Appukutty v. Kuniyil Achuthan — 1988 DIGILAW 269 (KER)

JUDGMENT Shamsuddin, J. The defendants in O.S. No. 319 of 1981 on the file of the Court of Subordinate Judge of Kozhikode, are the appellants. 1.The said suit was filed by the Respondent herein for cancelling the order passed by the Commissioner, Hindu Religious and Charitable Endowment (Administration) Department, Calicut in Appeal No. 2 of 1981. 2. The facts leading to the filing of the above suit may be summarised as follows:-According to the Plaintiff, he is the present karanavar of the ancient Thiyya family called Kuniyil family in Calicut and the family house is located in Kuniyilparamba. In a portion of the said paramba shown as A Schedule to the plaint, there is a temple called Kuniyil temple described in the plaint B Schedule belonging to the family of the Plaintiff. The Plaintiff became the karanavan in 1948 and since then be was in possession of the property including the temple, and prior to him, the prior karanavans of the family were in possession and enjoyment of the property including the temple. The presiding deity of the temple is God Siva. There are no properties attached to the temple and the Kuniyil family is to give the required funds for all necessary expenses of the temple. No member of the Hindu Public has right to worship in the temple and the premises had never been used as a public religious institution. While so, the Defendants and some others filed O.A. No. 2 of 1971 before the Deputy Commissioner, Hindu Religious and Charitable Endowment (Admn.) Department Calicut, against the Plaintiff under Section 57(1) of the Madras Hindu Religious and Charitable Endowment Act (hereinafter referred to as 'the Act'), seeking a declaration that the temple shown in the B Schedule to the plaint is a public temple. The said petition was dismissed by the Deputy Commissioner on 6th December 1980 holding that it is a private temple. The Defendants thereupon filed an appeal before the Commissioner and the said appeal was allowed holding that the temple is a place of public religious worship. Alleging that the decision of the Commissioner in appeal is illegal and void, the Plaintiff filed the above suit and sought the cancellation of the order passed by the Commissioner. 3. The Defendants thereupon filed an appeal before the Commissioner and the said appeal was allowed holding that the temple is a place of public religious worship. Alleging that the decision of the Commissioner in appeal is illegal and void, the Plaintiff filed the above suit and sought the cancellation of the order passed by the Commissioner. 3. The Defendants filed written statement contending that the predecessors of the Plaintiff hailed from Ramanattukara and the seat of the family house is not in Kuniyilparamba and the Tarwad of the Plaintiff had no ownership over the temple buildings. According to them the collections were taken from the public for daily expenses of the temple and for conduct of festivals. The reconstruction and renovation of the temple and construction of the structures were also done by members of Hindu Public raising contributions. They also alleged that there was a Committee constituted for the management of the temple and the temple is a public temple. The festivals and rites in the temple were also conducted by raising contributions from the public. A senior member of the Kuniyil family was co-operating in connection with the management of the temple and conduct of festival for the last 35 years. It is also alleged in the written statement , that the marriages of members other than that of the Plaintiff's family were conducted from the said temple, and in these circumstances, they prayed for dismissal of the suit. 4. On behalf of the Plaintiff, the Plaintiff himself was examined as P.W. 1 and Exts. A-1 to A-26 were marked. On behalf of the Defendants; D.Ws. 1 to 6 were examined and Exts. B-1 to B-29 were marked. 5. On consideration of oral and documentary evidence, the lower Court found that the temple is a private temple belonging to the tarwad of the Kuniyil family and a decree was passed as prayed for. 6. In this appeal, the learned Counsel for the Appellants challenged the correctness of the finding of the lower Court. He raised the following points: (1) The appeal is not maintainable, since the commissioner whose order is challenged was not made a party to the suit, (2) the Plaintiff has not produced any title deed or other documents to establish the title of the Plaintiff, and (3) the evidence adduced establishes that the temple in question is a public temple. 7. 7. As regards the first contention, it has to be stated that the Appellants have not raised any such contention in the written statement. No issue was framed relating to non-joinder of the Commissioner. In the Memorandum of Appeal also no ground has been taken that the suit is not maintainable for non-joinder of Commissioner. In these circumstances, there is no justification to permit the Appellants to raise such a contention for the first time at the time of argument. 8. Section 51 of the Act provides that any decision taken by the Dy. Commissioner, is subject to the right of suit or the appeal. We do not think that in filing a suit for cancelling the order passed by a statutory authority, that authority is a necessary party or that he should be a formal party. For the above reasons we have ho hesitation to reject the first contention raised by the Appellants as untenable. 9. It is next contended that the Plaintiff, has not produced any title deed to show that the Plaintiff's family has title to the property where the temple is located. According to the learned Counsel for the Appellants, the only evidence adduced in the case to prove the title of the family of the Plaintiff is Ext. A-16. Ext. A-16 is stated to be the extract from Malabar Police sheet published in the gazette. It is seen from Ext. A-16 that certain documents and properties were stolen from the house of Kuniyil Sankaran and his brother Kuniyil Chathu. Ext. A-16 contains the description of the properties so stolen. Item No.3 therein is the title deed of Kuniyilparamba. belonging to the tarwad. According to the learned Counsel for the Appellants, an entry in a gazette of Malabar Police Sheet to the effect that title deed of Kuniyilparamba was stolen is not sufficient to establish the title of the Plaintiff's family to Kuniyilparamba. Ext. A-16 is a very old document of the year 1886 which came into existence at a time when there was no dispute in regard to the title to Kuniyilparamba and entry in such a document to the effect that the title deed relating to Kuniyilparamba was stolen and removed is certainly entitled to great weight. Further there are other pieces of evidence to show that Kuniyil family had title to this property. Ext. A-17 is a settlement register of the year 1978-79. Further there are other pieces of evidence to show that Kuniyil family had title to this property. Ext. A-17 is a settlement register of the year 1978-79. It shows that Kuniyil Achuthan is the owner of Kuniyilparamba bearing Sy. No.981/1. 10. The entries in the revenue records are good evidence in the absence of proof that those entries are fraudulent or forged. In Vishwa Vijai Bharti v. Fakhrul Hasan and Ors., MANU/SC/0388/1976 : 1976 Supp. S.C.R. 519 : A.I.R. 1976 S.C. 1485 the Supreme Court observed as follows: It is true that the entries in the revenue record ought, generally, to be accepted at their face value and Courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title. In Commissioner of Wealth Tax Andhra Pradesh v. Officer-in-charge (Court of Wards), Paigah A.I.R. 1977 S.C. 113 the Supreme Court held that entries in revenue records are good prima facie evidence since they are based on some quasi judicial enquiry. This position has reiterated by the Supreme Court in Mohinder Singh v. State of Punjab and Ors. 1977 (3) S.C.C. 502 where it was held that the entry in revenue records is an important piece of evidence. 11. The Defendants have no case that the entries in Ext. A-17 are fraudulent or forged. In the circumstances, it has to be held that Ext. A-17 shows that Kuniyil paramba belonged to the family of the Plaintiff. 12. In addition to this, there are other revenue records to which our attention has been drawn, which would indicate that Kuniyil family had title to Kuniyilparamba and that the family has been dealing with Kuniyil property and the affairs of Kuniyil Temple, Ext. A-3 is an order dated 11th December 1945 granting building permission issued by the Calicut Municipality. That relates to the construction of temple in Kuniyilparamba. That has been issued in favour of K. Imbichekkan, who admittedly is a member of Kuniyil family. Ext. A-3 is an order dated 11th December 1945 granting building permission issued by the Calicut Municipality. That relates to the construction of temple in Kuniyilparamba. That has been issued in favour of K. Imbichekkan, who admittedly is a member of Kuniyil family. Ext. A-4 is a similar order dated 14th June 1946 grafting building premission issued by the Calicut Municipality for construction of a tank in Kuniyilparamba. That also was issued in favour of K. Imbichekkan, Ext. A-5 is a licence book issued under the Arms Act, 1878, for keeping swords in the temple. The said licence for two swords initially, but subsequently converted into licence for four swords. The evidence in the case indicates that these licences related to the swords kept in the temple. The licence is in the name of Kuniyil Achuthan, the Plaintiff in the suit. Ext. A-5 further shows that he has been paying the licence fee and getting the licence renewed, from time to time. 13. Ext. A-6 is a receipt for payment of land revenue issued in favour of Kuniyil Chathu for Fasli, 1309. Ext. A-7 is a similar receipt for payment of revenue issued to Kuniyil Sankaran towards Patta No.91 for Fasli 1316. Though in the former receipt there is no indication as to the property in respect of which the land revenue was paid, Exts. A-7 clearly indicates that payment was towards patta No .91 which is relating to Kuniyilparamba as can be seen from the settlement register. Ext A-8 is a demand notice dated 1st May 1905 issued by the Calicut Municipal Council to K. Imbichekkan for property tax relating to Kuniyilparambil padinhare pakuthi khandam. Exts. A-9 and A-10 are also demand notices dated 1st May 1905 issued by the Calicut Municipal Council to K. Imbichekkan demanding land tax. Ext. A-11 is a receipt issued to Kuniyil Imbichekkan in respect of payment of land tax for Fasli 1355 in respect of patta 91 which relates to the plaint schedule properties and Ext A-12 is the revenue receipt issued by the Adhikari, Kalathil Amsom in respect of the payment of land revenue for Fasli 1346 to Kuniyil Cheriya Chanthu, another member of the family in respect of Patta No.91 which relates to the plaint schedule properties. Ext. Ext. A-13 also is a receipt dated 16th January 1966 issued in favour of the Plaintiff for payment of land revenue in respect of patta No.91 and Ext. A-14 dated 12th February 1982 is another receipt issued in favour of the Plaintiff in respect of the same property. 14. There are also documents to show that Kuniyil family members have been dealing with property and making application for construction of structures and handling with matters relating to administration of the temple. 15. Ext. A-15 is stated to be a draft of an application sent to the Collector regarding the transfer of licence in respect of the swords kept in the temple in favour of Kuniyil Bapputty who was the then senior member of the Kuniyil family. We are not relying on the document since it was not legally proved. Reference has already been made to Ext. A-16 which indicates that the title deed in respect of the property was stolen. 16. The evidence of P.W. 1 clearly shows that Kuniyil Tarwad is an ancient family and Kuniyilparamba and the temple therein belonged to the family. The family and the paramba had the same name and the family house is situated in the same paramba. P.W. 1 deposed that there is also Devi Kshethram and Pamboori Kirathan's Prathishta and the Prathishta of Karivala Potten, that the temple came into existence about 300 years ago, and that the temple and other structures were constructed by the members of the tarwad. He also stated that temple is a small one and the festivals that used to be conducted are 'Sankranthi' 'Mandalam' and 'Ayilyam Thira', and that from 1970 onwards Thira festival was not conducted as it was found that on astrological calculation that it would do harm to the family. According to him, the expenses in the temple were met by the members of Kuniyil family and sometimes their relations also had offered contributions and the temple was never opened to Hindu public. He further stated that the temple is situated in a portion of Kuniyilparamba, that Hindu, public have not paid any contribution towards the maintenance and expenses, of the temple, that the Hindu public were not using the temple for worship. 17. Though P.W. 1 was cross-examined at length nothing substantial has been brought out to discredit his testimony. He further stated that the temple is situated in a portion of Kuniyilparamba, that Hindu, public have not paid any contribution towards the maintenance and expenses, of the temple, that the Hindu public were not using the temple for worship. 17. Though P.W. 1 was cross-examined at length nothing substantial has been brought out to discredit his testimony. Of course, counsel for the Appellants was able to elicit from P.W. 1 that P.W. 1's father's brother Kelu's daughter was married to Mathilakath Kelan Compounder and they had a son Viswanathan and the said Viswanathan's name was engraved in the temple. Similarly he admitted that Kozhikodan family had marriage relationship with the Plaintiff's family and the name of Kozhikoden Chanthu is engraved on the door of the temple. He denied having collected amounts from the Public for maintenance of the temple or for conduct of festivals in the temple and also having conducted a kuri for the purpose of the temple, and signed the receipts produced by the Defendants, purported to be issued by the Plaintiff. 18. On the other hand, D.W. 1 deposed that the temple in question is a public temple and is administered by the local people from 1951 onwards. He also deposed that a local committee had been constituted for the purpose and that he was the Joint Secretary of the Committee, which was known as Kuniyil Kshethra Samrakshana Samithi. He also stated that the committee was registered in 'Hindu Kshetra Samrakshana Samithi'. He further stated that the expenses in the temple are met by collection and also utilising the offerings in the Bandaram maintained in the temple. He also deposed that marriages used to be conducted in the temple by the Hindu public and they used to feed people and also conduct festivals during the period of Mandalam. According to him the Hindu public used to worship in the temple and they used to give offerings such as oil, coconut oil, etc. in the evening. He further stated that the Plaintiff is not a member of Kuniyil family and he was staying there only in the capacity as a Karayma tenant. He also stated that the Plaintiff was the President of the Committee till 1970 and Kozhikodan Krishnan was a committee member. in the evening. He further stated that the Plaintiff is not a member of Kuniyil family and he was staying there only in the capacity as a Karayma tenant. He also stated that the Plaintiff was the President of the Committee till 1970 and Kozhikodan Krishnan was a committee member. He further stated that for conducting festival, permission was sought from the Assistant Commissioner, Hindu Religious and Charitable Endowment (Admn.) Department by the Committee and Ext. B-6 is the permission granted for conducting the festival. He proved Ext. B-8 as a petition submitted by the President and other office bearers of the Kshethra Samithi complaining that the Plaintiff had issued printed leaflets preventing the conduct of Thira. Ultimately, the Appellants sought a declaration that the temple was a public temple and also permission to conduct Thira festival. According to him the temple was established by Mangattachan during the regime of Zamoodiri and for administration was entrusted to a Nambudiri. Later on the Illom of Namboodiri ceased to exist and the temple went into ruins. When Sree Narayana Guru and Chaithanya Swami came to the locality to instal Prathishta in Sreekandeswaram temple they came to know about the ruinous condition of the temple. Thereupon Sree Narayana Guru visited the temple and appraised the people of the power of Siva prevailing in the temple and on his advice the members of the Thiyya community residing around the temple renovated the temple. He also deposed that Kiratha temple was constructed by Kozhikodan Chandu and his name was engraved on the door of the temple. ' According to him, the tiles for Devi temple were supplied by Malikakandi Kumaran and Chettikulangafa Chathu and Pamboori Kariyathan temple was constructed by Mathilakath Viswanathan and his (Viswanathan's) name was engraved there. He further stated that Kiriyathan's Thara was constructed by Kozhikoden Veetti Devaki. According to him, Karivalli Potten was constructed by C.R. Appu. 19. It may be noticed that before the Deputy Commissioner, or the Commissioner, he had no case that Mangattachan constructed the temple and entrusted the temple for management to Namboodiri. The subsequent visit of Sree Narayana Guru and renovation of the temple by the members of the Thiyya community residing around the temple on the advice of Sree Narayana Guru was also not a matter raised before those authorities. The subsequent visit of Sree Narayana Guru and renovation of the temple by the members of the Thiyya community residing around the temple on the advice of Sree Narayana Guru was also not a matter raised before those authorities. In para 6 of the written statement, the Defendants averred that the tharwad of the Plaintiff's family had no right to the temple and that the expenses of the temple were met, festivals were conducted, and the temple renovated by raising public contributions. It was also stated in the written statement that the committee known as Kuniyil Kshetra Committee was administering the affairs of the temple and thus the temple had become a public temple. Of course in para 10 of the written statement, the Defendants averred that to the Defendants knowledge, the dedication was at the time when Mangattachan was the Chief Adviser of Zamoodiri, Calicut. Apart from these assertions, there is absolutely nothing to support the story spoken to by the Defendants, regarding the construction and dedication of Mangattachan and subsequent renovation after the visit of Sree Narayana Guru and management by Thiyya community. In fact, in the cross-examination, D.W. 1 admitted that he saw the records relating to the temple only after the beginnig of the case. He also stated that he had seen only two documents relating to plaint schedule properties and from those documents, he understood that the Plaintiff had karayma right. He also stated that after the death of Sreenivasan and Samikutty no new President or Secretary was elected. To a question, whether it was not Achuthan and before him, his predecessors who were conducting the pooja and managing the affairs of the temple, his answer was only that Achuthan used to light lamp, but it was not done on the basis, that the temple belonged to his family. He admitted that from the time of Imbichekkan, who is the brother of the father of the Plaintiff, Kuniyil family had connection with the temple. Though he spoke of entrustment of Management by Mangattachan to a Namboodiri, he Admitted that he did not know which was the Illom connected with the temple. He also admitted that he was also not able to deny that the persons referred to by him as having constructed some structures and made some contributions to the temple, are all individual connected with Kuniyil family. He also admitted that he was also not able to deny that the persons referred to by him as having constructed some structures and made some contributions to the temple, are all individual connected with Kuniyil family. D.W. 2 was examined to prove that he conducted Poojas at the temple since 1953 onwards. But be said that he was the poojari of Azhakodi Devi Temple and he was doing poojas at Azhakodi Devi Temple from 8 a.m. to 11 a.m. and from 5.30 p.m. to 8 p.m. He also deposed that it was a committee which used to give remuneration but strangely not a single receipt was produced to show the payment by committee. D.W. 3 is Viswanathan. He stated that in his name a temple was constructed by his father and his name was engraved inside the said temple. He admitted that his mother Janaki was a member of Kuniyil family. D.W. 4 stated that the temple committee was conducting Chitty and he Was a subscriber to that kuri. But in the cross-examination he admitted that he had no connection with the temple. D.W. 5 deposed that Karivalli Potten temple was constructed by C.R. Appu and Chozhi and Appu was his father's brother and Chozhi was a relation of the wife of Appu. He also deposed that the administration of the temple was conducted by the Committee. In his cross-examination, he admitted that Kuniyil Appu's ancester Sankaran had married the sister of the grandfather of the Plaintiff. D.W. 6 deposed that he belonged to Kozhikoden family and the Siva temple was constructed by Kozhikoden Chanthu. He admitted that he was not in any way connected with the temple committee. The lower Court considered the evidence of these witnesses examined on behalf of the Defendants and was not satisfied that their evidence on the question whether the temple is a public temple is truthful and acceptable. On an anxious consideration of their evidence we also do not find any reason to differ from the view taken by the lower Court. 20. The learned Counsel for the Appellants strenuously relied on certain documents produced to substantiate that the affairs of the temple were conducted by the Committee. Ext. B-1 is a receipt purportedly issued by the Plaintiff in favour of Sri M. Ramankutty, in respect of collection for Thira festival. Ext. 20. The learned Counsel for the Appellants strenuously relied on certain documents produced to substantiate that the affairs of the temple were conducted by the Committee. Ext. B-1 is a receipt purportedly issued by the Plaintiff in favour of Sri M. Ramankutty, in respect of collection for Thira festival. Ext. B-2 is alleged to be a list of members of the festival committee and Ext. B-3 is purported to be a receipt issued by the Plaintiff in his capacity as President of the temple committee. The genuineness of these documents is questioned by the Plaintiff and he had also denied his signature in Exts. B-1 and B-3. Ext. B-2 does not contain any signature. Ext. B-4 purported to be a receipt issued by Dr. P. Subramanian, for receipt of the amounts of prized kuri. Ext. B-6 is a permission granted by the Assistant Commissoner, Hindu Religious and Charitable Endowment (Admn.) Department permitting the 1st Appellant to conduct the festival, Exts. B-13 and B-14 series and Exts. B-l5 to B-20 are purported to be the receipts issued by the Plaintiff for receipt of contribution for Kuniyil temple. Ext. B-21 is another receipt purported to be issued by the Plaintiff wherein it is stated that the temporary committee, formed for the conduct of Thira festival became defunct and he received the balance amount of Rs.100. Ext. B-22 is purported to be a letter written-by the Plaintiff in respect of the kuri and Ext. B-23 is purported to be a leaflet distributed by the Plaintiff about the conduct of festival of the temple. Ext. B-24 is purported to be an account book relating to the temple. The genuineness of these documents are questioned by the Plaintiff. The learned Counsel for the Appellants strenuously contended that these documents would show that the Hindu public were worshipping in the temple and also were participating in the festivals conducted in the temple and also were making contributions and these circumstances, are sufficient to make the temple a public temple. 21. Even assuming that these are genuine documents the question that has to be considered is whether these documents are sufficient to hold that Kuniyil temple is a public temple. The Supreme Court has considered the distinction between private and public temples in a number of cases. In Mahant Parichchan Das v. Bihar State Board of Religious Trusts and Ors. 21. Even assuming that these are genuine documents the question that has to be considered is whether these documents are sufficient to hold that Kuniyil temple is a public temple. The Supreme Court has considered the distinction between private and public temples in a number of cases. In Mahant Parichchan Das v. Bihar State Board of Religious Trusts and Ors. A.I.R. 1980 S.C. 514 the Supreme Court said: The fact that members of public were permitted to go to the temple without any hindrance might not be a circumstance which by itself would conclusively establish that the temple was a public temple in the absence of an element of right in the user of the temple by the public. In Radhakanta Deb and Anr. v. The Commissioner of Hindu Religious Endowments, Orissa A.I.R. 1981 S.C. 798 also the distinction between public and private temples came up for consideration of the Supreme Court. The Court said: It is well settled that under the Hindu law, however, it is not only permissible but also very common to have private endowments which though are meant for charitable purposes yet the dominant intention of the founder is to instal a family deity in the temple and worship the same in order to effectuate the spiritual benefit to the family of the founder and his descendants and to perpetuate the memory of the founder. In such cases, the property does not vest in God but in the beneficiaries who have installed the deity. In other words, the beneficiaries in a public trust are the general public or a section of the same and not a determinate body of individuals as a result of which the remedies for enforcement of charitable trust are some what different from those which can be availed of by beneficiaries in a private trust. The members of the public may not be debarred from entering the temple and worshipping the deity but their entry into the temple is not as of right. This is one of the cardinal tests of a private endowment.... * * * * The question as to whether the religious endowment is of a private nature or of a public nature has to be decided with reference to the facts proved in each case and it is difficult to lay down any test or tests which may be of universal application. * * * * The question as to whether the religious endowment is of a private nature or of a public nature has to be decided with reference to the facts proved in each case and it is difficult to lay down any test or tests which may be of universal application. It is manifest that where the endowment is lost in antiquity or shrouded in mystery, there being no document or revenue entry to prove its origin the task of the Court becomes difficult and it has to rely merely on circumstantial evidence regarding the nature of the user of the temple. In the instant case, however, as there are two documents which clearly show the nature of the endowment, our task is rendered easier. It is well settled that the issue whether a religious endowment is a public or a private one must depend on the application of legal concept of a deity and private endowment as may appear from the facts proved in each case. The essential distinction, between a private and a public endowment is that whereas in the former the beneficiaries are specified individuals in the latter they are the general public or class of unascertained people. This doctrine is well-known and has been accepted by the Privy Council as also by this Court in a large catena of authorities. This being the essential distinction between the nature of a public or a private endowment, it follows that one of the crucial tests to determine the nature of the endowment would be to find out, if the management of the property dedicated is in the hands of the strangers or members of the public or in the hands of the founders or their descendants. Other factors that may be considered would be the nature of right of the worshippers, that is to say, whether the right to worship in the temple is exercised as of right and not as a matter of concession. This will be the strongest possible circumstance to indicate that the endowment was a public one and the beneficiaries are the worshippers and sot a particular family. After all, an idol is a juristic person capable of holding property and the property dedicated to the temple vests in the deity. This will be the strongest possible circumstance to indicate that the endowment was a public one and the beneficiaries are the worshippers and sot a particular family. After all, an idol is a juristic person capable of holding property and the property dedicated to the temple vests in the deity. If the main worshippers are the members of the public who worship as a matter of right then the real purpose is to confer benefit on God. Some of the circumstances from which a public endowment can be inferred may be whether an endowment is made by a person who has no issue and who after installing the deity entrusts the management to members of the public or strangers which is a clear proof of the intention to dedicate the temple to public and not to the members of the family. Where, however, it is proved that the intention of the testator or the founder was to dedicate the temple merely for the benefit of the members of the family or the descendants, the endowment would be of a private nature. The mere fact that members of the public are allowed to worship by itself would not make an endowment public unless it is proved that the members of the public had a right to worship in the temple. In paragraph 14 of the above Judgment, the Supreme Court laid down the following guidelines to determine the question whether an endowment is of a private or of a public nature. (1) Where the origin of the endowment cannot be ascertained the question whether the user of the temple by members of the public is as of right; (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature; (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment. In Pratapsinhji N. Desai v. Deputy Charity Commissioner, Gujarat and Ors. A.I.R. 1987 S.C. 2064 the Supreme Court said: The essence of a public endowment consists in its being dedicated to the public; and in the absence of any document creating the endowment, long user is the material factor from which an inference of dedication may arise. The distinction between a private and public endowment is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. The distinction is succinctly brought out in Mulla's Hindu Law in para. 424 at pp. 544-545 in these words: Religious endowments are either public or private. In a public endowment the dedication is for the use or benefit of the public. The essential distinction between a public and a private endowment is that in the former the beneficial interest is vested in an uncertain and a fluctuating body of persons, either the public at large or some considerable portion of it answering a particular' description; in a private endowment the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained. The fact that the fluctuating and uncertain body of persons is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make it a private endowment. The fact that the fluctuating and uncertain body of persons is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make it a private endowment. The essence of a public endowment consists in its being , dedicated to the public; and in the absence of any document creating the endowment, long user is the material factor from which an 'inference of dedication may arise. Besides user by the public, conduct of the founder and his descendants is also relevant, and if they in fact held out the temple to be a public one a very strong presumption of dedication would arise. When property is set apart for the worship of a family god in which the public are not interested, the endowment is a private one. It therefore follows that the principles are well-settled. When property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the members who are entitled to worship at the shrine of the deity can only be the members of the family i.e. an ascertained group of individuals. But where the beneficiaries are not the members of a family or specified individuals but the public at large or a specified portion thereof, then the endowment can only be regarded as public intended to benefit the general body of worshippers. In The Bihar State Board of Religious Trust (Patna) v. Mahant M. Sri Biseshwar Das: A.I.R. 1971 S.C. 2057 dealing with the question of burden of proof the Supreme Court held: Properties of the temple being thus admittedly in the possession of the mahants ever since the time of Gaibi Ramdasji the onus of proof that the Respondent mahant held them on trust for public purposes of a religious or charitable character was clearly on the Appellant-Board who alleged that it was so. The Trial Judge was, therefore, clearly in error in holding that the Respondent-mahant night to hate produced the sanads and that on his failure to do so an adverse inference could be drawn, namely, that had they been produced they would have shown that the grants to Gaibi Ramdasji were for public purposes of a religious or charitable character See Parmanand v. Nihal Chand (1938) 65 IA 252 : A.I.R. 1938 P.O. 195. In paragraphs 14 and 15, the Court said: Evidence that the mahants used to celebrate Hindu festivals when members of the public used to attend the temple and give offerings and that the public were admitted to the temple for darshan and worship is also not indicative of the temple being one for the benefit of the public. The celebration of festivals is, according to Hindu belief, part and parcel of the puja of the deity. Such festivals are celebrated in family and other private temples also. The fact that members of the public used to come to the temple without any hindrance also does not necessarily mean that the temple is a public temple, for, members of the public to attend private temples. It is against Hindu sentiments to turn away persons who come to do worship and darshan. The mere fact, therefore, that no instance had occurred when persons from the public were asked to go away or the absence of proof that they were allowed on permission or invitation only cannot be conclusive of the temple being one in which the public have by user acquired interest. In Babu Bhagavan Din v. Cir Harswaroop A.I.R 1940 P.C. there was evidence, of members of the Hindu Public having resorted to the temple for worship and darshan without any obstruction. An annual mela used to be held for many years with public subscription on the grounds of the temple. The evidence showed that the temple and the gosbains profited from the increased resort to the temple by the public during the mela period. Yet, the Privy Council held that the general effect of the evidence was that the family had treated the temple as family property and the mere fact of the members of the public having come to the temple and having made offerings and the mela having been held which gave popularity to the temple and increased its esteem in the eyes of the public and the fact that they were never turned away, were not enough to hold the temple and the properties as a public trust. Their Lordships observed: Dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Their Lordships observed: Dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference, if made from the fact of user by the public, is hazardous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away; and, as worship generally implies offering of some kind, it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. This Court also had occasion to consider a similar question in Kunhunni Nambudiripadu v. Cochin Devaswom Board 1964 K.L.T. 1034(D.B.) Dealing with the distinction between the private temple and public temple, Velu Pillai, J. observed as follows: The evidence adduced does not point to any dedication of the temple by the Appellant's Illom for the benefit of the public; as remarked, even dedication of properties to a temple is not inconsistent with its private ownership. As for user by the worshipping public, I consider it unsafe to act upon the testimony of D.Ws. 1 to 3 alone, as they are connected with the litigations that ensued after Govinda Kaimal's death. Granting that worshippers have attended or that they used to attend the temple and were rot turned out by the Illom, no presumption can be made that such worship or user was as of right, once the temple is prayed to belong to the Illom. It is where such proof is wanting that worshipping without let or hindrance by the members of the public has been held to raise a presumption, that such worship or user was as of right. Privy Council in Mundacheri Koman v. Thachangat Puthan Veettil Achuthan Nair and Ors. A.I.R. 1934 P.C. 230 held that there is no presumption as regards temples in Malabar that they are public charitable trusts. In the light of the principles enunciated in the above decisions of the Supreme Court it will be difficult to hold that Kuniyil temple is a public temple. The temple is located in Kuniyilparamba, where Kuniyil tarwad house is also located. Temple site is not separated from the rest of Kuniyil Paramba. The temple and structures are very small in nature and are not imposing ones. The title to the property where the temple stood belonged to Kuniyil family. The temple is located in Kuniyilparamba, where Kuniyil tarwad house is also located. Temple site is not separated from the rest of Kuniyil Paramba. The temple and structures are very small in nature and are not imposing ones. The title to the property where the temple stood belonged to Kuniyil family. Kuniyil family members applied for licence from Municipality for construction of temple and the tank attached to the temple. The licences for swords kept in the temple were in the name of the family members of Kuniyil tarwad. The revenue receipts clearly indicated that Kuniyil paramba where the temple is situated belonged to Kuniyil family. Overall evidence is to the effect that the members of the Kuniyil family were administering the affairs of the temple. As against this, the Defendants' evidence would only show that the public participated in the temple festivals and also worship and they made contributions for conduct of Pujas and festival. There is no acceptable evidence to show that the participation in festivals and worshipping were as of right. This is insufficient to convert the temple into a public temple. As pointed out in Appu Pattar and Anr. v. Sri Kurumba Bhagavathi Devaswom Uttama Panampalli Kurumba Umma and Ors. Vol. XXI M.LJ. 588 where a temple was originally a private temple there must be clear and strong proof of subsequent dedication to the public, to sustain a plea that the temple subsequently became a public temple. In the instant case, the evidence adduced by the Defendants does not establish that there was subsequent dedication by the family. Forgoing discussion would show that the view taken by the lower Court that Kuniyil temple is a private temple is fully justified. We do not find any justification to interfere with the judgment and decree passed by the lower Court. In the result, the appeal fails and it is accordingly dismissed. However there will be no order as to costs.