Edarath Narayanan Nair v. Narayanan Namboodiri — 1993 DIGILAW 238 (KER)

JUDGMENT Varghese Kalliath,J. 1. This appeal relates to a question whether the temple scheduled in the plaint is a public or a private temple. The statutory authorities under the Madras Hindu Religious and Charitable Endowments Act, 1951 as ' amended (hereinafter referred to as 'the Act') found that the temple is a public temple. The appellate order of the Commissioner, Ext. A-4 and the order of the Deputy Commissioner in O. A. No. 21/75 dated 9th November 1977 were challenged in the suit and the plaintiffs prayed for cancellation of the orders, 2. The trial court, after taking evidence in the case, held that the order of the Deputy Commissioner in O. A. No. 21/75 dated 9th November 1977 and the order of the Commissioner in Appeal No. 4/77 dated 18th December 1978 are liable to be cancelled and the trial court cancelled it. This judgment is now under appeal. 3. In P. R. Sundara Aiyer's Malabar and Aliyasanthana Law, it is stated that many wealthy families own private temples of their own and in the case of Rajahs and Chieftains they are often situated within the precincts of their residence. The learned author has classified four classes of temples: (i) ancient temples founded by Parasurama, (ii) temples founded by Rajas, (iii) temples founded by village communities and (iv) temples founded by individuals. Mr. Wigram gives a slight modification in regard to class (iii) consisting of temples founded by village communities and individuals. His class (iv) consists of temples founded by devotees from alms, received. 4. The temples reputed to be founded by Parasurama who was the founder and the Sovereign of Kerala do not differ materially from the second class that comprises all temples founded by Sovereigns who ruled in different parts of Malabar (except the private temples attached to their own residences which are of the nature of family chapels) . These two clashes, may, therefore, be grouped together and are undoubtedly public institutions - see Malabar and Aliyasanthana Law by Sundra Aiyer. 5. To determine whether a temple is a private or a public temple, Sundara Aiyer, 'the learned author, says will no easy task in a given case. He further says that the general public are as a rule allowed to worship even where the temples are private institutions and most private temples also own more or less property. 6. 5. To determine whether a temple is a private or a public temple, Sundara Aiyer, 'the learned author, says will no easy task in a given case. He further says that the general public are as a rule allowed to worship even where the temples are private institutions and most private temples also own more or less property. 6. The case of the plaintiffs is that the temple in question - Chathamangalam Temple - was founded by the illoms of the plaintiffs and defendants 1 and 2. It is stated that the properties were dedicated by the said illoms in ancient times in favour of the temple and that the respective karanavans of the 12 illoms consisting of the plaintiffs and defendants 1 and 2 are the ooralans of the temple and the temple is managed by them. The ooralans selected a samudayi and the affairs of the temple are looked after by the samudayi. At the time when the suit was instituted, there was no samudayi and therefore the temple administration was carried on, on the .majority decisions of the ooralans. It is the case of the plaintiffs that the general public has not dedicated any property to the temple. According to the plaintiffs, the temple belongs to the said 12 illoms and the families of the ooralans alone have the right over the temple and temple properties. In short, the case is that it is a private temple over which the Deputy Commissioner and the Commissioner under the Act cannot have any authority. It is admitted that if the temple is a private temple, the Act has no application. 7. As early as in 1937, the Madras Hindu Endowment Board demanded contributions from the temple in question and proceedings were initiated for recovery of the contribution by selling the temple properties. Under S.84 of the Act (Madras Hindu Religious Endowments Act, 1927) O.P. No.1/37 was filed before the District Court, South Malabar against Hindu Religious and Charitable Endowment Board for a declaration that it is not a public temple and for setting aside the order of the Endowment Board. Original Petition was allowed on 18th December 1978 holding that the temple is a private trust and is not a public temple. Plaintiffs say that order has become final. The temple was always treated as a private temple. Original Petition was allowed on 18th December 1978 holding that the temple is a private trust and is not a public temple. Plaintiffs say that order has become final. The temple was always treated as a private temple. As such it will not come within the scope of the Act. Under the belief that the temple is entitled to get annuity under the provisions of the Land Reforms Act an application was filed for annuity and annuity was dented because the temple was a private one. 8. The 3rd defendant filed O. A. No. 21/75 before the Deputy Commissioner of the H. R. and C. E. Board, under S.57(a) of the Act for a declaration that it is a public temple. The Deputy Commissioner held that the temple is a public religious institution as per the order dated 9th November 1977. An appeal was filed before the Commissioner and Deputy Commissioner's order was confirmed by the Commissioner as per order dated 18th December 1978. It is contended by the plaintiffs that the above orders of the Commissioner and the Deputy Commissioner are against law and contrary to facts. The Commissioner and the Deputy Commissioner have no power to pass orders against the order in O.P. No. 1/37. It was contended that there was no sufficient reason to declare the temple as a public temple. There was no bandaram in the temple and that the local people had never treated the temple as a place of public religious worship. On these facts, plaintiffs claimed that the court should cancel the orders passed by the Commissioner and Deputy Commissioner. 9. The third defendant filed a written statement, He submitted that the suit is not maintainable under S.62 of the Act. The suit is also not maintainable under S.9 of the Code of Civil Procedure. It was contended that the suit is barred by limitation. The defences like non-jointer of parties, no schedule of the property given in the plaint are taken. 10. It is disputed that the temple was founded by 12 illoms of the plaintiffs and defendants 1 and 2 and the claim that the properties were dedicated by the illoms is not true. The defences like non-jointer of parties, no schedule of the property given in the plaint are taken. 10. It is disputed that the temple was founded by 12 illoms of the plaintiffs and defendants 1 and 2 and the claim that the properties were dedicated by the illoms is not true. The third defendant also put forward the contention that though the karanavans of the illoms were the ooralans of the temple, the members of the 12 illoms have no special right over the property and the temple was always remained as a public one and on that basis they had applied for annuity. The case of the plaintiffs that there is no bandaram in the temple was denied. It was contended that for the last 25 years the local residents were worshipping in the temple without any hindrance. It was emphasised that without taking permission from anybody they, were worshipping in the temple on their own right. In the bandaram they used to offer 'vazhipadu'. It was also contended that for the last several years marriages are also conducted in the temple. These marriages are conducted on payment of a definite amount to the temple. The local people have constituted a committee for the management of the temple. For the aforesaid reasons, it was contended that the suit is liable to be dismissed. 11. The court below raised the necessary " issues and considered the issues and ultimately decreed the suit with costs. The third defendant, appeals, pending the appeal, appellant died and additional appellants 2 to 6 were impleaded. 12. The contention that the suit is not maintainable was negatived by the court below. The Act itself empowers the aggrieved party to challenge the order of the Deputy Commissioner or the Commissioner finding that a particular temple is a public temple. The court below found correctly and there was no serious submission made on this contention before us, 13. The court below tried issues 2 to 5, viz., whether the orders challenged are liable to be set aside and the question whether the temple and its properties belonged to the illom of the plaintiffs and defendants 1 and 2 and are dedicated by the said illoms and whether the temple and its properties constitute a private trust. Further, in the tight of the facts, the court considered issue Nos. Further, in the tight of the facts, the court considered issue Nos. 4 and 5 viz., whether the temple is a private temple and whether the temple is a place of public religious worship or not. The court below considered these issues very elaborately analysing the evidence in the case and applying the law, according to us, properly. 14. Before discussing the evidence and the correctness of the findings recorded by the court below, we shall refer to certain decisions of the Supreme Court, Privy Council and this court, which we believe would give proper and appropriate guidance for considering the vital aspect whether the temple in question is a private temple or not. 15. An important decision relating to this question is AIR 1957 SC 133 (Deoki Nandan v. Murlidhar and others). This case related to a question whether a Thakurdwara of Sri Radhakrishnaji in the village of Bhadesia in the District of Sitapur is a private temple or a public one in which all the Hindus arc entitled to worship. Several ancilliary questions were considered, such as the nature of the suit under S.92 of the Code of Civil Procedure, difference and distinction between the private trust and public trust and also the juristic conception of an idol in a temple and the concept of the idol being the holder of the property of the temple and the temple. It is interesting to note that in regard to the last mentioned aspect of the matter, Venkatarama Ayyar, J. observed, thus: "Under the Hindu law, an idol is a juristic person capable of holding property and the properties endowed . for the institution vest in it. But it does not follow from this that it is to be regarded as the beneficial owner of the endowment. It is only in an ideal sense that the idol is the owner of the endowed properties and it cannot have any beneficial interest in the endowment". Referring to several decisions, His Lordship observed thus; "Even according to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as the owners only in a figurative sense (Gaunartha). The true purpose of a gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing, opportunities and facilities for those who desire to worship". 16. The true purpose of a gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing, opportunities and facilities for those who desire to worship". 16. In regard to the question how to determine the nature of a temple, whether it is private or public, the court observed: "The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof". After enunciating this test, the court said: "Thus where property is dedicated for the worship of a family idol, it is a private and not a public endowment as then person who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries arc not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers". 17. En 1934 PC 230 (Mundancheri v. Achuthan), Their Lordships of the Privy Council were considering a suit filed by certain Hindus under S.92 of the Code of Civil Procedure in regard to seven temples against, the defendant for removing him from management on the ground of various acts of mismanagement. Defendant contended that the plaint temples were founded, owned and maintained by the defendant's ancestors and that the - worship of God is a holy and meritorious act, the defendant and his ancestors had allowed those who - came to the temples to worship there not as a matter of right, but by the sufferance of the defendant's tarwad. Further, it was alleged that by an understanding between the members of the tarwad the income of certain tarwad properties was utilised for the maintenance of the devasom, but there was no lands or properties forming the endowments of the devasom. It was contended that the temples had never been public and the defendant's predecessors were never trustees and could not be charged with repudiating the trust. After considering the various aspects of the matter, defendant's contention were negatived by the High Court, which was confirmed by the Privy Council. It was contended that the temples had never been public and the defendant's predecessors were never trustees and could not be charged with repudiating the trust. After considering the various aspects of the matter, defendant's contention were negatived by the High Court, which was confirmed by the Privy Council. In considering the question of the nature of the temple, the Privy Council referred to the authoritative .book on the subject, viz., Malabar and Aliyasanthana Law by Sundara Aiyar and observed: "The learned author, who belonged to a Brahmin family long settled in Malabar was " one of the leaders of the Madras Bar and afterwards a Judge of the High Court, and his opinions are therefore entitled to great respect but unfortunately, he died before the question of the ownership of these Nair temples and their endowments had been investigated in the decision already mentioned". 18. Sundara Aiyar in his book Malabar and Aliyasanthana Law' in Chap.20 has said: - When the question whether a particular temple is public or private arises for decision the test of course would be whether the public have a right to worship in it and if the public are as a matter of fact in the habit of worshipping and have never been denied access, it may be a legitimate ground for inferring a dedication to the public. The inference would not be conclusive and its strength would depend on the circumstances of each case'. In page 264, the learned author has said that: "If the temple is public the manager or uralan is said to be subordinate to God. He is styled the God's uralan while the uralan or manager of a private temple is said to be the proprietor of it or to possess the uraima over it and the God is said to be the God of the uralan". The above passage is quoted in 1934 PC 230. It is also significant to note in 1934 PC 230 that their Lordships observed that there is a presumption that in the greater part of the Madras presidency where private temples are practically unknown, the presumption is that temples and their endowments form public charitable trusts. The above passage is quoted in 1934 PC 230. It is also significant to note in 1934 PC 230 that their Lordships observed that there is a presumption that in the greater part of the Madras presidency where private temples are practically unknown, the presumption is that temples and their endowments form public charitable trusts. While observing so, the Privy Council noted that no such presumption exists in case of temples situated in Malabar, stating that the prevailing impression in Malabar is that the Nair temples are private and that "therefore the karanavan of a once powerful tarwad is found in management of seven temples in the neighbourhood of the tarwad house the inference would appear to be that the temples were founded and endowed by his predecessors". 19. In AIR 1963 SC 1638 (Shri Govindlalji v. State of Rajasthan), the Supreme Court has given certain tests for determining whether a temple is a private temple or a public temple. The court observed that where evidence in regard to the foundation of a temple is not clearly available, the question whether a Hindu temple is public or private is determined by relying on certain other facts which are treated as relevant. Is the temple built in such an imposing manner that it may prima facie appear to be a public temple? The appearance of the temple of course cannot be a decisive factor: .as best it may be a relevant. factor. Are the members of the public entitled to an entry in the temple? Are they entitled to take part in offering service and taking Darshan in the temple? Are the members, of the public entitled to take part in the festivals and ceremonies arranged in the temple? Are their offerings accepted as a matter of right? The participation of. the members of the public in the Darshan in the temple and in the daily acts of worship or in the celebrations of festival occasions may be a very important factor to consider in. determining, the character of the temple. 20. Are their offerings accepted as a matter of right? The participation of. the members of the public in the Darshan in the temple and in the daily acts of worship or in the celebrations of festival occasions may be a very important factor to consider in. determining, the character of the temple. 20. In AIR 1971 SC 2057 (State of Bihar v. Biseshwar Das), the Supreme Court was considering a case were the provisions of Bihar Hindu Religious Trusts Act, 1 of 1951 was sought to be applied by the board which was resisted by the mahant of the properties of the temple, The mahant filed the suit and claimed is that the asthal and, its properties where his personal properties, the gifts of lands having originally been made personally to the founding mahant and thereafter to the mahants succeeding him and that therefore the properties were not religious trusts as defined by S.2(1) of the Bihar Hindu Religious Trusts Act. That sub-section defines a 'religious trust' to mean "any express or constructive trust created or existing for any purpose recognised by Hindu Law to be religious, pious or charitable but shall not include a trust created according to Sikh religion or purely for the benefit of the Sikh Community and a private endowment created for the worship of the family idol in which the public are not interested". Essentially the question was one whether the asthal in question was private or public. Several decisions were referred to in the judgment and the court ultimately held that the property in question cannot be subjected to the provisions of the Bihar Hindu Religious Trusts Act, since the asthal in question was not a public asthal within the meaning of the definition under S.2(1) of the Bihar Hindu Religious Trusts Act 1 of 1951. In this decision, the court observed that: "Dedication to public cannot be readily inferred from the mere fact that members of public are freely admitted to the temple for worship and/ or for attending festivals celebrated by mahants". It was further observed that the value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. It was further observed that the value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. It was also held that: "When burden to prove that the properties of the temple are held by the reigning mahant on trust for public purposes of a religious or charitable character is on the Board of Religious Trust, Court cannot draw an adverse inference for failure of mahant to produce certain document where under the properties had been gifted to the funding mahant". 21. A Division Bench of this Court in ILR 1989 (1) Ker. 218 (Appukutty and others v. Kuniyil Achuthan) considered the principles for determining whether a temple or endowment is a private one or one belonged to the public. In this case, the Division Bench held: "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 aright to worship" in the temple". The court relied on AIR 1980 SC 514 (Mahant Parichchan Das v. Bihar State Board of Religious Trust and others). The Supreme Court in that case ( AIR 1980 SC 514 ) said that 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 light in the user of the temple by the public. In AIR 1981 SC 798 (Rathakanta Deb and another v. T he Commissioner of Hindu Religious Endowments, Orissa). Court observed thus: "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 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....................." 22. In the same case the Supreme Court observed 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. Further it was observed that 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 the Supreme Court in a large number of cases. This principal is the essential distinction between the nature of a public or a private endowment. It follows that one of the most important tests to determine the nature of the endowment will 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. As stated earlier, the other tests also can be used, viz., whether the right to worship in the temple is exercised as of right and not as a matter of concession. 23. The case at hand is one where evidence is lacking in regard to the foundation of the temple. So, we have to consider the question on the basis of the evidence adduced and the circumstances proved 'in this case. 23. The case at hand is one where evidence is lacking in regard to the foundation of the temple. So, we have to consider the question on the basis of the evidence adduced and the circumstances proved 'in this case. In AIR 1963 SC 1638 already referred to and in other decisions, the Supreme Court has said that where there is lack of evidence in regard to the foundation of the temple the court has to rely on certain facts which have to be relied on for the resolution of the issue. 24. When the origin of the temple is not clearly proved or lost in antiquity, the inference is to be drawn from long user established by evidence See Ramaswami Jadaya Gounder v. Commissioner, Hindu Religious and Charitable Endowments 1963 (2) MLJ 280 and Sivagami Ambigai Temple v. Commissioner, H.R. and C.E. 1966 (1) MLJ 109 . In this context, we may once again refer to the Privy Council decision 1934 PC 230 wherein the Privy Council observed thus: "Had there been any sufficient reason for holding that these temples and their endowments were originally dedicated for the tarwad and so were private trusts, their Lordships would have been slow to hold that the admission of the public in later times, possibly owing to altered conditions, would affect the private character of the trusts. As it is, they are of the opinion that the learned Judges of the High Court were justified in presuming from the evidence as to public user, which is all one way, that the temples and the endowments were public religious trusts." 25. Another important aspect to be noted in the case at hand is that when the third defendant was examined as a witness, his case is that the temple in question is a public temple on account of long user by the public and he claimed long user for a period of 25 years. Certainly if a temple is proved to have originated as a public temple nothing more is necessary to be proved to show that it is a public temple but if a temple is proved to have originated as a private temple or its origin is unknown or lost in antiquity then there must be proof to show that it has become public temple by the long user by the public. In such cases the true character of the particular temple is decided on the basis of various circumstances. If we catalogue the circumstances from the decided cases, the following circumstances are important: (1) Is the temple built in such imposing manner that it may prima facie appear to be a public temple ? (2) Are the members of the public entitled to worship in that temple as of right? (3) Are the temple expenses met from the contribution made by the public? (4) Whether the sevas and utsavas conducted in the temple are those usually conducted in public temples? (5) Have the management as well as the devotees been treating the temple as a public temple? 26. Now, we turn to consider the questions we have to decide in the case at hand. At the outset, we have to say that the court below has considered all the aspects we have highlighted by referring to the decided cases even though there is no reference to decided cases in the judgment of the court below. 27. It is an admitted case that the temple in question is -controlled and managed by Ooralans and the Ooralans arc the representatives of 12 illoms who claimed ownership of the temple. Of course, the third defendant wanted to establish public control of the temple by stating that there was a kshethra karya Samithi in which he was the president. Though he has said that there was no constitution, for the Samithi, he admitted that there are minutes book for the Samithi, but it has not been produced. According to the third defendant, the samithi has collected contributions from the public three years prior to the date of examination of the third defendant before court. The third defendant further said that the Samithi is maintaining an account book regarding the expenditure and receipts. All these items of documentary evidence were available to the third defendant, if such a Samithi was in existence. But the non-production of those 'records would plainly point out that such a samithi was not in existence. What has been said by the third defendant is not a true fact. This is the approach made by the trial court. We fully agree with the trial court. There is absolutely no evidence of public control over the temple and its properties. 28. What has been said by the third defendant is not a true fact. This is the approach made by the trial court. We fully agree with the trial court. There is absolutely no evidence of public control over the temple and its properties. 28. There is no clear indication as regards the nature of the structure of the temple. Of course, it is said by the third defendant 'that it is fairly a big structure with compound walls and the principal deity of the temple is Lord Krishna and the other deities are Bhagavathy and Ganapathy. Nalambalam of the temple is spacious to accommodate large number of persons. Assuming that the temple is a substantial structure that fact itself is not decisive. The Supreme Court also had said so. 29. In this context, now we have to consider one of the most important aspects of this case. It is admitted by the third defendant that there was a prior proceedings by the H.R. & C.E. Board 'declaring that the temple is a public temple -which was challenged by the Ooralans by filing O.P. No. 1/1937. According to the plaintiffs, that O.P. was allowed holding that the temple is a private temple. This fact was admitted by the third defendant. Plaintiffs have told the court that they were not able to produce the certified copy of the judgment, since even though they applied for certified copy, they did not obtain it from the court, since the records of the case were destroyed. 30. Plaintiffs have produced Ext. A-1, a typed copy of the judgment. We are hesitant to refer to Ext. A-1. But we have to accept the fact that there was proceedings for a declaration that the temple in question is a private temple before a civil court and the civil court, after taking evidence, held that the temple in question is a private temple. We say so because this fact has been admitted by the contesting third defendant. Because of this fact the third defendant wanted to say that by long public user of the temple has made it a public temple. He has said that the public was using the temple as of right for the purpose of worship for more than 25 years. Evidence on this aspect of the matter is the oral evidence given by D.Ws. 1 to 5. He has said that the public was using the temple as of right for the purpose of worship for more than 25 years. Evidence on this aspect of the matter is the oral evidence given by D.Ws. 1 to 5. The trial court has considered the evidence of the witnesses on this aspect of the matter diligently and assiduously and found that the evidence given by the witnesses arc contradictory and inconsistent and cannot be accepted. 31. It has to be remembered that the fact that the public had entry for worship will not be sufficient for holding that such entry in the temple by the public is as of right. The ordinary Hindu sentiment is not to prohibit any worshipper from worshipping in a temple even though the temple was founded mainly for the worship of the members of the family of the founder. In this case, there is also evidence to show that when, there was an attempt to treat the temple as a public temple, the Ooralans had resisted it by taking proceedings before the Sub divisional Magistrate Court. In that proceedings, the third defendant was also a respondent counter petitioner. The third defendant has admitted that though he was not aware of the result of that proceedings, he was prohibited orally by the court from entering into the temple. The entire oral evidence given by the third defendant would only indicate if that evidence is believed that some people used to worship in the temple. The circumstances and the. materials placed before the court Would only lead the court at best to infer that the people were allowed to worship in the temple in. question, but that worship by the people has not got the character of as of right. 32. The trial court has discussed the evidence regarding offering and 'vazhipadu' by the public. The trial court has discussed the matter thoroughly. The third defendant was not able to produce any receipt in regard to the acceptance of the 'vazhipadu' by the Ooralans or by the Samithi wherein he was the president. Further, though the third defendant wanted to tell the court that" the festivals were conducted with the public contributions, no acceptable evidence was tendered before the court. It was also attempted by the third defendant to prove that marriages of the members of the public were also conducted in the temple. Further, though the third defendant wanted to tell the court that" the festivals were conducted with the public contributions, no acceptable evidence was tendered before the court. It was also attempted by the third defendant to prove that marriages of the members of the public were also conducted in the temple. There was absolutely no acceptable evidence on this aspect of the matter. 33. The court below, after considering all the facts and circumstances, of the case, held that the temple in question is a private temple. We do not find any reason to disagree with the findings recorded by the court below. Before us the only question that was argued by the appellant is as to the nature of the temple. The technical contentions were not pressed before us. In the result, We see no merit in the appeal and the appeal is only to be dismissed. We do so.