Sree Kandakarna Kshethra v. Karunakara Thandar — 1994 DIGILAW 109 (KER)

Judgment :- Appellants in A.S.97 of 1993 are the plaintiffs in O.S.65 of 1985 of the Sub Court, Cherthala. Appellants in A.S.155 of 1994 are defendants 3 and 4 in O.S.15 of 1986 of the same Court, These two suits along with O.S.16 of 1986 were tried together. The Sub Judge dismissed O.S.65 of 1985 and O.S.16 of 1986. O.S.15 of 1986 was decreed and Ext. A-35 document executed by the defendants was declared void and not binding on members of Vattakeril family. Defendants in O.S.15 of 1986 who are not members of Vattakeril family are injuncted by a permanent injunction from interfering with the affairs of the temple. 2. Plaintiffs in O.S.65 of 1985 filed the suit for framing a scheme for the administration of the temple on the allegation that it is a public endowment. It is also alleged that defendants are not properly carrying on the administration of the temple, that they are utilising its income for their personal needs and that if they are allowed to continue to do so it would be detrimental to the larger interests of the worshipers of the temple, the beneficiaries of the trust. Plaintiffs assert that Sree Kandakarna Temple is a public trust and so to protect its interests and for proper administration of the same a scheme has to be framed. Defendants contended that as per Ext. A1 partition deed of their family in 1107 ME 16 cents of land temple are kept in common for the exclusive benefit of the members and so it cannot be claimed by anyone under the guise of public trust. 3. The question that arises for consideration is whether the plaintiffs are entitled -to institute the suit under S.92 of the C.P.C. Plaintiffs have admitted that the property belonged to Vattakeril family. Specific mention of Ext. A-1 partition deed is made in para.2 of the plaint. It is the admitted case on the side of the plaintiffs that the property having an extent of 16 cents and temple are kept in common for the benefit of all the members of the family. But their contention is that it has become a public trust during course of time. 4. From the recitals in Ext. It is the admitted case on the side of the plaintiffs that the property having an extent of 16 cents and temple are kept in common for the benefit of all the members of the family. But their contention is that it has become a public trust during course of time. 4. From the recitals in Ext. A-1 it can be seen that in the partition in the Vattakeril family Sakhas 1 to 3 referred to as Vattakeril Sakha and Sakhas 4 to 7 styled as Ponnankattu Sakha were given rights to administer the temple in 16 cents of land set apart in common to all the members. Sakhas 1 to 3 are denoted as Group I and Sakhas 4 to 7 as Group II. Recitals in Ext. A-1 disclose that Sree Kandakarna Temple and premises belong to all the members of the Vattakeril family and no member has any special right over it. It is also provided in Ext. A-1 that Groups I and II have to carry on the affairs of the temple in alternative years using its income. Family members of Group I are entitled to reside in the dwelling house in the property. 5. Though the plaintiffs admit Ext A1, their contention is that apart from the family members Hindus of the locality also used to worship in the temple and they have contributed amounts to meet its expenses and also for its renovation. PWs.1 to 4 were examined to prove extensive public participation in the conduct of festivals in the temple. 6. According to the plaintiffs, a committee was constituted for the administration of the temple in 1983 and for a while the concerned Sakhas carried on the affairs of the temple. They project Ext. A35 agreement executed between some third parties and some members of Group I of the family for providing provisions for the administration of the temple, O.S.15 of 1986 was filed for a declaration that Ext.A35 is void. That suit was decreed. 7. Learned counsel for the appellants submitted that in view of the overwhelming evidence in the case regarding public participation the only conclusion possible is that though at the inception it was a private temple it has at present become a public one and hence for safeguarding its interests the trial Court ought to have decreed O.S.65 of 1985. 7. Learned counsel for the appellants submitted that in view of the overwhelming evidence in the case regarding public participation the only conclusion possible is that though at the inception it was a private temple it has at present become a public one and hence for safeguarding its interests the trial Court ought to have decreed O.S.65 of 1985. It is contended by the plaintiffs that the Hindus of the locality used to worship in the temple for the past so many years and so it has to be treated as a public temple. According to the plaintiffs, the beneficiaries are Hindus of the locality and so defence contention that the temple and its assets belonged to them alone can no longer be accepted. Defendants contended that merely because Hindus of the locality used to worship in the temple and used to make offerings the private character of the property is not lost. 8. In view of the rival contentions, the question that arises for consideration is whether merely because of the Hindus of the locality used to worship in the temple its initial character has undergone any change. Itis common case that only Vattakeril family members were given as per Ext. A-1 rights in the property. As per Ext. A-1, temple and its assets belonged to all the members of the family. No member is given any special right over it. Merely because Hindus of the locality used to worship in the temple or that they have given offerings or that they have taken keen interest in conducting festivals connected with the temple, the rights of the family members cannot be deprived. The finding of the trial Court is that the family members was in effective control of the temple and its affairs till 1980, that thereafter a trust was created with outsiders, that it functioned till 1983 and that thereafter family people were conducting its affairs. The evidence in the case has been neatly considered by the learned Sub Judge and held that the temple belongs to Vattakeril family and that the same was administered under Ex t. A-1 for a long while and then in between the family members of either group some arrangements were made in 1968 for the administration of the temple and later in 1980 some members of the public were also allowed to manage the affairs of the temple. Evidence also shows that in 1983 a committee consisting of some members of the public came to an end and thereafter pursuant to Ext. A-1 provisions respective Sakhas have asserted their right over the temple, Ext. A-6 belies the contention that there was trust from 1968 onwards constituting members of the public also. Ext. A-35 shows that the family members control the management of the temple. On going through the entire evidence, it is not possible to hold that public as of right administered the affairs of the temple. The evidence only discloses that for some period non-family members were also allowed to participate in the functioning of the temple. 9. Merely because Hindus of the locality were allowed to worship in the temple jt cannot be taken as a ground to treat the temple as a public endowment. Ext. A-1 does not refer to any endowment. What has been specifically stated in Ext. A-1 is that the temple and premises would remain in common to the benefit of the members of the family. As Ext. A-1 discloses that there was no dedication of the temple to the public, it is not possible to infer that merely because the local Hindus were allowed to worship in the temple or that their offerings were accepted the private character is transformed into that of public character. As the evidence in the case would show that the family members have treated the temple only as their family property and as Ext. A1 is indicative of that fact, offerings to the temple by the public or worship by them or their participation in the festivals connected with the temple cannot change its character into a public one. Itis useful to refer to Bhagwan Din v. Har Saroop ( A.I.R 1940 P.C. 7) where the Privy Council held: "Where a grant of a temple is made to an individual or family and the family has treated the temple as family property, dividing the various forms of profit whether offerings or rents, it is not enough to deprive the family of their private property to show that Hindus willing to worship have never been turned away or even that the deity has acquired considerable popularity among Hindus of the locality or among persons resorting to the annual mela. Facts and circumstances, 'in order to be accepted as sufficient proof of dedication of a temple as a public temple, must be considered in their historical setting in such a case and 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 offerings of some kind it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity." Similar view has been taken by the Supreme Court in State of Bihar v. Biseshwar Das (A.I.R 1971 SC 2057). The Supreme Court held 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 is true that there is evidence of active public participation in the affairs of the temple including raising of money through public contributions which enabled renovation of the temple. But so long as there is no evidence of public involvement as of right dedication of the temple to the public cannot be inferred. There is no evidence when the temple and property set apart to the benefit of all family members have become a public trust. It was not the intention at the time of Ext. A-1 that the beneficiaries are not to be members of the family but the general body of worshippers. This is a case where the origin of the endowment can certainly be ascertained as from Ext. Al. Not only that, Ext. A1 does not provide any stipulation for offerings or contributions to be made by members of the public to the temple. Voluntary offer of money to a private temple by the members of the public including contributions for its renovation can only at best show their devotion and faith. So long as their entry into the temple is not as of right, character of the private endowment cannot blossom into a public one. Besides, there is also no evidence of the members of the family agreeing to the formation of a public trust. 10. So long as their entry into the temple is not as of right, character of the private endowment cannot blossom into a public one. Besides, there is also no evidence of the members of the family agreeing to the formation of a public trust. 10. Plaintiffs could not substantiate their contention that during the course of time the temple has become dedicated to the public. For a public endowment there must be evidence of dedication to the public. As Ext. A-1 clearly shows that 16 cents and temple are kept in common for the benefit of the members of the family, undoubtedly it is a private endowment. In Pratapsinhji v. Deputy Charity Commissioner, Gujarat ( A.I.R 1987 SC 2064), the Supreme Court held that when the 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. The Supreme Court further held that where the beneficiaries are not 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 view of the 1 specific recitals in Ext A1 that the temple and the appurtenant site of 16 cents and the dwelling house in it are to be enjoyed by the members of the family equally and that the residents of the dwelling house at the time of Ext. A1 could continue their residents no inference of dedication to the public is possible. 11. the learned sub judge was justified in holding that the temple is aprivate one belonging to the members of the Vattakeril family and it remained as such for a very long time and the evidence on the side of the plaintiffs is not sufficient to hold that the private nature of the temple has changed by conduct of parties and that it became a public temple. The Sub Judge was also justified in holding that S.92C.P.C. cannot be invoked by the plaintiffs in O.S.65 of 1985 for framing a scheme in respect of the temple. 12. In O.S.15 of 1986 Ext. The Sub Judge was also justified in holding that S.92C.P.C. cannot be invoked by the plaintiffs in O.S.65 of 1985 for framing a scheme in respect of the temple. 12. In O.S.15 of 1986 Ext. A-35 agreement was found not valid as its executants alone were not competent to execute the same in respect of the temple which belongs to the members of Vattakeril family in common. The learned Sub Judge has rightly declared Ext. A-35 void and not binding on other members of the Vattakeril family. O.S.15 of 1986 was rightly decreed by the trial court. 13. As per the recitals in Ext. A1 group I was to administer the temple in the year 1108 M.E. The provision contained in Ext. A-1 is to the effect that Group I and Group II would administer the affairs of the temple in alternative years. Thus, it can be seen that Group II has the right to administer the temple affairs in the current year (1169M.E.). I find no reason to allow the appeals. Both the appeals are dismissed. No costs.