Judgment :- Common Judgment: (N. Kannadasan, J.) The appellant in LPAs 11 and 12 of 2002 is the first respondent in A.S.Nos.960 of 1987 and 654 of 1988 and plaintiff in O.S.Nos.36 and 37 of 1985. The respondents herein are the defendants in the suit. For the purpose of reference, the parties as arrayed in LPAs 11 and 12 of 2002, are referred to in the same manner in all the appeals. 2. The appellant has filed two applications viz., O.A.Nos.7 and 10 of 1983 before the Deputy Commissioner, Tirunelveli under Sections 63 (a) and 63 (b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as the 'Act') to declare him as the hereditary trustee of Chokkanathan Kalakutty Mutt and Vaduganatha Pillayar Temple in Parakkai village, Agasteeswaram Taluk, Kanyakumari District, and its properties constitute a private Trust belonging to a Nanjilnadu Vellala Tarwad and the said institution is a private religious institution. The said applications were dismissed on 25.2.1984, against which the appellant preferred appeals in A.P.Nos.52 and 53 of 1984 before the Commissioner, HR&CE Department, Madras which were also dismissed. Aggrieved against the said orders, the appellant filed statutory suits as contemplated under Section 70 of the Act in O.S.Nos.36 and 37 of 1985 on the file of the Subordinate Judge, Nagercoil. 3. The trial Court decreed the suits and rendered a finding that the temple falls outside the purview of the provisions of the Act and also held that the temple is a private temple and the same is under the management of the plaintiff/appellant, but however, not rendered any finding as between the inter se dispute between the appellant/plaintiff and the second respondent/second defendant, as the said issue need not be gone into. 4. Aggrieved against the said judgment and decree of the trial Court, the first respondent/first defendant preferred the appeals in A.S.Nos.960 of 1987 and 654 of 1988 before this Court and the learned Judge, by judgment dated 11.6.2001, allowed both the appeals by setting aside the judgment and decree of the Court below, against which the appellant preferred appeals in LPAs 11 and 12 of 2002 and the second respondent preferred appeals in LPAs 78 and 79 of 2002. 5. 5. The appellant/plaintiff filed the suits contending that his ancestors established the private temple for the worship of members of his tarward and their spiritual welfare, and endeavoured some properties to meet the expenditures for poojas in the temple and to do certain charities. The temple as well asthe Mutt were established and certain rights were conferred upon one Sankaranarayana Pillai, the ancestor of the appellant by way of a document of the year 1910. Though the place of temple initially fell within the jurisdiction of the erstwhile Travancore-Cochin state, after the merger of the said area to the State of Tamil Nadu, the authorities made an attempt to apply the provisions of the Act. On 26.8.1967 one Narayana Pillai, S/o.Sankaranarayana Pillai was appointed as a trustee by the then Assistant Commissioner and later on the Village Administrative Officer was appointed as a fit person and subsequently, the appellant/plaintiff was appointed as a trustee on 6.4.1981. It was also contended that even though the Government appointed the trustees, that will not alter the character of the temple which is a private temple and accordingly sought the relief in the suits. 6. The suits were resisted by the first defendant/first respondent by contending that the plaintiff has subjected himself to the jurisdiction of the Act and inasmuch as he has acted as a trustee in pursuance of the appointment made by the Department, he cannot turn around and take a different plea and as such, he is not entitled for the relief. The second defendant/second respondent herein also disputed the right of the Department to interfere with the management of the affairs of the temple, but however, would contend that he has better right than that of the plaintiff in his capacity as a son of Sankaranarayana Pillai. 7. The trial Court decreed the suits as stated supra which are set aside by the learned Judge of this Court. The learned Judge, while setting aside the judgment and decree, has held that the plaintiff failed to discharge his initial burden of establishing that the temple is a private temple and inasmuch as he has subjected to the jurisdiction of the provisions of the Act, it is not correct to hold that the temple is a private temple. 8. The learned Judge, while setting aside the judgment and decree, has held that the plaintiff failed to discharge his initial burden of establishing that the temple is a private temple and inasmuch as he has subjected to the jurisdiction of the provisions of the Act, it is not correct to hold that the temple is a private temple. 8. The learned senior counsel appearing for the appellant would contend that the learned Judge has over looked the fact that there is no determination at all with regard to the character of the temple by the Department and as such, the appointment of the plaintiff as a trustee cannot be construed as if the plaintiff has subjected himself to the provisions of the Act and the temple could be treated as a public temple. The learned senior counsel would further contend that the ingredients of a public temple is not available in the evidence on record and the plaintiff in fact discharged his initial burden to establish that the temple is a private temple, and hence it is for the first defendant to adduce evidence rebutting the evidence adduced by the plaintiff. It is also contended that the evidence available on record would amply prove that the temple in question is a private temple and the plaintiff is entitled to administer the same. 9. Learned counsel appearing for the first respondent would contend that in terms of the proviso viz., Section 6 (20) of the Act, the temple has to be treated as a public temple and as per the decided cases, the presumption that all the temples in Tamil Nadu are public temples and the very fact that the plaintiff himself acted as a trustee in pursuance of the order passed by the Department would suggest that he has subjected himself to the jurisdiction of the provisions of the Act and as such, he cannot take a different plea and seek the relief. 10. Heard the learned counsel for the second respondent/appellant in LPAs 78 and 79 of 2002 on all these points. 11. We have considered the rival contentions of the learned counsel appearing on either side. 12. From the material evidence available on record, it is seen that the temple and the Mutt were established long before and certain rights were conferred upon one Sankaranarayana Pillai as early as in the year 1910 as evidenced by Ex.A.3. 11. We have considered the rival contentions of the learned counsel appearing on either side. 12. From the material evidence available on record, it is seen that the temple and the Mutt were established long before and certain rights were conferred upon one Sankaranarayana Pillai as early as in the year 1910 as evidenced by Ex.A.3. It is not disputed that the place of temple originally fell within the jurisdiction of the erstwhile Travancore-Cochin State and later on merged with the State of Tamil Nadu. It is only after the merger of the said area to the State of Tamil Nadu, the authorities under the Act appears to have exercised jurisdiction upon the temple by appointing trustees. It is primarily contended by way of pleadings that the temple could be treated as a public temple inasmuch as the persons in the management of the temple have allowed the Department for appointment of trustees. Apart from the said pleadings, the first defendant has not adduced any other material to show the character of the temple as a public temple. It is also equally important to note that the appointment of trustees was not made after the determination of the character of the temple as a public temple. On the other hand, the plaintiff has adduced evidence to show that the temple was established long before and necessary document was executed in the year 1910 conferring the rights upon one Sankaranarayana Pillai and as per the recitals of the said document, Sankaranarayana Pillai was entitled to administer the properties. The plaintiff in his evidence as PW.1 has deposed that the Mutt and the temple are in his possession continuously from 6.4.1981 and a house is existing behind the temple and both the house and the temple are in a same campus and the public cannot worship the temple as a matter of right. D.W.1 has admitted in his cross-examination about the factum of location of the house behind the temple and he has also admitted that in the temple there is no hundial, Manimandapam. DW.1 in his chief-examination has merely referred to about the appointment of trustees to the temple and would state that the temple is a public temple and the public at large are offering worship. The entire evidence on behalf of the DW.1 do not suggest about the determination of the character of the temple. 13. DW.1 in his chief-examination has merely referred to about the appointment of trustees to the temple and would state that the temple is a public temple and the public at large are offering worship. The entire evidence on behalf of the DW.1 do not suggest about the determination of the character of the temple. 13. In the light of the above pleadings and materials available on record, it is seen that much credence is given to decide the character of the temple by considering the fact that the Department appointed the trustees. In this connection it is useful to refer to the judgment rendered by a Division Bench of this Court in Piramanayagam Pillai vs. Ambalavana Pandara Sannadhi (1915-2-LW 371), wherein it is held that it is not correct to hold a temple as a public temple merely because the Government by a wrongful assumption of power appointed the trustees to the temple. Similarly, the Apex Court in its decision rendered in Hindu Religious Endowments and Others vs. B.Samitra and Others ( AIR 1976 SC 1059 ) has held that the appointment of a non-hereditary trustee of religious institution without prior determination as to whether the institution is a public one or not, is invalid. Hence, merely because the Government appointed the trustees cannot be the sole basis to determine the character of the temple. 14. It is significant to note that no member of the public has come forward to give evidence that the public are worshipping in the temple as a matter of right. It is also a fact that there is no public contribution or offering for the maintenance of the temple or the poojas therein and there is no hundial in the temple and the properties of the ancestor of the temple have been dedicated to the temple. In a similar circumstances, The Hon'ble Mr. Justice M.SRINIVASAN (as he then was) in a decision rendered in S.Krishnan vs. The Commissioner, HR&CE Admn. Department, Madras-34 and another (1989 2 MLJ 87) by following the principles laid down by the Apex Court, held that the temple therein cannot be treated as a public temple. In a similar circumstances, The Hon'ble Mr. Justice M.SRINIVASAN (as he then was) in a decision rendered in S.Krishnan vs. The Commissioner, HR&CE Admn. Department, Madras-34 and another (1989 2 MLJ 87) by following the principles laid down by the Apex Court, held that the temple therein cannot be treated as a public temple. In the said decision, the learned Judge considered the fact that the properties are dedicated for the purpose of maintenance of the temple by the founder and no contribution or offering sought for from any member of the public and there is no hundial in the temple and no member of the public has come forward to give evidence that the members of the public are worshipping as of right. Since the facts of the case on hand is also identical, the principles rendered in the abovementioned decision is also applicable to the facts of the case. 15. In order to determine the nature of religious institution as a place of public religious worship, a Division Bench of this Court in a decision in R.Mayaperumal and another vs. Azhagappan Nadar (died) and others ( 1984 (2) MLJ 422 ) has approved the views of the Hon'ble Mr. Justice Ramaprasada Rao in an another case which reads as follows:- "(a) The existence of Moolasthanam, Mahamandapam, idols of chief and other deities, utsavamurthis, daily poojas, special poojas and procession during festive occasions, worship by the local public belonging to different communities without any let or hindrance, are all factors which give the impression that the temple is a public one. (b) If the temple is being used as a place of public religious worship, if there is no dedication of the temple to and for the benefit of the Hindu community or any section thereof, if it is not used generally by the Hindu community as of right as a place of public religious worship, if there is no hundial and no collections are made from the public for the performance of any festival connected with the temple or for its maintenance and no member of the public has come forward to say that he has contributed any amount for the maintenance or any of the related poojas to the deity therein, the temple will not be a public temple, but a private one. (c) The origin of the temple, the manner in which its affairs are managed, the nature and extent of the gifts received by it, rights exercised by devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple, are factors that go to establish whether a temple is a public or a private one and in each case both the documentary and oral evidence have to be considered as is whole while keeping in view the above principles. (d) An inference whether a religious institution is a public one or a private one can be drawn from the usage and customs of the institution or from the mode in which the properties have been dealt with as also the other established circumstances. (e) The essential sine qua non to make a temple a public temple appears to be that the public should claim the right to worship the deity installed therein as of right. If the origin of the temple is very well-known as a private temple, then the clearest possible evidence is necessary for converting that temple into a public temple. As worshippers, are naturally welcome and as the sentiment of a Hindu would not prevent another from making offerings or to turn away a worshipper and as there is an innate desire in persons in charge of private temples not to discourage popularity of the deity, the mere circumstance that the people in the locality were visiting the temple and were worshipping the deity may not take away the character of the temple from a private temple to a public temple. In all such cases worship of outsiders is referable to the leave and licence granted by the owner and cannot be indicative of any dedication to the public. (f) A temple will not be a public temple within the scope of the Act because in the absence of an express dedication for the benefit of the public, user by the public as of right must be established and such user as of right is far different from the trustees being willing to welcome the public to come and worship in the temple. If a temple had no garbagraham, mahamandapam and if there was no dwajasthambam, no prakaram, no hundi and if no kanikai or any collection was made by the temple and if the utsava idols were not taken in procession in the street then the temple is not a public one. (g) If the public do not worship the idol as of right and simply because some poojas are performed in a temple and certain members of the public are allowed to participate in the pooja, the temple cannot be said to be a public temple". 16. Similarly, a Division Bench of this Court in its decision in The Commissioner, H.R.&C.E., (Admn.) Department, Madras vs. Sri Andarvillai Mutharamman Temple, Checkala Street, Eraniel, 2. S.Kunchu Pillai (Secretary of the Eraliel Chekkala Samudayam) Eraniel, etc. (1998-2-LW 819) has observed that the presence of 'Gopuram' or 'Prakaram', 'Hundial' or 'Moorthis' is necessary to reach the conclusion, whether the particular temple is a public temple or a private temple. Similar view is expressed by another Division Bench of this Court in its decision in The Commissioner, Hindu Religious and Charitable Endowments Board, Nungambakkam, Madras-34 and another vs. T.S.Palanichamy and seven others ( 2003 (1) CTC 65 ). 17. In the light of the principles laid down in the above mentioned decisions, we are of the opinion that by no stretch of imagination, the temple in question can be construed as a public temple within the meaning of the Act. 18. The first respondent has further contended that there is an initial presumption to the effect that all temples in Tamil Nadu should be treated as public temples and in this connection, he has placed reliance upon a decision of the Apex Court in T.V.Mahalinga Iyer vs. State of Madras ( AIR 1980 SC 2036 ). There cannot be any dispute with regard to the contention of the learned counsel for the first respondent that there should be initial presumption that all temples in Tamil Nadu should be treated as public temples, has to be accepted. In the present case, the temples as well as Mutt in question were established long prior to 1910 and it originally form part of the then Travancore-Cochin State. In the present case, the temples as well as Mutt in question were established long prior to 1910 and it originally form part of the then Travancore-Cochin State. It is only subsequent to 1956 or so, the said area in question was annexed to the State of Tamil Nadu and as such, the initial presumption with regard to the temples in Tamil Nadu should be treated as a public temple, is not applicable to the present temple. Further, the Apex Court, in the very same decision, has taken note of the fact that the temple itself is situate on Government Property; that the processions with the deity are taken out and the offerings are made; and the structure especially of Gopuram and Mandapam also indicates the public nature of the temple; and all these facts were considered by the High Court while a decision was arrived at that the said temple was a public temple and accordingly, the Apex Court affirmed the judgment of the High Court. Hence the facts of the said case is not applicable to the facts of the present case. 19. That apart, this Court in its decision in Chidamabreswara Temple vs. Commissioner, H.R.&C.E. (AIR 1966 Madras 99) has recognised the existence of private temples in Travancore and further observed that usual presumption viz., the temples in South India has to be treated as public, cannot be invoked in respect of temples at Travancore or otherwise at Kerala. The above view is approved by a Division Bench of this Court in Mayaperumal's case cited supra. 20. In the light of the reasons stated above, we are of the opinion that the judgment and decree in A.S.Nos.960 of 1987 and 654 of 1988 are liable to be set aside and the judgment and decree in O.S.Nos.36 and 37 of 1985 on the file of the Sub Court, Nagercoil are confirmed. Accordingly, LPAs 11 and 12 of 2002 are allowed. In the light of the above discussions, LPAs 78 and 79 of 2002 are also allowed to the extent indicated above. No costs.