Om Sakthi Sri PeriyapalayathammanTrust v. The Commissioner, H.R. & C.E. Department, Uthamar Gandhi Road, Nungambakkam, Madras-34.2.The Deputy

The plaintiff is a trust. Om Sakthi Sri Periyapalayathammantemple is a private temple dedicated to the worship of the members ofthe plaintiff trust situated at Lattice Bridge Road, Adyar. Theplaintiff trust renovated the said temple which was originally foundedby one Duraikannu Gramini who also happened to be the founder of theplaintiff trust. He was worshipping in the temple in his privatecapacity. The establishment, maintenance and management of theinstitution remained with the founder of Duraikannu Gramini. Nocontribution has been taken from the outsiders by the founder. Thesaid temple has no property of its own. It is not getting any income.The two grounds extent in which the said temple is situated was in theoccupation of the said Duraikannu Gramini in his personal capacity.In the unregistered document which emerged at the time of the familypartition, the said two grounds of land was allotted to the father ofDuraikannu Gramini. The temple deity was for being worshipped by thefamily of the Duraikannu family. While so, the said DuraikannuGramini handed over the said temple to the plaintiff trust on6.8.1982. But the founder continued to be the member of the trust andhe was taking interest in the day to day management and affairs of thesaid temple. Public are not allowed to worship in the temple as amatter of right. Permissive worship was only allowed in the temple.Hence, the temple is beyond the purview of the H.R.&C.E. Act. Theplaintiff, therefore filed O.A.No.30/1982 under Section 63(a) of theH.R.&C.E.Act., before the Deputy Commissioner of H.R.&C.E., whodismissed the said application upholding that it is a public temple.The appeal filed before the Commissioner was also dismissed whereuponthe statutory suit was filed with the following prayer:(a)for setting aside the order of the first defendantpassed in A.P.47/87 dated 20.9.91 ; and(b) for declaring that Sri Periyapalayathamman temple,situated in Lattice Bridge Road, Adayar, Madras-20, is not a'religious institution' coming under the Act 22 of 1959 ;2. Gainsaying and challenging, impugning and controverting theallegations/averments in the plaint, the defendant filed the writtenstatement, the pith and marrow of it would run thus:-The temple by name Arulmighu Periyapalayathamman situated atLattice Bridge Road, Adyar, Madras is a public religious institutionwithin the meaning of Section 6(20) read with section 6(18) of theTamilnadu H.R.&C.E. Act 1959. Large number of Hindu public do worshipat this temple daily and during festival times without any restrictionand they offer kanikkai in the Hundials installed in the temple.Daily two kala poojas are being performed by Archakkas appointed inthis temple. Therefore Section 1(3) of the H.R.&C.E. Act isapplicable to the said temple. Hence, notice was issued to thepresent management of the temple by the Assistant Commissioner,H.R.&C.E., Department, Madras in his R.C.No.7251/82 A3, dated https://hcservices.ecourts.gov.in/hcservices/

7.10.1982, whereupon the plaintiff filed an application in O.A.30/1982under Section 63(a) of the Act to get a declaration that the suittemple is not a religious institution or a temple within the meaningof the H.R.&C.E. Act. The Deputy commissioner correctly held that thesuit temple is a public temple whereupon the appeal was filed, whichwas also dismissed by the Commissioner. Before the DeputyCommissioner, the plaintiff contended that the alleged private templewas founded 170 years ago by the ancestors of Duraikannu family and itwas renovated by Duraikannu Gramini. Accordingly the defendantsprayed for the dismissal of the statutory suit. 3. During trial on the side of the plaintiff, its present managingtrustee was examined as P.W.1 along with P.W.2 and Exhibits A-1 to A-6were marked. On the defendant side, D.W.1, the Inspectress whoconducted the enquiry relating to the affairs of the temple wasexamined and no document was exhibited. Ultimately, the trial Courtdismissed the suit. 4. Being aggrieved by and dissatisfied with the Judgment anddecree of the trial court, the plaintiff filed this appeal on thefollowing grounds among others:-The judgment and decree of the trial court is against law, weightof evidence and all probabilities of the case. The trial court failedto understand the scope of the application filed under Section 63(a)of the H.R.&C.E.Act and consequently failed to uphold the privatecharacter of the temple. Ignoring the evidentiary value of Ex.A.1 andEx.A.2, the trial court failed to consider that Duraikannu Graminifounded the institution and that it remained with him and his familymembers for more than three generations. Duraikannu Gramini foundedthe plaintiff trust and handed over the suit temple to the trust formanagement. The plaintiff trust renovated the temple and managing theday to day affairs. The said temple is not owning any property and noproperty was dedicated to the deity. The public are not having anyright to worship in the suit temple. Accordingly, relying on thereport of the inspector, the trial court decreed the suit. The trialCourt failed to see that the plaintiff trust is a private trust,managing the suit private temple. Accordingly, the plaintiff prayedfor setting aside the judgement and decree of the trial court and fordecreeing the suit. 5. The parties are referred to according to the litigative statusbefore the trial court. The points for consideration are :-(i)Whether the plaintiff trust is a public trust or aprivate trust?(ii)Whether the suit temple comes within the purview ofthe H.R.C.E. Act.(iii)Whether there is any infirmity in the judgment and https://hcservices.ecourts.gov.in/hcservices/ decree of the trial court?6. The whole kit and caboodle of the facts and figures placedbefore the trial court would demonstrate thus:- The apple of discord between the plaintiff and the defendants isrelating to the character of the suit temple as to whether it is apublic temple or a private temple. By way of fortifying and buttressing the plea of the plaintiff,P.W.1, the present trustee of the plaintiff would narrate in hisdeposition by way of reiterating his stand in the plaint. P.W.2-Namalwar one of the members of the plaintiff trust would depose thatduring the year 1988, the temple was built without collecting anydonation by the trust. 7. P.W.1 during cross examination would detail and delineate thefacts as though the temple was constructed 200 yeas ago, WhereasP.W.2 would narrate that the temple was installed 300 years ago andthat the temple is situated in a private land and the public are notallowed to worship. P.W.1 would specifically state during chiefexamination thus:-"bkk;gh;fs; FLk;gj;jpdh; kl;Lk;jhd; tHpgLthh;fs;. bghJkf;fs;ahUk; tUtjpy;iy"(emphasis supplied)It is therefore crystal clear during trial before the lower Court,both P.W.1 and P.W.2 made a vain attempt to project their case asthough the temple is meant for being worshipped by the family membersof the Board of trustees of the plaintiff trust and not by the publicand that the public are denied worship. It is therefore clear thatthe evidence of both P.W.1 and P.W.2 is antithetical to the plaintaverments which would expatiate that public are permitted to worshipin the temple; however as per the plaint, it was "permissive worship".Even such an averment in the plaint was given a go-by during trial onthe plaintiff's side due to over enthusiasm to assert their plea. 8. According to the plaintiff, the suit trust is a private trustwhich is totally contrary to recitals in Ex.A.1, their own document.However, the learned senior counsel for the plaintiff while arguingthe case in response to my query candidly and fairly submitted thatthe plaintiff trust is a private trust in view of the recitals inEx.A.1. Despite such supine and fair submission by the learnedcounsel for the plaintiff, I would like to further elaborate on thatpoint as to how the plaintiff trust is not a private trust but apublic one. The relevant portion of Ex.A.1, the trust deed isextracted hereunder for ready reference:- https://hcservices.ecourts.gov.in/hcservices/ "OM SAKTHI SRI PERIYAPALAYATHAMMAN TRUSTDeed of Declaration of Trust executed this the 6th day ofAugust 1982, by me Duraikannu Gramini S/o.GovindaswamyGramini, Hindu aged 60, residing No.15, C.I.T.Cly, SastriNagar, Adyar, Madras-20 to constitute a public charitabletrust. Whereas the authors of the Trust have endowed and setapart a sum of Rs.1,000/- as an initial endowment to thecorpus in this behalf, and for the improvement of the objectsof the trust set for hereunder.1. To infuse into the members, the ideal service tosociety.2.To promote opportunities and offered facilities torender services to the community by direct or indirect meansand by way of collection of donations and subscriptions etc.3. To promote the welfare of children, youth and womenin general.4. To establish and run hostels and hospitals in thename of the trust.5. To construct or adopt temples and run6.To promote and develop intellectual and culturalactivities.7. To promote the habit of divinity among the youth aswell as the public.8. To encourage the youth's for acquiring knowledge inthe field of divinity.9. To assist the students to study about divine.10. To do all such things as are incidental or conduciveto the attainment or promotion of the above objects or any ofthem. ..... ... The initial endowment by the Trustees of the Trustamounting to Rs.1,000/- shall constitute the corpus of theTrust, and rest in the managing committee of the Trust.The Managing Committee of the Trust may obtain donationsand other amounts from any person including the trustees ofthe trust, and from any other trust or from otherwise as maybe found necessary from time to time. The Managing Committee of the trust may obtain donationsand to raise funds and by other practical means." (emphasis supplied)It is therefore crystal clear from the above excerpts extracted suprathat the plaintiff trust is for public welfare at large. Moreover thevery trust itself is called Om Sakthi Sri Periyapalayathamman Trust,so to say, named after the suit temple and in addition to thecharitable purposes contemplated in Ex.C.1, the said trustcontemplates to promote the habit of divinity among the youth as wellas public and to encourage them in the field of divinity to assist the https://hcservices.ecourts.gov.in/hcservices/ students to study about the divine. It is explicit from the recitalsin Ex.A.1, that the trust is meant for the benefit of the public atlarge. It is not meant for benefiting the family members of thetrustees. It is therefore clear that the recitals in the plaint aswell as in the deposition of P.W.s 1 and 2 are totally wrong anderroneous which are intended to twist and distort the real facts andthe real intention of the plaintiff trust. In fact, the saidDuraikannu Gramini was not examined as a witness before the lowercourt or before any authority for reasons best known to the plaintiff.The trial court correctly commented upon it. It is not the case ofthe plaintiff that during the proceedings before the authorities underthe H.R.&C.E., and before the trial Court, Duraikannu was not alive. 9. There is one other glaring point, which, I may say falsehood onthe side of the plaintiff in stating that no donation or collectionsare effected at any point of time under Ex.A.1 clause No.2 and also inthe other two paragraphs which are extracted supra contemplatecollections of donations from any person including the trustees of thetrust. It is therefore crystal clear from the recitals in Ex.A.1 thatthe Om Sakthi Sri Periya Palayathamman Trust which is nomenclaturedafter the suit temple Om Sakthi Sri Periya Palayathamman, contemplatespublic purposes and that beneficiary should be public at large and nowhere it is found indicated that the members or the trustees of thetrust alone shall be are the beneficiaries of the trust. It istherefore obvious and axiomatic that the plaintiff trust is a publictrust. However, suo motto, I would like to cite the decision in DeokiNandan Vs. Murlidhar reported in A.I.R.1957 SC 133 to high light thatthe plaintiff is a public trust :-"5. It will be convenient first to consider theprinciples of law applicable to a determination of thequestion whether an endowment is public or private, and thento examine, in the light of those principles, the factsfound or established. The distinction between a private anda public trust is that whereas in the former thebeneficiaries are specific individulas, in the latter theyare the general public or a class thereof. While in theformer the beneficiaries are persons who are ascertained orcapable of being ascertained, in the latter they constitutea body which is incapable of ascertainment. The position isthus stated in Lewin on Trusts, Fifteenth Edition, pp.1516:"By public must be understood such as are constitutedfor the benefit either of the public at large or of someconsiderable portion of it answering a particulardescription. To this class belong all trusts for charitablepurposes and indeed public trusts and charitable trusts mayalso be considered in general as synonymous expression. Inprivate trusts the beneficial interest is vested absolutelyin one or more individuals who are, or within a certain timemay be, definitely ascertained..." https://hcservices.ecourts.gov.in/hcservices/ Vide also the observations of Mitter,)in Haji MahammadNabi Shirazi Vs. Province of Bengal, I.L.R.(1942)1 Cal.211at pp.227.228 (A.I.R.1942 Cal.343 at p.349) (B). Applyingthis principle, a religious endowment must be held to beprivate or public, according as the beneficiaries thereunderare specific persons or the general public or sectionsthereof."(emphasis supplied)From the above, it is clear that the plaintiff public trust viz., OmSakthi Sri Periya Palayathamman is managing the temple called OmSakthi Sri Periya Palayathamman temeple for the benefit of the publicand the beneficiaries are the public and it is not that thebeneficiaries are the trustees and their family members. When thisCourt raised the point whether in Ex.A.1, there is any mandate to theplaintiff trust, to maintain the suit temple, the learned counsel forthe plaintiff would try to expound that there is no reference to thesuit temple in Ex.A.1 for the reason that at the time of registeringthe deed, the registering authority demanded No Objection Certificateor clearance certificate from the H.R.&C.E. authorities and hencethere is no reference to the suit temple in Ex.A.1. It is thereforeapparent that as per Ex.A.1, absolutely there is nothing to show thatthe suit temple is for the benefit of the trustees and their familymembers and not for the public. The recitals in Ex.A.1 is to theeffect that the trust is for public purpose and to promote religiousfaith and divine worship among the general public. A fortiori thesuit temple is necessarily a public temple. It is beyond the scope ofEx.A.1 for the plaintiff trust to manage any private temple for thebenefit of the trustees and their family members. If Ex.A.1 isinterpreted that the plaintiff trust could hold and manage a privatetemple for the benefit of the members of the plaintiff's trustees,then it would meant to doing violence to the recitals in Ex.A.1. TheIpse dixit, P.W.1 that the plaintiff Trust is managing the suit templepurely for the benefit of its trustees is against the very purpose ofthe plaintiff trust. 10. The definitions as contemplated under Section 6(18) and 6 (20)of the H.R.& C.E. Act are extracted here under for ready reference:-Section 6(18):- "religious institution" means a math,temple or specific endowment and includes (i)a samadhi orbrindhavan; or (ii)any other institution established ormaintained for a religious purpose. Section 6(20):- "Temple" means a place by whateverdesignation known, used as a place of public religiousworship and dedicated to, or for the benefit of, or used asof right by, the Hindu community or of any section thereof,as a place of public religious worship ;My above discussion supra would make the point clear that the suit https://hcservices.ecourts.gov.in/hcservices/ temple should be treated as a temple within the purview of Section 6(20) and as a sequelee, it is a religious institution under Section 6(18) of the same Act.11. Learned counsel for the plaintiff would find fault with thetrial court for having not referred to the Exhibits marked on the sideof the plaintiff and also for having not considered as many as twentydecisions cited on the side of the plaintiff. Consequently, thecounsel for the plaintiff would pray for remitting the matter to thetrial Court for being dealt with afresh. I am at a loss to understandas to why the matter of this nature should be remanded to the trialcourt. The plaintiff should have adduced evidence as the burden ofproof was on the plaintiff to prove its case that the suit temple is aprivate temple. There are catena of decisions which would show thatthe temples in Tamil Nadu are presumed to be public temples. Ampleopportunity was given to the plaintiff to adduce evidence before thetrial court and simply because the judgment of the trial court is notelaborate touching upon all the exhibits and the decisions cited onthe side of the plaintiff, it cannot be a ground for remitting thematter back to the ground and that too for nothing to be dismissedonce again by the trial court. 12. The learned counsel for the plaintiff would refer to Ex.A.2and contend that as per the versions found there in, there is noreference to the public to have worship by way of right in the suittemple. Once again, the contention of the plaintiff's side is wrong.13. A perusal of the entire Ex.A.2, the Minutes Book wouldclearly demonstrate that the plaintiff's case is not correct. Firstof all, it could be seen that A-2 is not an authentic document becauseit is only maintained by the plaintiff and the interested personssigned it. The very first minutes found recorded in Ex.A.2 on8.8.1982 itself is not free from doubt. As per the minutes foundthereon, they would portray and project as though the temple was builtfive generations ago counting from Duraikannu Gramini and there isnothing to indicate in which particular year it was constructed,whereas P.W.1 would depose that 200 years ago, the temple wasconstructed, on the contrary P.W.2 says that 300 years back, thetemple was constructed. There is no iota of shred of evidence as towhen the temple was constructed and by whom. My mind is redolent withthe following decisions and in fact the learned counsel for theplaintiff also would cite them.14. The privy council's decision reported in LW 1934 Vol.XL(MUNDACHERI KOMAN vs. ACHUTHAN NAIR) is on the point that in TamilNadu the presumption is that the temples herein are Public templesunless the contrary is proved.15. A decision of this Court reported in AIR 1966 Madras 99 https://hcservices.ecourts.gov.in/hcservices/ (NALLAKARUPPAN v. COMMISSIONER, H.R.& C.E.) is also on the same lineas that of the privy council's decision that in Tamil Nadu public thepresumption is that the temples herein are Public temples unless thecontrary is proved. An excerpt from it would run thus;-"9. The decision in Govindalalji v. State ofRajasthan, AIR 1963 SC 1638 at p.1648, dealt withthe temple at Nathdwara in Rajasthan.Gajendragadkar J.(as he then was), who deliveredthe opinion of the Bench, observed:"Where evidence in regard to the foundation ofthe temple is not clearly available, sometimesjudicial decisions rely on certain other factswhich are treated as relevant. Is the temple buildin such an imposing manner that it may prima facieappear to be a public temple? The appearance of thetemple of course cannot be a decisive factor; atbest, it may be a relevant factor. Are the membersof the public entitled to an entry in the temple?Are they entitled to take part in offering serviceand taking Darsan in the temple? Are the members ofthe public entitled to take part in the festivalsand ceremonies arranged in the temple? Are theirofferings accepted as a matter of right? Theparticipation of the members of the Public in theDarsan in the temple and in the daily acts ofworship or in the celebrations of festivaloccasions may be a very important factor toconsider in determining the character of thetemple. In the present proceedings, no suchevidence has been led and it is, therefore, notshown that admission to the temple is controlled orregulated or that there are other factors presentwhich indicate clearly that the temple is a privatetemple. Therefore, the case for the Tilakayatcannot rest on any such considerations which, ifproved, may have helped to establish either thatthe temple is private or is public".Applying the above principles to the present case, it is clear that inregard to the temple in Nachandupalli, even if it was foundexclusively for the benefit of the members of the Nattukottai Chettiarcommunity belonging to 5 temple clans, the dedication of the temple tothe community and the worship by the members of the community as ofright in the temple, would still make it a public temple, as themembers constitute a section of the Hindu community as contemplated inthe definition in S.6(17) of the Act. Here the suit temple therefore could rightly be presumed to be aPublic temple and that too in the absence of any evidence to contrary https://hcservices.ecourts.gov.in/hcservices/ that it is a private temple and as to when it was constituted and bywhom.16. An excerpt from the decision of this Court reported in 1976Madras 26 (T.MUDALIAR v. COMMISSIONER H.R. & C.E.) would run thus;"No provision had been made for taking out theidols of the temple on procession to any placeoutside the inner compound of the temple. There wasno hundi for collection from Worshippers of thetemple. There was no bell and when the Commissionervisited the temple at the time of Deeparadhana,there were no outsiders excepting himself and thetwo inspectors of the department. The provision ofthe door and the compound wall and the site of thetemple was such that it was incapable of attractingmembers of the public resort therein as of righteither for worship or for participating in anycelebration therein. The question was whether sucha temple was a public temple or a private one.The three guidelines which enable the courtsto decide whether a particular religiousinstitution comes within the scope of the meaningof the above definition are that it should be aplace of public worship, there should be acceptableproof of dedication for the benefit of the HinduCommunity or a section thereof and incidentally itshould also be established that the the worshippershave been using as of right the religiousinstitutuion as a place of public religiousworship. The other inspiring norms to decidewhether a temple is a private or public temple isdependent upon the features of the institution.Norms to decide whether a temple is a private orpublic temple on basis of decided cases pointed."In fact this decision is against the case of the plaintiff as here thepublic trust as discussed supra has been entrusted with the managementof the temple for Public good. 17. An excerpt from the decision of the Honourable Apex Courtreported in MLJ 1973 44 (GOPALAN v. COMMISSIONER OF H.R. & C.E.) wouldrun thus;"The origin of the temple, the manner in whichits affairs are manage, the nature and extent ofthe gifts received by it, rights exercised bydevotees in regard to worship therein, theconsciousness of the manager and the devotees as tothe public character of the temple are factors that https://hcservices.ecourts.gov.in/hcservices/ go establish whether a temple is public or private.The entire evidence, both documentary and oral, hasto be considered as a whole keeping in view theabove principles.". . . . "It is true that the facts that there isan utsava-idol and there are processions aregenerally indicative of the fact that it is aPublic temple. But then no property has beendedicated for the upkeep of the temple. The worshipis maintained and the expenses are met from out ofthe private funds of the respondent. In the absenceof any property being dedicated for the maintenanceof worship in the temple, it is difficult to holdthat the temple has been dedicated to the Public."Viewing the evidence on record it is clear that as per the HonourableSupreme Court decision cited supra, this is a public temple and thereis no iota or shred of evidence to show that from and out of the fundscontributed by the board of trustees alone the temple is beingmaintained and the fact remains that Ex.A1 itself contemplatescollection of donation. Even though the plaintiff claims that eversince the year 1982 the temple has been managed after being renovated,nonetheless no accounts have been produced. The burden of proof is onthe plaintiff to prove these facts. In fact, the plaintiff was awareof the decision cited before this Court. Had really the plaintiff beenin possession of genuine accounts then it could have produced it. Evenotherwise, the above discussion would indicate and spotlight that thetemple was not proved to be the exclusive temple for the benefit of afew families only as contended by the plaintiff.18. The learned counsel for the appellant very much placedreliance on the decision of the Honurable Supreme Court reported in 90LW (J.S.) 18 (COMMISSIONER OF H.R & C.E., MYSORE v. RATNAVARMAHEGGADE) popularly known as Manjunatha Temple case. An excerpt from itwould run thus;"The High Court examined the "crucialquestion" whether Manjunatha was a temple withinthe definition of the Act and Whether it was a"Religious Endowment" under S.9(1). It held thatthe Manjunatha Temple was an adjunct to thecomposite institution of Dharmasthal, and accordingto the customs and usages of the institution thattemple could not be separated from the rest of theinstitution, that Dharmasthal was both a religiousand charitable institution, that Manjunatha was adeity worshipped both by the Hindus and the Jainsin accordance with their respective faiths and that https://hcservices.ecourts.gov.in/hcservices/ it was neither an exclusively Hindu deity nor anexclusively Jain deity.The High Court thus held that the temple wasnot a temple as defined in the Act, and it wastherefore not necessary to examine the questionwhether it was private temple of the Heggade. Inthe result, the High Court took the view that theAct did not apply to the institution and the Boardhad no jurisdiction over it.. . ..The definition of "Temple" in S.9(12) of theMad.H.R & C.E. Act emphasises that only thosetemples will fall within the purview of the Actwhich are places of "public religious worship" andare "dedicated" to, or for the benefit of, or areused "as of right by the Hindu community.. . . It will be sufficient to say that what S.9(2)of the Act requires by was of definition of a'temple' should be dedicated for public religiousworship, as of right, and it would not detract fromits character as such if Jains also worship there.The argument of Mr.Chowdhary is, however, futilebecause, as has been mentioned, the provisions ofthe Act will not be attracted to the ManjunathaTemple in the absence of any evidence to prove theexistence of an endowment for it."The Manjunath temple formed part of a big institution, so to say itwas an adjunct to the composite institution of Dharmasthal andaccording to the customs and usage of the institution that templecould not be separated from the rest of the institution. It is quiteobvious here the facts discussed supra are entirely different i.e. thesuit temple is a separate temple by itself. 19. The following decisions are also relied on by the learnedcounsel for the appellant; and they are in concinnity with the ratiodecidendi of the aforesaid precedents; 1) MLJ 1984 (422) (MAYAPERUMAL v. AZHAGAPPANNADAR);2) MLJ 1973 (442)(CHENNAMMAL & COMMISSIONER,H.R.&C.E.);3) 2005 (2) TLNJ 375 (C.NALLSIVAN PILLAI v.THE COMMISSIONER, H.R.&C.E.(ADMN) DEPARTMENT,CHENNAI AND ANOTHER);4) MLJ 1960 121 (SRI RAMANASRAMAM v. https://hcservices.ecourts.gov.in/hcservices/ H.R.&C.E.);5) 1998 -2- LW 819 (THE COMMISSIONER,H.R.&C.E. , MADRAS, v. SRI ANDARVILLAI MUTHARAMMANTEMPLE, ERANIEL & ANOTHER);6) MLJ 1975 310 (THANUMALAYAPERUMAL MUDALIARv. THE COMMISSIONER, H.R.& C.E.);7) 2003(1) CTC 65 (THE COMMISSIONER, H.R.&C.E.v. T.S.PALANICHAMY);8) 2006(5) CTC 645 (SRI KRISHNAVILAS BAJANAIMADAM v. THE COMMISSIONER, H.R.&C.E.);9)2001-2-LW 774 (COMMISSIONER, H.R.&C.E. v.N.SONDARASWAMY GOUNDER & ANOTHER); and 10)MLJ 1977 (125) (SOUNDHARATHAMMAL v. MABMSANGAM)It is therefore, crystal clear that the decisions cited supra by thelearned counsel for the plaintiff in fact is not in his favour, butonly in favour of the defendants as the evidence and facts reveal thesame. 20.Placing reliance on these decisions, he would develop hisarguments that there is no dedication of the property in favour of thesuit temple and hence, it cannot be countenanced that the suit templeis a public temple. 21. The decision cited by him supra has been wrongly placedreliance on. In fact the said decision does not lay down the law thatunless there is dedication of property, the temple cannot be treatedas a public temple. While attempting to find out as to whether atemple is a public or private one, the court could see as to whetherthere was any dedication of property in favour of the said temple ;but that is not the only criterion here. The overwhelming evidenceavailable in this case would speak to by itself that the suit templeis a pubic temple. 22. It is a singularly single case as seen as per plaintiff'scase, the said Duraikannu Gramini inherited the temple from hisancestors and handed over it to the plaintiff trust for the benefit ofthe public as discussed supra. Here it is explicit that it is a publictemple.23. A perusal of the aforesaid decisions would indicate that ifthere is no evidence to show that when a temple was constructed and https://hcservices.ecourts.gov.in/hcservices/ when the deity was installed then the presumption is that it is apublic temple. In the minutes they would project that temple washanded over to the trust.24. I am at a loss to understand as to how the plaintiff couldcanvass the point successfully and satisfactorily that the templecontinued to be a private temple, where as per the plaintiff, the saidprivate temple was handed over by Duraikannu who got it from hisancestors to the plaintiff public trust. Even if it is consideredthat earlier the temple was private, yet after such dedication as setout supra, its character as private temple should be taken as one gotlost and it became a public temple. This glaring fact has not beenconsidered by the plaintiff in prosecuting its case.25. In page Nos.14, 15 and 16 of Ex.A.2, so to say, the minutesrecorded on 5th February, 1984, the trust dealt with various grievancesof the public relating to the method and the manner in which thepoojas were conducted in the temple and how the people werehumiliated. That itself is indicative of the fact that people dothrong the suit temple. The said minutes would demonstrate that onePappathi ammal was responsible for performing pooja for the amman butshe treated the public discriminately. Further more, at page No.14 inthe same minutes dated 5.2.1984, there is clear acknowledgement by theplaintiff that whenever the people in the locality afflicted withsmall pox, there were in the habit of getting holy water from the suittemple and give it to the sick persons. It is therefore glaringlyclear that so far this case is concerned, the plaintiff is trying tohide a pumpkin in a small plate of rice by taking untenable pleas soas to retain the management and administration over the suit temple byhook or by crook. The said minutes dated 5.2.1984 would also speak asto how when Doctor Anandhan for the purpose of pursuing his higherstudies went to the temple to make his worship there, he washumiliated. Similarly one Saroja met with same fate when she went tothe temple for offering worship relating to her daughter's marriage.These instances were referred to because the Poojari did not treatthem properly. Hence, these are additional instances to prove thatthe temple is a popular and powerful temple attracting the generalpublic and the public are worshipping there not as a permissiveworshipper but by way of right. There is no shred of evidence on theside of the plaintiff to exemplify that the public were prevented atany point of time from going into the temple, whereas Ex.A.1 wouldshow that the deity is taken on religious procession on festival days.This is another instance to show that the temple is a public temple. 26. The learned Government Advocate, would cite the decision ofthe Honourable Apex Court reported in MLJ 1957(28)(DEOKI NANDAN v.MURLIDHAR). An excerpt from it would run thus;"When a temple is built, idol installedtherein and properties endowed therefor, the true https://hcservices.ecourts.gov.in/hcservices/ beneficiaries are not the idols but theworshippers, and the purpose of the endowment isthe maintenance of that worship for the benefit ofthe worshippers. When property is dedicated for theworship of a family idol, it is a private and not apublic endowment, as the persons who are entitledto worship at the shrine of the deity can only bethe members of the family, and that is anascertained group of individuals. But where thebeneficiaries are not members of a family or aspecified individual, then the endowment can ony beregarded as public, intended to benefit the generalbody of worhsippers.. . . When once it is understood that the truebeneficiaries of religious endowments are not theidols but the worshippers, and that the purpose ofthe endowment is the maintenance of that worshipfor the benefit of the worshippers, the questionwhether an endowment is private or public presentsno difficulty. The cardinal point to be decided iswhether it was the intention of the founder thatspecified individuals are to have the right orworship at the shrine, or the general public or anyspecified portion thereof. In accordance with thistheory, it has been held that when property isdedicated for the worship of a family idol, it is aprivate and not a public endowment, as the personswho are entitled to worship at the shrine of thedeity can only be the members of the family, andthat is an ascertained group of individual, thenthe endowment can only be regarded as public,intended to benefit the general body ofworshippers.In the light of these principles, we mustexamine the facts of this case. The materialsbearing on the question whether the Thakurdwara isa public temple or a private one may be consideredunder four heads:(1) the will of Sheo Ghulam,Exhibit A-1, (2) user of the temple by the public,(3) ceremonies relating to the dedication of theThakurdwara and the installation of the idol withspecial reference to Sankalpa and Uthsarga, and (4)other facts relating to the character of thetemple.It is therefore clear from Ex.A1 that the very purpose of the https://hcservices.ecourts.gov.in/hcservices/ plaintiff trust is to benefit the public and not the board of trusteesor the families. 27. The learned counsel for the defendant would cite the decisionof the Honourable Supreme Court reported in AIR 1980 2036(T.V.MAHALINGA IYER v. STATE OF MADRAS). An excerpt from it would runthus;"It is undisputed law that so far as TamilNadu is concerned, there is an initial presumptionthat a temple is a public one, it being up to theparty who claims that it is private temple, toestablish that fact affirmatively. This initialpresumption must be rebutted by clinchingtestimony and the crucial question is as towhether the public worship in the temple as ofright. Ordinarily, there may not be directevidence regarding the exercise of such right andinference has to be drawn from a wealth ofcircumstances. The deed and may be spelt out ofthe circumstances present. The right of the publicto worship is also, a matter of inference. In theinstant case the temple itself is situate ongovernment property, processions with the deityare taken out and offerings are made, thestructure especially of Gopuram & Mandapam alsoindicates the public nature of the temple. Thefact that there had been contributions made by thepublic also leads to the conclusion that thetemple was not a private one. It is therefore crystal clear from the decision cited above, that sofar Tamil Nadu is concerned it is the consistent view that templeshere are presumed to be the public temples unless the contrary isproved and the burden of proof is on the plaintiff who press intoservice the plea that suit temple is a private temple. Au found thesuit temple is a Public temple and absolutely there is nothing to showthat the temple is a private temple. 28. The learned counsel for the plaintiff would contend that therespondents have not produced any evidence on their side to prove thatthe temple is situated in a poramboke land as alleged by them. 29. To the risk of reputation without being tautologous, I wouldhigh light that in the plaint that there is a specific averment asthough Duraikannu Gramini got the suit property from a partition asper an unregistered deed. But neither Duraikannu was examined nor thesaid document was produced. In such a case, the plaintiffs cannot beheard to contend that the area on which the temple is situatedhappened to be the ancestral property of Duraikannu. The argument of https://hcservices.ecourts.gov.in/hcservices/ the plaintiff would be that they renovated the building in the year1982 and it is not their case that they only constructed it. But infact deities such as Lord Vinayaga and Lord Murugan were installed inthe said temple and they made improvements in the temple. Even thoughthe plaintiffs have come forward with the case that there was nohundial, nonetheless D.W.1 Vasantha, the public Official who hasworked as Superintendent in H.R.& C.E. Department would clearly deposebefore the trial court that on 26.11.1985, when she officially visitedthe temple, there were two hundials in the temple and poojas wereconducted ; Public were visiting the temple and she had seen thepublic getting prasadam from the poojari of the temple. During themonth of Aadi, Amman Utsavam and Vinayagar Utsavam were undertaken.Kandasashti Utsavam was also undertaken from the temple. 30. It is clear that the conduct of religious procession would beindicative of the fact that it is a public temple. As such, herevidence is free from blemish and she had no axe to grind in thematter also. 31. The learned counsel for the plaintiff would argue that membersof general public were not examined to prove that it is a publictemple. Non examination of the members of the public is not at allfatal to the case of the defendants in the facts and circumstances ofthe case as discussed supra. 32. It is therefore crystal clear that the plaintiffs is a publictrust and the suit temple is a public temple. Accordingly, Point No.1is decided. Point No.2:-Even though the trial court might not have referred to the decisioncited on the side of the plaintiff and elaborated thereon, theratiocination adhered to by the trial court is found to be correct andno interference is warranted. Accordingly, point No.2 is decided. Inthe result, the appeal is dismissed. There shall be no order as tocosts.Sd/Asst.Registrar/true copy/Sub Asst.Registrarnvsri https://hcservices.ecourts.gov.in/hcservices/ ToThe I Assistant Judge, City Civil Court, Madras.Copy toThe Section Officer,VR Section Officer, High Court,Madras.+1cc to Mr.W.C.Thiruvengadam,Advocate Sr 32265+1cc to Govt. Pleader Sr 32417GV(CO)km/12.7.A.S.NO.825 of 1995