madras Hindu Religious Endowments Act
Section 63(a) of the Tamil Nadu H.R & C.E Act

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The Commissioner, Hindu Religious and Charitable Endowment Department, Madras (the unsuccessful defendant below), is the appellant. P. Vellappan Nair (the respondent) filed O.S. No. 5 of 1985 in the trial Court seeking a decree to set aside the order of the Commissioner passed in A.P. No. 6 of 1982, which had held that Mathakulathu Kantan Sastha Temple is a public temple.

At trial the plaintiff examined himself (P.W.1) and two other witnesses (P.Ws.2 and 3) and marked Exhibits A-1 to A-9. The defendant examined Dharmarajan, an Inspector of H.R. & C.E. Department (D.W.1), and marked Exhibits B-1 to B-7. The trial Court decreed the suit in favour of the plaintiff, setting aside the administrative orders; the Commissioner appealed.

The plaintiff's case: the temple originated and was maintained as the family (private) temple of the Thalayali tarwad (a Nair tarwad governed by Marumakkathayam law), was constructed on land belonging to a former karnavan of the tarwad, and was endowed by members of the tarwad. The plaintiff relied principally on a registered partition deed (Ex.A-9 dated 29.7.1103 M.E) showing allotments to the temple and its designation as a private temple.

The defendant's case: the temple is a public religious institution used by Hindus of various communities; pattas were issued in the deity's name; the temple has features and festivals typical of a public temple; and the H.R. & C.E. Department was entitled to treat it as public and intervene.

Legal Issues Presented

Whether the suit temple Mathakulathu Kantan Sastha Temple in Mangoda Kappiara Village, Kalkulam Taluk belongs to the Thalayali tarwad (a Nair tarwad governed by Marumakkathayam law)?
Whether the affairs of management of the temple had been in the hands of successive karnavans of the tarwad?
Whether the deity is the family deity of the tarwad temple uninterfered by anybody?
Whether the properties have been endowed only by the tarwad to the temple?
Whether maintenance and upkeep of the temple is exclusive to the members of the tarwad?
Whether the temple has any indicia of a Public Religious Institution?
Whether the order of the Commissioner in A.P. 6 of 1982 is liable to be set aside?

Arguments of the Parties

Appellant's Arguments (Commissioner / Government Advocate Mr. A. Arumugam)

There is material that Hindus belonging to various castes come and worship at the suit temple; therefore its character is public.
The trial Court should have held the temple to be a public religious institution, particularly because the temple is situated on poramboke land.
The defendant produced material showing the suit temple has features of a public temple (festivals, structures, user by different communities), and in Tamil Nadu there is a presumption that temples are public; the plaintiff has not rebutted that presumption.

Respondent's Arguments (Plaintiff / Counsel Mr. S.V.K. Thambi)

The presumption that temples are public in Tamil Nadu does not apply to temples situated in Kanyakumari District (near Malabar / former Travancore area), where many private temples historically existed.
The plaintiff produced solid documentary and oral materials (notably Ex.A-9) establishing that the temple is a private family temple of the Thalayali tarwad.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
V. Mahadeva Gurukkal v. Commissioner H.R.E (69 L.W. 51 = AIR 1956 Madras 522 = 1956 1 M.L.J. 309)	Cited among authorities addressing criteria for distinguishing public and private temples.	Counted among the decisions from which the court distilled general principles (see paragraphs summarizing (i)–(ix)).
Sri C.S. Ambigai Temple v. Commissioner of H.R. & C.E (1966 (I) M.L.J. 109 = 78 L.W. 404)	Cited among authorities addressing criteria for distinguishing public and private temples.	Counted among the decisions from which the court distilled general principles (see paragraphs summarizing (i)–(ix)).
Ramaswamy Naidu v. Commissioner, H.R. & C.E (87 L.W. 595 = 1974 (II) M.L.J. 133)	Cited among authorities addressing criteria for distinguishing public and private temples.	Counted among the decisions from which the court distilled general principles (see paragraphs summarizing (i)–(ix)).
T.V. Mahalinga Iyer v. State of Madras (AIR 1980 S.C. 2036)	Cited among authorities addressing criteria for distinguishing public and private temples.	Counted among the decisions from which the court distilled general principles (see paragraphs summarizing (i)–(ix)).
Soundharathammal v. M.A.B.M. Sangam (90 L.W. 333 = 1977 I M.L.J. 125)	Cited among authorities addressing criteria for distinguishing public and private temples.	Counted among the decisions from which the court distilled general principles (see paragraphs summarizing (i)–(ix)).
Mayaperumal v. Azhagappan Nadar (97 L.W. 507 = 1984 II M.L.J. 422)	Cited among authorities addressing criteria for distinguishing public and private temples.	Counted among the decisions from which the court distilled general principles (see paragraphs summarizing (i)–(ix)).
The Commissioner, H.R. & C.E. (ADMN.) Department, Madras v. Sri Andarvillai Mutharamman Temple, Eraniel (1988 2 L.W. 819 = 1999 I.M.L.J. 3)	Cited among authorities addressing criteria for distinguishing public and private temples.	Counted among the decisions from which the court distilled general principles (see paragraphs summarizing (i)–(ix)).
Hanumalayaperumal Mudaliar v. Commissioner, H.R. & C.E (1975 II M.L.J. 310)	Cited among authorities addressing criteria for distinguishing public and private temples.	Counted among the decisions from which the court distilled general principles (see paragraphs summarizing (i)–(ix)).
H.R. & C.E v. N. Ramakrishna Pillai (1999 L.W. 295)	Cited among authorities addressing criteria for distinguishing public and private temples.	Counted among the decisions from which the court distilled general principles (see paragraphs summarizing (i)–(ix)).

Court's Reasoning and Analysis

The court began by recalling that the cited authorities collectively establish guidelines for determining whether a temple is public or private. Those distilled principles were enumerated in the opinion (paragraphs (i)–(ix)) and include: the statutory conditions to declare a temple public; the possibility of private temples becoming public by express or implied dedication; a presumption in Tamil Nadu that temples are public (subject to local exceptions); the need to prove public worship "as of right"; and various indicia (structural features, festivals, collections, hundial, organizational consciousness) that typically mark a public temple.

The court considered but did not rely on the general presumption that temples in Tamil Nadu are public. It observed that the presumption may not apply in areas like Kanyakumari District (close to former Travancore/Malabar), but in any event elected to decide the case on the concrete materials produced by the parties rather than on an initial presumption.

The court then analyzed the evidentiary record:

On the plaintiff's side, three witnesses and nine documents were produced; Ex.A-9 (registered partition deed dated 29.7.1103 M.E) was treated as the principal document showing that the temple originated as and continued to be a private family temple, with multiple items of property allotted to the temple by the tarwad for its management.
On the defendant's side, statements (Exs. B-1, B-5, B-6) were introduced to show that members of the public worshipped at the temple; however, the court found these statements did not establish dedication of the temple to the public or worship by the public "as of right."
Other documents produced by the defendant (Ex.B-3, Ex.B-4) indicated the existence of a trustee/former trustee and receipts connected with the karnavan, but the court held these did not change the temple's private character.
Ex.B-7 (report by the defendant's witness to the Deputy Commissioner) stated there was no information about the public habitually making offerings to the deity.
There was no evidence of indicia frequently associated with public temples: no moolasthanam, mahāmandapam, prakārams, utsavamurthis, routine public poojas contributed to by the public, no hundial, and no collections for festivals or maintenance made from the public.
Even accepting that some outsiders were permitted to worship occasionally, the court treated such allowance as informal benevolence (a sentiment of hospitality) rather than recognition of a legal right of the public to worship there.

Applying the legal principles to these facts, the court concluded that the essential attributes of a public temple were absent and that the documentary and oral evidence supported the conclusion that the temple remained a private family temple of the Thalayali tarwad.

Holding and Implications

Holding: The appeal is dismissed and the judgment and decree of the trial Court are confirmed. The trial Court's decree setting aside the orders of the Commissioner and the Deputy Commissioner and declaring the temple to be a private temple was upheld. APPEAL DISMISSED.

Direct consequences for the parties:

The orders of the Commissioner in A.P. No. 6 of 1982 and the Deputy Commissioner in O.A.12 of 1979 (which had treated the temple as public) were set aside to the extent they conflicted with the trial Court's finding that the temple is private.
No costs were awarded (the court expressly ordered "No costs").

Broader implications: The opinion reiterates and applies existing principles for distinguishing public and private temples (as summarized in paragraphs (i)–(ix)), but it resolves the dispute on the particular facts and evidence before the court. The opinion does not announce any new legal principle beyond applying established guidelines to the record.

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The Commissioner, Hindu Religious And Charitable Endowment (Administration) Department, Madras - 34. v. P. Vellappan Nair.

Judgment

The Commissioner Hindu Religious and Charitable Endowment Department, Madras, the unsuccessful defendant, is the appellant herein.

2. P. Vellappan Nair, the respondent herein, filed a Suit in O.S No. 5 of 1985 before the trial Court seeking for a decree to set aside the order of the Commissioner passed in AP. No. 6 of 1982 holding that Mathakulathu Kantan Sastha Temple is a Public Temple.

3. The plaintiff examined himself as P.W.1 and two other witnesses as P.Ws.2 and 3 and marked Exs.A-1 to A-9 on his side. On behalf of the defendant/appellant, one Dharmarajan, the Inspector of Hindu Religious and Endowment Department, was examined and through him, Exs.B-1 to B-7 were marked. The trial Court decreed the suit as prayed for in favour of the plaintiff. Hence, this first appeal.

4. The case of the plaintiff/respondent is as follows: —

“The Thalayali tarwad is an ancient Nair tarward in Mangoda in Kappiara Village of the Kalkulam Taluk of Kanyakumari District. The plaintiffs tarward is governed by the Marumakkathayam Law. The Mathakulathu Kantan Sastha Temple is the family deity of the Thalayali Tarwad and the temple was constructed on the land belonging to a former Karnavan of the Tarwad. The patta was granted in favour of the Tarwad Temple. Originally the previous Karnavan endowed 3 items of properties for the conduct of the related poojas in the temple and the management of the temple. The members of the tarwad are the only beneficiaries of the temple and the temple was constructed solely for the spiritual benefit of the members of the tarwad. There was a registered partition deed of the year 1103 M.E among the members of the tarwad. In the said partition deed, more endowed properties were allotted to the temple, since the three items earlier allotted were found not sufficient for the temple affairs. The Sastha Temple was referred in the partition deed as a private temple of the Thalayali tarwad. This temple is not a place of public religious worship. No one outside the tarwad would come and worship in the temple as of right. While so, the authorities of H.R& C.E began to take steps on the assumption that the suit temple is a public religious institution. Therefore, the plaintiff Karnavan filed an application before the Deputy Commissioner under Section 63(a) of the Tamil Nadu H.R & C.E Act claiming that it is a private temple. The Deputy Commissioner in O.A12 of 1979 rejected the said claim. Therefore, the plaintiff filed an appeal in AP. No. 6 of 1982 before the Commissioner and the same was also dismissed. Feeling aggrieved over the same, the present suit was filed.”

5. The case of the defendant/appellant is as follows: —

“The suit temple does not come under the management of the tarwad. The suit temple is a Public Religious institution and the deities are worshipped by Hindu belonging to various community and colour. The pattas were issued for the lands only in the name of the deity by representing the name of the person then in management as a trustee. No member of the tarwad endowed lands for the temple. The right of worshipping in the suit temple by the members of the tarwad possess, is like that of any other Hindu belonging to any other community. The temple is being used as a public temple by Nair and Nadar Community people. The temple has got features of Moolasthanam having stone deities. Special festivals like Panguni Uthiram, Mandala Poojas and Magaravilakku, Chithrai Vishu are conducted in the temple. Therefore, the H.R & C.E Department has every right to take steps considering the public nature of the suit temple. Therefore, the suit is liable to be dismissed.”

6. On the basis of the above pleadings, the following issues were framed by the trial Court.

(1) Whether the suit temple Mathakulathu Kantan Sastha Temple in Mangoda Kappiara Village, Kalkulam Taluk belongs to the Thalayali tarwad a Nair tarwad governed by the Marumakkathayam system of law?

(2) Whether the affairs of management of the temple had been in the hands of success in Kamavans of the tarwad?

(3) Whether deity is the family deity of the tarwad temple uninterfered by anybody?

(4) Whether the properties have been endowed only by the tarwad to the temple?

(5) Whether maintenance and upkeep of the temple is exclusive to the members of the tarwad?

(6) Whether the temple has any indicia of a Public Religious Institutions?

(7) Whether the order of the Commissioner in A.P.6 of 1982 is liable to be set aside?

7. The trial Court, after considering the evidence, oral and documentary, as noted above, ultimately decreed the suit holding that the plaintiff has proved that the suit temple is a private temple thereby the orders of the Commissioner and Deputy Commissioner were set aside.

8. Mr. A. Arumugam, the learned Government advocate appearing for the appellant, while attacking the judgment of the trial Court, would elaborately contend that there are materials that the Hindus belonging to various castes come and worship the suit temple. The trial Court ought to have held that the temple is a Public Religious Institution, more particularly when the temple is situate in poramboke land. He would also point out that the defendant had produced materials to show that the suit temple is having all the features of a public temple. It is also pointed out that as regards temples in Tamil Nadu, it shall be presumed that they are public temples and in this case, the said presumption has not been rebutted by the plaintiff through materials.

9. Mr. S.V.K Thambi, the learned counsel appearing for the respondent on the other hand, in justification of the reasonings given in the judgment by the trial Court would contend that the presumption, as pointed out by the learned Government Advocate, would not apply to the temples situate in the Kanyakumari District and in any event, the plaintiff had produced solid materials to prove that temple in question is a private temple.

10. Both the counsel would cite a number of authorities in order to substantiate their pleas. Those decisions are as follows: —

(1) V. Mahadeva Gurukkal v. Commissioner H.R.E (69 L.W 51 = AIR 1956 Madras 522 = 1956 1 M.LJ 309);

(2) Sri C.S Ambigai Temple v. Commissioner of H.R & C.E (1966 (I) M.L.J 109 = 78 L.W 404);

(3) Ramaswamy Naidu v. Commissioner, H.R & C.E 87 L.W 595 = (1974 (II) M.L.J 133);

(4) T.V Mahalinga Iyer v. State of Madras (AIR 1980 S.C 2036);

(5) Soundharathammal v. M.A.B.M San gam (90 L.W 333 = 1977 I M.L.J 125);

(6)Mayaperumal v. Azhagappan Nadar (97 L.W 507 = 1984 II M.L.J 422);

(7) The Commissioner, H.R and C.E (ADMN.) Department, Madras v. Sri Andarvillai Mutharamman Temple, Eraniel (1988 2 L.W 819 = 1999 I.M.L.J 3)

(8) Hanumalayaperumal Mudaliar v. Commissioner. H.R & C.E (1975 II M.L.J 310);

(9) H.R and C.E v. N. Ramakrishna Pillai (1999 L.W 295);

11. The principles and guidelines enumerated in these decisions, which have to be borne in mind while deciding the question as to whether the temple is a public temple or a private temple, are given below: —

(i) The law requires only the conditions stipulated under Section 9(12) of the Madras Hindu Religious Endowments Act to be satisfied before a temple is declared to be a public temple. A temple began as a private temple may, in course of time, become a public temple by express or implied dedication, the latter being proved by use of the temple by the Hindu public as of right and without taking any permission from anyone.

(ii) So far Tamil Nadu is concerned, there is an initial presumption that the temple is a public one, it being upto the party who claims that it is, is private temple, to establish that fact affirmatively. This initial presumption must be rebutted by clinching testimony and tile crucial question is as to whether the public worship in the temple as of right.

(iii) Merely because the members of the public are allowed to attend religious festivals and ceremonies in the temple, it cannot be straightaway said that such user was due to an inherent or acquired right of the public to visit the shrine and offer worship.

(iv) The guidelines to enable the courts to decide whether a particular religious institution comes within the scope of the meaning of the definition of a ‘temple’ under Section 6, Clause 20 of the Hindu Religious and Charitable Endowments Act are these: —

(a) It should be a place of public worship;

(b) There should be acceptable proof of dedication for the benefit of the Hindu Community or a Section; and

(c) It should be established that the worshippers have long been using as of right the religious institution as a place of Public Religious worship.

(v) The existence of Moolasthanam, Mahamandapam, Prakaram, Idols of Chief and other deities, utsamurthis, daily poojas, special poojas and procession during festive occasions, worship by the local people without hindrance are all factors which give the impression that the temple is a public one.

(vi) If there is no dedication of the temple for the benefit of the Hindu Community as of right as a place of public religious worship, if there is no hundial or collection is made for the performance of any festival connected with the temple or for its maintenance, the temple will not be a public temple, but a private temple.

(vii) The origin of the temple, the manner in which its affairs are managed, the nature and extent of the gifts received by it, rights exercised by devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple, are factors to establish whether a temple is a public or a private one.

(viii) The essential sine quo non to make a temple public temple appears to be that the public should claim the right to worship the deity installed therein as of right. If the origin of the temple is very well-known as a private temple, then the clearest possible evidence is necessary for converting that temple into a public temple.

(ix) If the public do not worship the idol as of right and simply because some poojas are performed in a temple and certain members of the public are allowed to participate in the poojas, then the temple would not be said to be a public temple.

12. In the light of the above principles, the oral and documentary evidence available on record has to be considered in the instant case to answer the question posed.

13. As noted above, the learned Government Advocate would submit that there is a presumption in Tamil Nadu that the temples are public temples and that it is for the person asserting that a particular temple is a private one, to establish the same. This submission has been rebutted by the learned counsel for the respondent. It has been well established that in the case of temples in Malabar and Kerala, the presumption would not apply since there were many private temples in the Trivancore State, as it then was, and as such, the presumption would not apply to the suit temple which is situate in Kanyakumari District near Malabar.

14. Whatever it is, in my view, the rule of presumption need not be taken note of in this case, as we are concerned with the question as to whether there are materials produced by the parties to find out the real character of the suit temple.

15. According to the plaintiff, the suit temple is a private one. It is the case of the defendant that it is a public one. So, it would be appropriate to analyse the materials produced by the parties to arrive at the final conclusion.

16. In the light of the materials available on record, the character of the temple has to be decided now.

17. In order to prove the case of the plaintiff, 3 witnesses were examined and 9 documents were marked. According to them, it is a private temple, the temple was constructed by the Thalayali tarwad and it was never dedicated for the benefit of Hindu Community or Section of the Hindu Community. Out of the 9 documents marked on the side of the plaintiff, Ex.A-9 dated 29.7.1103 M.E is the main document. It is the registered copy of partition deed entered into among the family of the plaintiff.

18. On perusal of Ex.A-9, it is clear that 3 items of property were originally allotted to the temple for conducting poojas in the suit temple and as the income from those 3 items was not sufficient to manage the temple, 5 more items were allotted for the above purpose, i.e, for the management of the temple, under Ex.A-9. Further, the reading of Ex.A-9 would make it clear that earlier, there was a partition in 1102-ME among three branches of the Thalayali tarwad and one of the 3 branches executed Ex.A-9 partition deed.

19. Against the document filed by the plaintiff, the defendant would rely on Exs.B-1 to B-7. Ex.B-1 is the statement given by P.W.2 Manjunathan Potti. Exs.B-5 and B-6 are the statements given by Velayutham Pillai and Narayana Pillai respectively. These statements were marked by the defendant to prove their case that public also would come and worship in the temple.

20. But, the reading of Exs.B-1, B-5 and B-6 would not show that there was a dedication of the temple for the benefit of public and the public would worship the deities in the temple as of right. On the other hand, Ex.B-3 produced by the defendant would itself show that one Ayyappa Pillai was the former trustee of the temple. Similarly, Ex.B-4 is the receipt issued by D.W1 to Narayanan Pillai, the previous Karnavan of Tarwad. That receipt would not change the character of the temple from private to public.

21. It is pertinent to note that in Ex.B-7 report sent by D.W.1 to the Deputy Commissioner, it had been stated that there was no information available about the public in the habit of making offerings to the deity. Under those circumstances, Ex.A-9 and other supporting documents would clearly show that the suit temple is originated as a private temple and the same has been maintained throughout as a private temple only.

22. Furthermore, there is no material relating to the existence of Moolasthanam, Mahamandapam, idols of the principal and other deities, Utsavamurthis, performance of daily poojas and special poojas by public belonging to different communities without hindrance. Moreover, the materials available on record would not disclose that the temple is used by the public as of right as a place of public religious worship.

23. It has also been established that there is no hundial and no collections were made from the public for the performance of any festival connected with the temple or for its management and maintenance. No member of the public had been examined before the trial court to show that he contributed amounts for the maintenance of the temple.

24. Even assuming that some worshippers were permitted, that can be attributed only to the sentiment of a Hindu who would not prevent another from offering worship and making offerings and not recognition of any right as such. There is no Garbagraham, there is no Dwajasthambam, there is no prakarams and as stated above, there is no Kanikkai or collections made from the public for the maintenance of the temple and there is no evidence regarding the conduct of festivals with the contribution of the public. Merely from the circumstances that some persons from outside would come to the temple at times, it does not indicate that the temple ceased to be a private one.

25. Under those circumstances, on a careful consideration of the evidence of PWs 1 to 3 and D.W.1 It is seen that the essential characters of public temple are totally lacking in this case.. On the other hand, there are materials to show that the temple in question is a private temple and as such the trial Court is right in holding that the suit temple is not a public temple, but it is a private temple. Therefore, the appeal is liable to be dismissed.

26. In the result, the appeal is dismissed confirming the judgment and decree of the trial Court. No costs.

VCJ/VCS.

The Commissioner, Hi... v. P. Vellappan Nair.