Judgment :- This appeal is directed as against the Judgment and decree dated 10.08.1990 passed by the learned Subordinate Judge, Ramanathapuram at Madurai, in O.S.No.24 of 1989, which was filed by the plaintiffs as against the defendants, for setting aside the order passed by the defendants treating the Sri Pamban Kumaragurudass Temple Trust as a public Trust within the purview of the Hindu Religious and Charitable Endowments, Act 1959 (in short the Act) 2.The facts of the plaintiffs case lie within the narrow campus as that could be understood and assimilated, inferred and known from the plaint which would run thus:- The trust deed dated 17.03.1970, registered on 18.03.1970, was executed by one Balasubramaniam, the father of the plaintiffs 2 to 4, dedicating the property described therein, for constructing a temple and a Mandapam for Srimath Pamban Kumaragurudass Swamigal and for maintenance of a flower and coconut garden for the use of the said temple. The founder of the Trust transferred and assigned the said property in favour of Mahathejomandalam at Thiruvanmiyur, Madras. The founder of the Trust named the Trust as Sri Pamban Kumaraguruparadass Temple Trust and it shall be managed by a Board of three trustees, as follows:- (a) The founder or any one of his descendants shall be the Hereditary Trustee for life successively. (b) The Secretary for the time being of the Mahathojamandalam which was founded by Srimath Bamban Kumaragurudas Swamigal himself shall be one of the trustees. (c) Sri T.Alagappan residing at Mandapam shall be a trustee of the institution for life and after his life time his son shall be trustee in the place. After the life time of his son the other two trustees shall coopt. any one of their choice in his place; 3. Accordingly, the first plaintiff herein, the founder of the Trust namely, Balasubramaniam and the Secretary of Mahathejomandalam were trustees of the Trust. They have powers to raise subscription and donations for the trust from the public for constructing the temple and Mandapam for Swamiji in the land and for installing idols for Srimath Pamban Kumaragurudass Swamigal, Lord Muruga, Lord Vinayagar and other deities, thereon. After due consecration, they made arrangement for performance of Nithya Pooja as well as periodical festivals for proper maintenance. In the year 1975 itself the temple was consecrated. 4. After due consecration, they made arrangement for performance of Nithya Pooja as well as periodical festivals for proper maintenance. In the year 1975 itself the temple was consecrated. 4. According to the Trust, Mahathejomandalam is the custodian of the trust subject to the Management of the Trust by the Board of trustees. The Secretary of Mahathejomandalam does not have a hand in the Management. The trust is a private trust and it does not contemplate as defined under the H.R.&C.E. Act. The temple was dedicated only to Srimath Pamban Kumaragurudass Swamigal and not to any other Hindu Gods. The temple is not a place for public worship. 5. A petition under Section 63(a) of H.R.&C.E. Act was filed by the founder of the Trust, the father of the plaintiffs 2 to 4 and the first plaintiff along with the Secretary of Mahathejomandalam before the Deputy Commissioner of H.R.&C.E., Madrai, the second defendant. The Deputy Commissioner, H.R.&C.E., Madurai, did not agree for treating the Trust as a private one, but declared it as a public one. As against which, the plaintiffs filed an appeal before the Commissioner, H.R.&C.E., Madras, the first defendant herein, who confirmed the order of the second defendant. Hence, the statutory suit. 6. Per contra, impugning and challenging, denying and gainsaying the allegations/averments in the plaint, the first defendant filed the written statement, with the averments, which run thus; Even as per the averments in the plaint, the Secretary of Mahathejomandalam at Thiruvanmuyur, Madras, is the custodian of the Trust. But he was not a party to the suit and that the suit was bad for non-joinder of necessary party. The said temple is a public temple, which was built from out of the funds collected from the public. From the year 1978, the temple is under the control of the H.R.&C.E. Department. Contribution due to the H.R.&C.E. Department was levied on the suit temple. But from Fasli year 1390 onwards, the contributions due to the H.R.&C.E., Department were not paid and the arrears are yet to be collected. The Vigrahams of Lord Murugan (Mayuranathan), Lord Vinayaggar and other deities were worshipped by the Hindu Public in general and they also worshipped Srimath Pamban Kumaragurudass Swamigal. The public are worshipping in the temple without any hindrance as of right. The Vigrahams of Lord Murugan (Mayuranathan), Lord Vinayaggar and other deities were worshipped by the Hindu Public in general and they also worshipped Srimath Pamban Kumaragurudass Swamigal. The public are worshipping in the temple without any hindrance as of right. There is a paid Archakar in the temple, Nithiya Pooja (Daily 3 Kalams Poojas) are performed and periodical festivals are conducted. The Vibuthi and Prasadams are distributed to the devotees. Public are offering Kanikkais to Archakar and they also contributed to the temple. At the time of Panguni Uthiram, a Kodimaram (Flag mast) will be installed in the presence of large gathering of Pilgrims on every Karthigai Day. The public used to offer Melam on Karthigai Day, every month. Poor feeding is also done on those days. These facts were admitted by the first plaintiff and Balasubramaniam, during enquiry, before the Enquiry Officer. The institution in question is a public religious institution within the meaning of Sections 6(18) and 6(20)of the said Act. 7. Justifying and fortifying, buttressing and reaffirming the stand of the defendants, they prayed for the dismissal of the suit. 8. Based on the above pleadings, the trial Court famed as many as nine issues. During trial, the fourth plaintiff was examined as PW1 along with PW2 and PW3 and Exs.A1 to A21 were marked on the Plaintiffs side. On the defendants side, their official D.W.1 was examined and Exs.B1 & B2 were marked. The trial Court ultimately decreed the suit with costs. 9. Being aggrieved by the said Judgment and Decree of the trial Court, the defendants have filed this appeal on the following grounds among others; (i) the trial Court failed to consider the fact that the said institution is a public religious institution and the Mandapams were constructed only after collecting donations from the public. (ii) The suit is bad for non-joinder of the Secretary of the Mahathejomandalam Saba, Thiruvanmyur, Madras. (iii) The Court below ought to have held that the temple is a public temple. (iv) The trial Court failed to note that the Vigrahams of Lord Murugan (Mayuranathan), Lord Vinayaggar and other deities including Srimath Pamban Kumaragurudass Swamigal are worshipped by the Hindu public in general in the said temple. 10. Accordingly, the appellants prayed for setting aside the Judgment and decree of the Trial Court. 11. (iv) The trial Court failed to note that the Vigrahams of Lord Murugan (Mayuranathan), Lord Vinayaggar and other deities including Srimath Pamban Kumaragurudass Swamigal are worshipped by the Hindu public in general in the said temple. 10. Accordingly, the appellants prayed for setting aside the Judgment and decree of the Trial Court. 11. The Points for Consideration are: i. Whether Sri Pamban Kumaraguruparadass Temple Trust, Pirappan Valasai, Ramnad Taluk, Ramand District is the religious institution or not, as it could not under the control of Hindu Religious and Charitable Endowments Act? ii. Whether the orders passed by the defendants are liable to be set aside? iii. Whether there is any infirmity in the judgment and Decree of the trial Court? 12. The parties are referred to herein according to the litigative status before the trial Court. Point Nos.1 & 2. 13. Succinctly and precisely, tersely and briefly the case of the plaintiffs could be portrayed to the effect that the trust as contemplated in Ex.A4, dated 17.03.1970, executed by Balasubramaniam is a private trust, dedicated purely for greatness of Srimath Pamban Kumaragurudass Swamigal. The public are having no right of worship and that it is not covered by the H.R.&C.E., Act. 14. The gist and Kernel, the pith and marrow, the case of the defendants is that the temple is a public one, which was constructed from the contribution and donations made by the public; daily in general, the Hindu Community people as the devotees offer their worship without any hindrance by way of right and that Balasubramaniam, the founder of the trust himself in his statement admitted all those facts. At this juncture, it is a paramount impossible to scrutinize Ex.A4, the trust deed, by which Balasubramaniam created the Trust. Ex. A4 is the chief foundation of the Trust. In this case, as in so many other similar matters, the test to be applied is found set out in the decision reported in (2003) 1 MLJ 414 (The Commissioner, and the Assistant Commissioner, H.R.&C.E., Board) Vs. T.S.Palanichamy and others). An excerpt from the said judgment would run thus: "26.In the case of Radhakanta Deb Vs. In this case, as in so many other similar matters, the test to be applied is found set out in the decision reported in (2003) 1 MLJ 414 (The Commissioner, and the Assistant Commissioner, H.R.&C.E., Board) Vs. T.S.Palanichamy and others). An excerpt from the said judgment would run thus: "26.In the case of Radhakanta Deb Vs. The Commissioner of Hindu Religious Endowments, Orissa, MANU/SC/0039/1981, AIR1981 SC 798, 1981 (1) SCALE304, (1981) 2 SCC 226 , (1981) 2 SCR 826 , 1981 (13) UJ 671 (SC), a case similar to the one before us, the Court held that the cardinal point to be decided is whether it was the intention of the founder that specified individuals or to have the right of worship at the shrine, or the general public or any specified portion thereof". Thereafter, the Court observed that the mere fact that members of the public are allowed to worship by itself would not make an endowment a public unless it is proved that the members of the public had a right to worship in the temple. At paragraph fourteen of the judgment, the court formulated four tests as providing sufficient guidelines to determine on the facts of each case whether an endowment is of a private or a public nature. The four tests are – (1) whether the user of the temple by members of the public is of right; (2) Whether the control and management vests either in a large body of persons or within the members of the public and the founder does not retain any control over the management; (3) Whether the dedication of the properties is made by the founder who retain the control and management and whether control and management of the temple is also retained by him; and (4) where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by the members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment." 15. It is therefore, just and necessary to analyze the documents, which are not unanalyzable. There is no obscurity or anonymity relating to the origin of the trust. It is therefore, just and necessary to analyze the documents, which are not unanalyzable. There is no obscurity or anonymity relating to the origin of the trust. Ex.A4, the registered trust deed, dated 17.03.1970 executed by Balasubramaniam, who described himself as the maternal great grandson of Srimath Pamban Kumaragurudasa Swamy, dedicated his land, measuring one Acre, situate in Irappan Valasai, Vucchapuli Kurippa, Ramnad Taluk, Ramnad District for construction of the temple and Mandapam for Srimath Pamban Kumaragurudasa Swamigal and for raising a flower garden for the use of the said temple. An Excerpt from Ex.A4 is worthy of being reproduced hereunder for ready reference. "NOW THIS DEED OF TRUST WITNESSETH THAT in pursuance of the premises hereinabove recited the Founder does hereby dedicate transfer and assign the plot of land of the extent of about One Acre bearing Survey No.163/2 Part situated in Pirappan Valasai, Ramnad Taluk, Ramnad District, and described in the Schedule hereto, in trust for the construction thereon of a temple and Mandapam for Srimath Pamban Kumaragurudasa Swamigal and for the maintenance of a flower and cocoanut garden for the use of the said temple, subject to and upon the terms and conditions mentioned below and does hereby transfer and assign the said property in favour of the Mahathejomandalam, Tiruvanmiyur, Madras, represented by its Secretary T.T.Kuppuswamy Chetty in trust...." 16. Itis therefore, clear that the testator transferred and assigned the said property in favour of Mahathejomandalam, Tiruvanmiyur, Madras. However, the testator did not stop with that. He wanted the trust created by him to be called Srimath Pamban Kumaragurudasa Temple Trust, which shall be managed by a Board of three Trustees in the following manner; "(a) The Founder or any one of his descendants shall be a Hereditary trustee for life successively. (b) The Secretary for the time being of the Mahathejomandalam which was founded by Srimath Pamban Kumaragurudasa Swamigal shall be one of the trustees. (c) Sri.T.Alagappan, residing at Mandapam shall be a Trustee for life and after his life time his son shall be Trustee in his place. After the life time of his son the other two trustees shall co-opt any one of their choice in his place." 17. (c) Sri.T.Alagappan, residing at Mandapam shall be a Trustee for life and after his life time his son shall be Trustee in his place. After the life time of his son the other two trustees shall co-opt any one of their choice in his place." 17. It is therefore, obvious that the founder of the Trust intended that he should be the Trustee for life and after his life time, the hereditary trusteeship should be adhered to the Secretary of the Mahathejomandalam, he should also be one of the trustees, along with Alagappan, the first plaintiff for life and after his death, his son shall be a Trustee, and after his death, one another trustee shall be co-opted. 18. The aforementioned trustees are expected to take possession of the said plot and duly administer the same. The Clause No.4 in the trust is extracted hereunder:- "4.The Trustees shall raise subscriptions and donations from the devotees of Srimath Pamban Swamigal and from the Public for the purpose of constructing a temple and Mandapam for the Swamigal in the said land, instal idols of the Swamigal and Lord Muruga, Lord Vinayakar and other Deities therein, after due consecration and make all proper and necessary arrangements for the performance of Nitya Pujas and worship as well as periodical Pujas and Ursavams in the temple and for its proper maintenance." 19. A perusal of the Clause 4 would show that Clause 4 apparently and obviously attracts the Provisions of the H.R.&C.E., Act. The founder of the Trust himself intended that such construction of the Temple and Mandapam should be performed by collecting donations from the public and the idols of Srimath Pamban Kumaragurudass Swamigal, Lord Muruga, Lord Vinayakar and other deities shall be installed after due consecration. The founder also intended that regular Poojas should be performed for worship. 20. Clauses–5,6,7,8&9 of Ex.A4 are also still more important and they are extracted hereunder:- "5.The Founder as the first hereditary trustee shall appoint a Thiruppani Committee for the purpose for raising subscriptions for the construction of the temple and of supervising the construction. 6. The said Committee shall work in accordance with the directions of the Trustees. The founder shall be the Seyalalar of the Tiruppani Committee for life. The Board of Trustees shall be entitled to remove any member of the Committee at their discretion and to appoint another in his place. 7. 6. The said Committee shall work in accordance with the directions of the Trustees. The founder shall be the Seyalalar of the Tiruppani Committee for life. The Board of Trustees shall be entitled to remove any member of the Committee at their discretion and to appoint another in his place. 7. The Trustees can nominate any one of them to supervise the construction of the temple under their directions and also supervise the conduct and performance of Pujas and Ursavams in the temple. 8. The Trustees shall be entitled to open a Bank account for depositing all subscriptions and donations received by them and the same shall be operated by any one of the trustees whom they may nominate in that behalf. 9. The Trustees shall maintain regular accounts in Tamil and the same shall be duly audited by a certified auditor once in a year. 21. Even a plain reading of or a cursory look at the Clause in Ex.A.4, drive home and through point blank in unmistakable, unequivocal and unambiguous terms to the effect that the entire temple and Mandapam were intended to be constructed with the donations of the public, and for which, the Committee itself was constituted under the trustee. The trust is clearly a Religious Trust and it contemplates a religious institution and a religious edifice for public worship. 22. Applying the tests as contemplated in the cited decisions of a Division Bench of this Court, it is crystal clear that the temple is a public temple as per the very versions found in Ex.A4. In view of such clear terms, the onus of proof is on the plaintiffs to prove that the temple was not constructed from out of contributions of the public, but from out of some other sources. 23. The defendants would rely on Ex.B1, the statement of Balasubramanian, the founder of the Trust himself which was recorded by the Enquiry Officer, namely the Inspector of H.R.&C.E. In fact, Alagappan, the first plaintiff also signed in Ex.B1. Ex.B1 was marked during cross-examination of D.W.1. P.W.1 Boopathy, the fourth plaintiff would admit Ex.B1, which bears the signature of Balasubramanian, the founder of the Trust. As such, Ex.B1 is also a significant document, which would help a lot in arriving at the truth in this case. Ex.B1 was marked during cross-examination of D.W.1. P.W.1 Boopathy, the fourth plaintiff would admit Ex.B1, which bears the signature of Balasubramanian, the founder of the Trust. As such, Ex.B1 is also a significant document, which would help a lot in arriving at the truth in this case. The perusal of Ex.B1 would show that the public are in the habit of worshiping the deities in the said temple. In fact, the founder of the Trust in Ex.B1 almost set out the version as found in the written statement of the defendants 1 & 2, stating that public are in the habit of offering donations, but they are not compelled to do so. There was a Hundi in the temple for putting the offerings of public, but once it was stolen away. Viputhi, Prasadams are distributed to the devotees. It is therefore clear that the founder of the trust himself admitted that it is a public temple. 24. The perusal of the Judgment of the trial Court evinces that the trial Court was very much carried away by the fact that the saint Srimath Pamban Kumaragurudasa Swamigal lived as a human being and that he was not equal to that of the Hindu deities and that the temple dedicated for such a saint cannot be termed as a public temple. Such a view taken by the trial Court is basically wrong. The test is not as to whether the saint is equal to that of Hindu deities or not. But it should be seen as to whether for such a temple, the public contributed anything and the public are worshiping by way of right. Even the trial Court, while relying on the decision in State Bank of Madras Vs. Ramanathan Chettiyar (1962 M.W.N 173) failed to note the relevant portion in the Judgment, which unambiguously and unequivocally states that if there are offerings by the public and worship by the public it would not amount to a private temple. The trial Court while referring to the decision could have very well understood the underlying principles in that decision so as to say the ratio decidendi. The trial Court failed to appreciate even the plaintiffs document properly. 25. Ex.A5 is the Mahakumbabishegam invitation and that itself would show that general public were invited and general public participated in that grand function. The trial Court failed to appreciate even the plaintiffs document properly. 25. Ex.A5 is the Mahakumbabishegam invitation and that itself would show that general public were invited and general public participated in that grand function. The said Ex.A5 would also recite that the temple was built with the assistance of Ramanathan, Seethapathy and the statement of Ex.B1 and the recitals in Ex.A3 would also show that a committee was constituted and donations were collected and with their help, the temple was constructed. 26. The trial Court misdirected itself in probing as to whether the temple was dedicated to Lord Muruga or to the saint Srimath Pamban Kumaragurudasa Swamigal. In para No.6 of the Judgment, the trial Court would give a finding that the temple was not dedicated to Lord Muruga, but it was dedicated only to the said saint. Assuming without upholding that the temple was dedicated to Lord Muruga, yet it would not automatically on that ground alone become a public temple. Public should have the right of worship in the temple and then only it would become a public temple. It is not the nature of the deity or the consecrated statue which is kept in Karpagragam that would make the temple a public or a private one. 27. Hence, in these circumstances, the Judgment and decree of the trial Court is wrong in holding that it is not a public temple. The orders passed by the defendants cannot be set aside. Point Nos.1 and 2 are decided accordingly. Point No.3. 28. In view of the reasons given for deciding the aforesaid points, the Judgment and Decree of the trial Court are liable to be set aside. Hence, point No.3 is decided accordingly. 29. Inthe result, the appeal is allowed and the Judgment and Decree of the trial Court in O.S.No.24 of 1989, dated 10.08.1990, passed by the learned Subordinate Judge, Ramanathapuram, Madurai, are set aside and the suit is dismissed. However, in the facts and circumstances of this case, there is no order as to costs.