Judgment :- These two appeals have been preferred by respectively against the judgment and decree in the first defendant and defendants 2, 4 and 5 O.S.No.18 of 1978, Sub-Court, Padmanabhapuram. That suit was instituted by one N.Rama-Krishna Pillai under section 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act (hereinafter referred to as the Act) for setting aside the order dated 14.6.1976 passed by the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, Tirunel-veli-11 and confirmed by the Commissioner, Hindu Religious and Charitable Endowments, Madras, by order dated 21.9.1977 declaring that Chembaka Koothan Kandan Sastha Temple in Sasthamangalam, Kalkulam Village, Kanyakumari District, is a public temple. One Eswara Pillai (the second defendant in the suit and the first appellant in A.S.No.828/1980) filed O.A.No.7 of 1975 before the Deputy Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, Tirunelveli-11, under section 63(a) of the Act for a declaration that the temple in question is a public temple. According to him, the temple and its properties constituted a public trust having been endowed by various Hindu residents and the Poojas and Festivals were conducted and the expenses met by the collection from the public at large. One Neelakanta Pillai, who was acting as a trustee, misappropriated the funds of the temple and acted against the interest of the temple and this led to his removal and the election of respondents 3 to 5 in the suit as trustees. Thereafter, Neelakanta Pillai instituted a suit against defendants 3 to 5 in O.S.No.196 of 1966, District Munsifs Court, Padmanabhapuram, for a declaration of his right to the management of the affairs and possession of the temple. Though that suit was dismissed, on appeal in A.S.No.7 of 1970, Sub-Court, Padmanabhapuram, the removal of Neelakanta Pillai was held to be bad and it was held that it would be open to defendants 3 to 5 to move the appropriate authorities under the Act to declare the character of the temple. Claiming that the temple in question is a public temple, the second defendant in the suit initiated proceedings before the Deputy Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, Tirunelveli, for a declaration that the temple in question is a public temple. On service of notice on Neelakanta Pillai, he filed a counter denying that the temple in question is a public temple and claiming that the temple belongs exclusively to seven Nair families. On service of notice on Neelakanta Pillai, he filed a counter denying that the temple in question is a public temple and claiming that the temple belongs exclusively to seven Nair families. However, during the pendency of those proceedings Neelakanta Pillai and Ramakrishna Pillai, the plaintiff in O.S.No.18 of 1978, Sub-Court, Padmanabhapuram, was impleaded as the 6th respondent, in addition to one Lakshmi Pillai, as the legal representative of Neelakanta Pillai. In the course of the enquiry, after the evidence on behalf of the petitioner therein was closed and the case was posted for the evidence of Ramakrishna Pillai, on 15.6.1976, an adjournment was prayed for, which, however, was not granted and on the basis of whatever materials were available, the Deputy Commissioner, Hindu Religious and Charitable Endowments (Administration) Department proceeded to hold that the temple in question is a public temple. Aggrieved by this, Lakshmi Pillai and the plaintiff in O.S.No.18 of 1978, Sub-Court, Padmanabhapuram, preferred an appeal before the Commissioner, Hindu Religious and Charitable Endowments (Administration) Department and that appeal was also dismissed on 21.9.1977. To set aside the order declaring that the temple in question is a public temple, Ramakrishna Pillai instituted O.S.No.18 of 1978, Sub-Court, Padmanabhapuram. According to his case, his ancestors founded the temple in question with their own private funds for the benefit of their family and the members of their community and properties were also acquired for the benefit of the temple. The temple had also been recognised and regarded as a private temple from time immemorial by the then State of Travancore and that the members of the family had been manging the temple as well as its properties. Till 1928, the management was done by Neelakanta Pillai and thereafter, his eldest son Neelakanta Pillai took over the management and managed till 1956, when he was appointed as a village Officer, when the management was done through his brother, the plaintiff in O.S.No.18 of 1978 and he resumed the management after 1956. Subsequent to his death, Ramakrishnan Pillai claimed that he was looking after the affairs of the temple and its properties. Subsequent to his death, Ramakrishnan Pillai claimed that he was looking after the affairs of the temple and its properties. According to Ramakrishnan Pillai, the third defendant in the suit was evicted pursuant to a decree obtained in O.S.No.378 of 1975, District Munsifs Court, Padmanabhapuram and on account of that, he had instigated some persons belonging to Krishnan Vaka Community to claim that the temple in question is a public temple. When there was an attempted interference with the management of the temple and its properties, the then trustee Neelakanta Pillai instituted O.S.No.196 of 1966 and succeeded in obtaining a decree recognising his right to manage the temple and its properties in A.S.No.7 of 1970, which was also confirmed by this Court in S.A.No.698 of 1971, Gangadharan Pillai and others v. Neelakanta Pillai and another. According to the plaintiff in O.S.No.18 of 1978, Sub-Court, Padmanabhapuram, the order of the Deputy Commissioner confirmed by the Commissioner holding that the temple in question is a public temple is unsustainable as the guidelines enabling the authorities to decide whether a temple is a public temple or private temple, have not been borne in mind. It was also claimed that the presumption that the temple is a private one would be applicable to the temple in question. The absence of Prakaram, Gopuram for the temple, flag mast, hundi etc was relied on as indicating that the temple is not a public temple. It was also stated that the public, as of right, did not offer any worship and that performance of poojas participated in by some members of the public, would not clothe the temple with the character of a public temple. On the aforesaid grounds, the plaintiff in O.S.No.18 of 1978, Sub-Court, Padmanabhapuram, prayed for setting aside the order passed by the Deputy Commissioner and confirmed by the Commissioner and for a declaration that the temple in question and its properties belong to a private denominational trust for the benefit of the plaintiff as well as the members of the Nair community in Sasthamangaiam Desom. 2. In the written statement filed by the appellant in A.S.No.1134 of 1979, it was reiterated that the temple is a public one and that neither Neelakanta Pillai nor the plaintiff or the members of his family had any exclusive right of management over the temple and its properties. 2. In the written statement filed by the appellant in A.S.No.1134 of 1979, it was reiterated that the temple is a public one and that neither Neelakanta Pillai nor the plaintiff or the members of his family had any exclusive right of management over the temple and its properties. The order of the Deputy Commissioner, confirmed by the Commissioner, was stated to be in accordance with the report of the departmental Inspector. While accepting the absence of a gopuram and a flag mast, it was stated that even so, the temple would be a public one. Referring to the existence of a prakaram and a Hundi, it was pointed out that that would establish offerings by the public and the public character of the temple. An objection was also raised that Ramakrishnan Pillai in his individual capacity was not competent to file the suit without resorting to the provisions of Order 1, rule 8. C.P.C. 3. In the common written statement filed by defendant 2,4 and 5 they maintained that the temple in question was not founded by the ancestors of the plaintiff and that it is a public temple. The third defendant in his written statement also raised similar defences. Likewise, the sixth defendant in his written statement substantially supported the claim of the plaintiff. 4. On the aforesaid pleadings, after framing the necessary issues, and on a consideration of the oral as well as the documentary evidence, the learned Subordinate Judge found that the temple in question is not a public religious institution, but is a denominational trust of the Nair Community in Sasthamangaiam consisting of the members of the family of the plaintiff alone and that the order of the Deputy Commissioner confirmed by the Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, is liable to be set aside. On other issues also, findings in favour of the plaintiff were recorded and the suit was decreed as prayed for. It is correctness of this that is challenged in these appeals. 4. During the pendency of the appeals, Ramakrishnan Pillai (Plaintiff in O.S.No.18 of 1978, Sub-Court, Padmanabhapuram and the first respondent in these appeals) died and one Krishna Pillai has been brought on record as his legal representative and he figures as the 7th respondent in A.S.No.1134 of 1979 and as the 5th respondent in A.S.No.828 of 1980. 5. 4. During the pendency of the appeals, Ramakrishnan Pillai (Plaintiff in O.S.No.18 of 1978, Sub-Court, Padmanabhapuram and the first respondent in these appeals) died and one Krishna Pillai has been brought on record as his legal representative and he figures as the 7th respondent in A.S.No.1134 of 1979 and as the 5th respondent in A.S.No.828 of 1980. 5. In support of these appeals, the learned Government Advocate for the appellant in A.S.No.1134 of 1979 first submitted that in order to claim benefits and privileges as a religious denomination viz., as the Nair community, it would be necessary to establish that among other things, they have a common faith and that not having been made out, no relief could be prayed for or granted -on behalf of the Nair Community, as a religious denomination. Reliance in. this connection was also placed by the learned Government Advocate upon the decisions of the Supreme Court in Commissioner, H.R.&C.E. v. L.T.Swamiar, 1954 S.C.J.335= (1954) S.C.R.1005= (1954)1 M.L.J.596= 67 L.W. 1220= A.I.R.1954 S.C.282 and S.P.Mittal v. Union of India and others, (1983)1 S.C.J. 45= (1983)1 S.C.C.51= (1983)1 S.C.R.729= A.I.R.1983 S.C.1. 6. On the other hand the learned Counsel for the contesting respondent submitted that though the relief in the plaint refers to the denominational nature of the trust for the benefit of the members of the Nair community in Sastha-mangalam Desom yet, in effect and substance, the relief prayed for in the suit was only to set aside the order of the authorities under the Act declaring the temple to be a public temple and the mere inclusion of some other incidental relief would not alter the character of the suit land under section 70 of the Act. It was also pointed out that under section 63(a) of the Act, no power is conferred on the Deputy Commissioner to decide whether a temple belongs to a particular community. Reliance was also placed upon the decision in R.Chinnboyan and others v. The Commissioner for Hindu Religious and Charitable Endowments, Madras and another, (1975)2 M.L.J.294. 7. A reading of the plaint clearly makes out that the complaint voiced therein is in relation to the character of the temple. No doubt, it is stated in paragraph 1 of the Plaint that the ancestors of the plaintiff founded the Sastha Temple for the benefit of their family as well as the members of their community. 7. A reading of the plaint clearly makes out that the complaint voiced therein is in relation to the character of the temple. No doubt, it is stated in paragraph 1 of the Plaint that the ancestors of the plaintiff founded the Sastha Temple for the benefit of their family as well as the members of their community. Relief (a) in the Plaint also refers to the declaration of rights as a private denominational trust. However, the cause of action for the suit is stated to be the passing of the order by the Commissioner on appeal on 21.9.1977 and the receipt thereof on 27.11.1977. Obviously therefore, even according to the plaintiff, he was aggrieved by the order passed by the Commissioner affriming the order of the Deputy Commissioner holding that the temple in question is a public temple. It has also to be remembered that the proceedings originated out of an application under section 63(a) of the Act filed by the second defendant in the suit. Under section 63(a) of the Act, the power of the Deputy Commissioner is confined to a decision of the question whether an institution is a religious institution. No power is conferred under section 63 on the Deputy Commissioner to go into the question whether the temple is a denominational one or not. That there is no such power is also laid down in the decision in R.Chinna Boyan and others v. The Commissioner for Hindu Religious and Charitable Endow-wents, Madras and another, (1975)2 M.L.J. 294 relied on by the learned Counsel for the contesting respondent. Therefore, the adjudication of the Deputy Commissioner on an application under section 63(a) of the Act cannot be read as one relating to the rights of the Nair Community as a religious denomination. Under section 69 of the Act a right of appeal to the Commissioner is conferred on a person aggrieved by an order of the Deputy Commissioner. Under section 70(1) of the Act, any party aggrieved by an order of the Commissioner is enabled to institute a suit against that order in a civil court. In this case, Neelakanta Pillai was impleaded as a party to the proceedings in O.A.No.7 of 1975 only in his individual capacity and the plaintiff in O.S.No.18 of 1978, Sub-Court, Padmanabhapuram, was also not impleaded in a representative capacity on behalf of the religious denomination. In this case, Neelakanta Pillai was impleaded as a party to the proceedings in O.A.No.7 of 1975 only in his individual capacity and the plaintiff in O.S.No.18 of 1978, Sub-Court, Padmanabhapuram, was also not impleaded in a representative capacity on behalf of the religious denomination. Thus, taking into account the manner in which the dispute had originated under the relevant statutory provisions referred to earlier, it seems to the that the agitation of rights of a religious denomination could not have been done at all within the scope of a petition under section 63(1) of the Act or the appeal therefrom or even in a suit thereafter under seciton 70 of the Act. Therefore, the question of determination of rights of a religious denomination cannot arise at all. in view of this, it is not necessary to consider the question whether a common faith among the members of the Nair community had been established to enable them to claim the benefits as a religious denomination Those rights, if any, have to be agitated and adjudicated in other appropriate proceedings and not here and that matter is left open. 8. It was next contended by the learned Government Advocate that the temple had not been proved to be established by the ancestors of the plaintiff or the other members of the Nair community and therefore, a mere management of the temple without establishing it will not enable the community to claim the benefits of the protection under Article 26 of the Constitution of India. Reliance in this connection was placed on the decision in Azeez Basha ‘v. Union of India, (1968)2 S.C.J.299= A.I.R.1968 S.C.662 and an unreported judgment of Gokulakrishnan, J. as he then was in S.A.No.1235 of 1971 Kesava Mudaliar and 3 others v. C.V.Than-gavelu Mudaliar and another, dt. 14.12.78. As already pointed out, having regard to the origin of the dispute and the scope of the enquiry under section 63(a) of the Act, the question of availability of protection under Article 28 of the Constitution of India does not arise. It is therefore unnecessary to further consider this submission or the decisions relied on in support thereof. 9. 14.12.78. As already pointed out, having regard to the origin of the dispute and the scope of the enquiry under section 63(a) of the Act, the question of availability of protection under Article 28 of the Constitution of India does not arise. It is therefore unnecessary to further consider this submission or the decisions relied on in support thereof. 9. The learned Government Advocate submitted 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 and that had not been made out on the evidence. Reliance in this connection was placed upon the decision in T.V.Mahalinga Iyer v. The State of Madras and another, (1981)1 M.L.J. (S.C.)1= A.I.R.1980 S.C.2036 and Sri Chidambareswara Sivagami Ambigai Temple by their Managing Trustee S.V.R. A.Kallakaruppan Chettiar v. The Commissioner of Hindu Religious and Charitable Endowments, Madras, (1966)1 M.L.J.1093= I.L.R. (1965)2 Mad.404= 78 L.W.404= A.I.R. 1966 Mad.99. On the other hand, the learned Counsel for the contesting respondent submitted that even with reference to temples situate in areas originally included in the territories of Kerala and Malabar but subsequently added on to Tamil Nadu, the presumption applicable would be that the temple is a private one and it would be for those claiming the temple to be public, to establish it. The learned Counsel in this connection drew attention to the decisions in Munda-cheri Koman v. Thachangat Puthan Veettil Achuthan Nair and others, L.R. (1934) 61 I.A.405= 67 M.L.J.788= I.L.R.58 Mad.91 = 40 L.W.428= A.I.R.1934 P.C.230. There it has been pointed out that in the greater part of the Madras Presidency where private temples are practically unknown, the presumption is that temples and the endowments form public charitable trust; but in the case of a Nair temple in Malabar, there was no such presumption, for, it was natural for tarwad to have established their private temples for their own use and therefore, there was no presumption one way or the other and the issue must be determined upon the evidence. In Sri Chidambareswara Sivagami Ambigai Temple by their Managing Trustee v. The Commissioner of Hindu Religious and Charitable Endowments, Madras, (1966)1 M.L.J.109- A.I.R.1966 Mad. In Sri Chidambareswara Sivagami Ambigai Temple by their Managing Trustee v. The Commissioner of Hindu Religious and Charitable Endowments, Madras, (1966)1 M.L.J.109- A.I.R.1966 Mad. 99 also it has been accepted that in the case of temples in Malabar and Kerala, the presumption is not that the temples are public, though that decision related to a temple in Pudukottai State. In dealing with the question of presumption regarding the character of a temple situate in an area which formed part of erstwhile Malabar and Kerala, a Division Bench in Thanu-malayaperumal Mudaliar v. Commissioner, H.R. & C.E., (1975)2 M.L.J.310= A.I.R.1976 Mad.26= 88 L.W.649 referred to the decision in Sri Chidambareswara Sivagami Ambigai Temple by their Managing Trustee S.V.R.A.Nallakaruppan Chettiar v. The Commissioner of Hindu Religious and Charitable Endowments, Madras, (1966)1 M.L.J.109 A.I.R.1966 Mad.99 and stated that there were many private temples in the State of Travancore as it then was and the State recognised private ownership of religious institutions. Another Division Bench in R.Mayaperumal and another v. Azhagappan Nadar (died) and others, (1984)2 M.L.J.422 referring to Sri Chidambareswara Temple v. Commissioner, H.R. & C.E., (1966)1 M.L.J.109= A.I.R.1966 Mad.99 and Thanumalaya Perumal Mudaliar v. Commissioner, H.R. & C.E., (1975)2 M.L.J.330= A.I.R.1976 Mad.26 laid down that those decisions recognised the existence of private temples in Travancore and would not invoke the usual presumption that in the case of temples in South India, they are public unless the person, who asserts it is private, discharges the onus of proof which is on him to the satisfaction of the judicial authority. From these decisions, it appears that the character of the temple cannot be decided merely as a matter of presumption. The decision in T.V.Mahalinga Iyer v. The State of Madras and another, (1981)1 M.L.J. (S.C.)1 = A.I.R.1980 S.C.2036 related to a temple in Tamil Nadu and was not concerned with a temple as we have in this case located formerly in Malabar or Kerala and now in Tamil Nadu. Therefore, the rule of presumption set out in this decision may not be applicable to this case. Besides, where there is evidence available with reference to the character of the temple, it would be desirable and proper that the decision is arrived at on the basis of the evidence made available and not solely on presumption. Therefore, the rule of presumption set out in this decision may not be applicable to this case. Besides, where there is evidence available with reference to the character of the temple, it would be desirable and proper that the decision is arrived at on the basis of the evidence made available and not solely on presumption. Under those circumstances, it is not possible to accept the contention of the learned Government Advocate that the temple in question should be presumed to be a public one. 10. That leaves for consideration the last contention of the learned Government Advocate that on the evidence the temple in question had not been established to be a private one. In this connection, the learned Counsel drew attention to the evidence of P.W.1 and D.W.1. On the other hand, the learned Counsel for the contesting respondent, while relying upon the evidence of P.W.I and the admissions of D.W.I submitted that the basic characteristics and the essentials of a public temple as highlighted in the decision in Thanumala-yaperumal Mudaliar v. The Commissioner, H.R. & C.E., (1975)2 M.L.J.310= A.I.R.1976 Mad.26 have not been established and therefore, the Court below was right in its conclusion that the temple in question is only a private temple. 11. It is common ground that there is no documentary evidence throwing light upon the nature of the temple and that its character has to be determined only on the basis of the available oral evidence. Ramakrishnan Pillai, the deceased plaintiff in the suit was examined as P.W.1. In the course of his chief-examination, he stated that his ancestors built the temple and that in Sasthamangalam where the temple is situate, there are seven Nair houses. He has also further stated that the affairs relating to the temple were looked after by his family members. His evidence is also to the effect that there is no Hundial, no gopuram, no flag mast, no bells and no prakaram in the temple. He is also positive that the public never contributed for the maintenance of the temple. In the course of his cross-examination, P.W.I stated chat the temple in question belonged to the seven Nair families who were living in three houses known as Konathu Veedu, Valiya Veedu and Mela Veedu. He would admit that there is no record to show that the temple is a private temple. In the course of his cross-examination, P.W.I stated chat the temple in question belonged to the seven Nair families who were living in three houses known as Konathu Veedu, Valiya Veedu and Mela Veedu. He would admit that there is no record to show that the temple is a private temple. In the course of the further cross-examination at the instance of the appellant in A.S.No.1134 of 1979, he reiterated that his family members established the temple, though the year of such establishment was not known and that pooja and administration had been done by his ancestors and not by others. The second defendant, while giving evidence as D.W.I has, in the course of his cross-examination, admitted that the temple in question is the only temple in Sastha-mangalam, that in that village, there are only three Nair houses and that they are also their ancestral houses. He would frankly admit that he does not know who built the temple and when. That there is no hundial in the temple was admitted by him. The compound wall of the temple was also admitted by him to have been constructed by the brother of the plaintiff. Though he stated that others contributed, he confessed that there are no records to establish it. His further evidence is that whatever articles have been given, they were so given only by Neelakanta Pillai and no other member of the community had given anything. He also admitted that there is no record to show the contributions by the public in any of the matters connected with the temple. 12. In this state of evidence, the character of the temple has to be decided. The norms have been succinctly laid down by Ramaprasada Rao, J. as he then was, in the decision in Thanumalayaperumal Muda-liar v. Commissioner, H.R. & C.E., (1975)2 M.L.J.310= A.I.R.1976 Mad.26. Applying those norms with reference to the evidence available, it is seen that the evidence does not disclose the existence of a maha-mantapam, idols of the principal and other deities, utsavamurthies, performance of daily poojas and special poojas by the public belonging to different communities without let or hindrance. The evidence does not disclose that the temple is used generally by the community as of right as a place of public religious worship. There is no hundial. The evidence does not disclose that the temple is used generally by the community as of right as a place of public religious worship. There is no hundial. No collections are made from the public for the performance of any festivals or for its maintenance. No member of the public has come forward to say that he had contributed amounts for the building maintenance or the performance of the poojas in the temple. The evidence does not disclose that the public, as of right, had worshipped in the temple. Even assuming that some worshippers had been permitted, that can be attributed only to the sentiment of a Hindu which would not prevent another from offering worship and making offerings and not recognition of any right as such. At best, it may be referable to the leave and licence granted by the owner and cannot certainly indicate a dedication to the public. There is no Garbagraham; there is no Dwajasthambam; there is no prakaram and there is no hundi. Therefore, no Kanik-kai is offered or collections are made in the temple. There is no evidence regarding the conduct of the festivals with the contribution by the public Merely from the circumstances that at the time when poojas are performed, some members of the public may be allowed, it does not follow that the temple ceased to be a private one. On a careful consideration of the evidence of P.W.1 and D.W.1 it is seen that the essential charactertistics of a public temple are totally lacking in this case. Under those circumstances, the Court below was right in holding that the temple in question is a private temple and not a public temple. 13. It only remains to refer to an argument raised by the learned Counsel for the appellant in A.S.No.828 of 1980. He submitted that the suit had been instituted in a representative capacity without resorting to the procedure prescribed under Order 1, rule 8, C.P.C. Reference was also made in this connection to the decision in Sat. Munni Devi and others v. Satgur Dayal Tandem and others, A.1.R.1973 All.281. Though the short cause title to the plaint shows that the suit had been filed in a representative capacity, the rest of the plaint does not show that the institution of the suit was in a representative capacity. Munni Devi and others v. Satgur Dayal Tandem and others, A.1.R.1973 All.281. Though the short cause title to the plaint shows that the suit had been filed in a representative capacity, the rest of the plaint does not show that the institution of the suit was in a representative capacity. Besides, as pointed out earlier, having regard to the arising of the dispute by the filing of an application under section 63(a) of the Act, the rights asserted could only be individual or personal and cannot be representative. The plaintiff cannot therefore be non-suited on this ground. In view of the foregoing discussion, and taking into account the scope of the suit, the decree declaring that the temple is a private denominational trust for the benefit of the plaintiff and the members of the Nair community cannot be sustained. Consequently, the declaration granted to that effect by the court below has to be deleted, while maintaining the decree relating to the setting aside the order passed by the commissioner, Hindu Religious and Charitable Endowments (Administration) Department. Therefore, the appeals are allowed in part. There will be no order as to costs.