C.R. Jayaraman & Ors vs M. Palaniappan & Ors

the trial court that their ancestor Ellu Iyer,

constructed and built three temples, namely, Pillaiyar

Temple, Anjaneyaswami Temple and Gopalakrishna

temple out of his own funds some time before 1890.

The aforesaid temples were throughout treated as

private temples of the appellants and were virtually in

their management. The members of the public never

had any right to offer worship in the temples and the

deities were never dedicated to the public. On 18th of

March, 1965, the mother of the first appellant had

received a letter from three persons alleging that they

had been appointed as non-hereditary trustees of the

aforementioned temples by the Hindu Religious and

Charitable Endowments Board (in short "the Board"),

directing the mother of the first appellant to hand

over the property and records of the temples. In the 3

same year, the mother of the first appellant filed a Writ

Petition being WP No. 1492 of 1965 before the High

Court at Madras, praying for quashing the order of the

appointment of non-hereditary trustees of the said

temples. On 15th of March, 1967, the High Court

allowed the Writ Petition directing the mother of the

first appellant to file an appropriate application before

the Deputy Commissioner of the Board for declaration

of the aforesaid temples as the private temples of the

family of the appellant. Thereafter, the mother of the

appellant filed an application being O.A. No. 28 of

1970 before the Deputy Commissioner of the Board

under section 63(a) of the Hindu Religious and

Charitable Endowments Act. The said application was

dismissed on 1st of October, 1973, and on appeal, the

Commissioner of the Board confirmed the said order

on 19th of December, 1973. Thereafter, the appellant

on 18th of March, 1974, filed a suit for setting aside

the order of the Commissioner being O.S. No. 169 of

1974 before the Principal Subordinate Judge, Erode, 4

Tamilnadu. The trial court held the aforesaid temples

as public temples. Aggrieved by the judgment and

order of the trial court, the appellants preferred first

appeal before the Madras High Court being A.S. No.

665 of 1982 on 13th of August, 1982 which was

dismissed by the High Court on 21st of June, 1996.

Thereafter, the appellants preferred a Letters Patent

Appeal being L.P.A. No. 196 of 1996 before the

Division Bench of the High Court which dismissed the

same. Thus, being aggrieved, the appellants preferred

the present appeal, which on grant of leave was heard

in the presence of the learned counsel for the parties.

3. We have heard the arguments of the learned

counsel appearing on behalf of the parties and

perused the materials on record. Having done

so, we do not find any reason to interfere with

the judgment of the High Court which was

based practically on the question of fact

arrived at not only by the High Court but also

by the trial court. Reasons are as follows : 5

4. Learned counsel appearing on behalf of the

appellants contended that the Board was not

empowered under the Madras Hindu Religious

and Charitable Endowments Act, 1959 to

declare a private temple as a public temple. We

are not in agreement with this argument of the

learned counsel for the appellants. A perusal of

the relevant provisions of the Act would clearly

show that there is no bar for the Board to

declare a particular temple as a public one.

However, the suit that was filed by the

appellants which gave rise to filing of this

appeal in this Court was for a declaration that

the aforesaid temples were private in nature

and not public temples. Therefore, it was for

the plaintiffs/appellants to prove on evidence

that such temples were private in nature.

5. Before we proceed further, we may, at this

juncture, refer to a decision of this Court in 6

the case of Hari Bhanu Maharaj of Baroda

vs. Charity Commissioner, Ahmedabad

[(1986) 4 SCC 162], in which this Court has

categorically held that the onus of proving the

temple as public or private vests with the

Board. Drawing inspiration from the aforesaid

decision of this Court, the learned counsel

appearing on behalf of the appellants had

drawn our attention to the order passed by the

Board holding that the aforesaid temples were

public in nature and submitted that the said

order of the Board was not in accordance with

law because the Board had failed to discharge

its onus of proving the aforesaid temples as

public. From a plain reading of the order of the

Board, which is already on record, we are of

the view that the Board had categorically held

on materials sufficient to prove that the

aforesaid temples were in fact public temples

and not private temples as alleged by the 7

appellants. In the aforesaid decision of this

Court, it was observed as follows :-

"Even the provision of the collection boxes for cash and grains cannot by itself be a decisive factor to conclude that the Math is a public Math. The collection boxes had been installed in the Sabha Mandap as well as near the Samadhis. Since there is no evidence that Laxman Maharaj and Haribhat Maharaj for whom the Samadhis have been built were religious leaders revered by the public, the provision of the collection boxes near their Samadhis would have been only for deposit of offerings by the members of the families on Guru Purnima day or in fulfilment of vows taken by them. More than this, the contents of the cash boxes themselves disprove the assumption that they have been kept there to enable the members of the public to make offerings in cash or grains during their visit to the Mandir. Of the two boxes kept in the Sabha Mandap one was found to contain 1/4 pound of wheat and the other Rs. 0-8-

9. Similarly the boxes kept near the Samadhis were found to contain 1/4 pound of rice and one paise respectively. If the members of the public had been visiting the Mandir even occasionally and depositing contributions of grains and cash in the collection boxes, the quantum of grains and the amount of cash would not have been so meagre and trivial as 1/4 pound of wheat and, Rs. 0-8-9. These revealing features have been lost sight of by the High Court and has led to fallacious conclusion."

8 In the present dispute as had been noted by the

trial court and later affirmed by the High Court in its

impugned judgment, it has been proved beyond doubt

that public offerings were accepted during the normal

days of worship by the Poojari, and that the members

of the public visited the temple often as a matter of

right without any hindrance or obstruction. The

appellants contended that as per the Hindu customs,

they could not stop the general public from coming

inside the temple even though the temple is a private

temple. Though this contention has some weight in

the light of the circumstances, yet it cannot be the sole

deciding factor to determine whether a temple is in

fact a private one or dedicated to the public. In the

decision reported in Goswami Shri Mahalaxmi

Vahuji vs. Shah Ranchhoddas Kalidas (dead) &

Ors. (AIR 1970 SC 2025), this Court has held as

follows:

9

"The true character of the particular temple is decided on the basis of various circumstances. In those cases, the courts have to address themselves to various questions such as:

i) Is the temple built in such imposing manner that it may prima facie appear to be a public temple?

ii) Are the members of the public entitled to worship in that temple as of right?

iii) Are the temple expenses met from the contributions made by the public?

iv) Whether the sevas and unsevas conducted in the temple are those usually conducted in public temples?

v) Has the management as well as the devotees been treating that temple as a public temple?"

Taking these above-mentioned points into

consideration, the trial court as well as the High Court

proceeded to determine the nature of the aforesaid

temples as to whether they were public or private in

nature. In this connection, the trial court as well as

the High Court, on consideration of fact and evidence,

documentary and oral, came to the conclusion of fact

that the appellants could not prove by production of 10

cogent evidence that the temple was or is situated in a

patta land of the appellants as they had claimed. The

High Court in its judgment passed in the first appeal

dated 21st of June, 1996, which was affirmed by the

Division Bench of the High Court in the Letters Patent

Appeal, observed as follows:

"Two choultries have been put up in Pillaiyar temple and the object of constructing those choultries is to enable the relatives of his predecessors and the lessons to stay there when they come to Erode and it would go to show that the object of constructing the choultry itself is to enable the persons other than the family members of Ellu Iyer to stay there.

Therefore it cannot be stated that the temples have been constructed in their patta land and the object of constructing the temples is only to benefit their family".

6. The Poojari of the aforesaid temples deposed

before the trial court and stated categorically

in his deposition, which was accepted by the

High Court also, that the Pooja articles were 11

received from the public during the Pooja time

and in turn, he used to give Prasadam to the

public. It was also stated by him that

utsavams were used to be conducted during

"Skanda Sasmti", "Thai Pyosam", and

"Panchuni Uthiram"; and on those occasions,

the deities were taken out as a general custom

in procession through the main roads of Erode

town. It was also admitted by him that during

festival days and also during the Pooja time,

public used to come and offer their worship

before the deities and there was no direction

issued to him that he should not perform the

pooja offered by the public. The Poojari had

also admitted before the Assistant

Commissioner of the Board that public used to

come to the festival without any obstruction

and that they used to offer donations and

collect funds from the public to conduct

festivals in the temples. The High Court, in its 12

impugned Judgment, relied on its decision

reported in The Madras Hindu Religious

Endowment Board vs. V.N. Deivanai Ammal

By Power of Attorney Agent TV.

Mahalingam Iyer, [1952 (II) M.L.J. 686],

which held that where there was an Utsava

idol and processions were taken out, it would

indicate the fact that the temple was a public

temple. This principle was also reiterated in

another decision of the Madras High Court in

the case of Commissioner, H.R. & C.E. Vs.

Kalyanasundara Mudaliar; [1957 (II) MLJ

463], wherein it was also held that the

provisions of the settlement deed taken along

with the other features such as the existence

of Dwajasthambam, Balipeetham and Utsava

Vigraham and carrying on deity in procession

and accepting Deeparadhana from the

members of the public on that occasion

conclusively establish that the institution was 13

a place of public religious worship conducted

to or for the benefit of the Hindu community in

the village as a place of religious worship and

that it was the public and not a private temple

and fell within the definition of Section 9(12) of

the Madras Act II of 1927. We are in respectful

agreement with the views expressed by the

Madras High Court in the aforesaid two

decisions regarding the principles to be applied

to come to a finding whether the temple is

private or public in nature. The evidence at our

disposal also shows that the public at large

used to offer worship to the Vinayaka Temple

in the platform of Brough Road and also the

Ajaneya temple in the bank of the river

Cauvery and these temples were always

accessible to the residents of Erode and the

public had always regarded these temples with

great esteem and veneration. This Court in

Deoki Nandan vs. V. Murlidhar & Ors. [AIR 14

1957 SC 133], held that where idols were

installed not within the precincts of residential

quarters, but in a private building constructed

for that very purpose on a vacant site and

where some of the idols were permanently

installed on a pedestal within the temple

precincts, that is more consistent with the

endowment being public rather than private.

Further, a Constitution Bench of this Court in

Tilkayat Shri Govindlalji Maharaj etc. vs.

State of Rajasthan & Ors. [AIR 1963 SC

1638], held that where evidence in regard to

the foundation of the temple is not clearly

available, the answers to the questions

namely, are the members of the public 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 and are

their offerings accepted as a matter of right will 15

establish the character of the temple.

Therefore, according to the above mentioned

decision, the participation of members of the

public in the darshan in the temple and in the

daily acts of worship or in the celebrations of

festive occasions are to be very important

factors in determining the character of the

temple. In the present case, even though the

appellant has contended that it is not possible

under the Hindu custom to refuse the entry of

the public into the temple, but this contention

cannot be supported in the light of the

discussions and rationale of the cases

mentioned above.

7. Apart from that, the appellants could not prove

by adducing any evidence that the temples

were built in their private patta land as was

alleged by them and the temples were situated

and constructed on their own land. Since the 16

findings arrived at by all the Courts below that

the temples were public in nature, are

questions of fact and based on considerations

of material evidence, documentary and oral, in

our view, such findings of fact affirmed by the

High Court in the first appeal and also

affirmed by the Division Bench in the Letters

Patent Appeal, until and unless, the appellant

could show that the findings arrived at were

perverse. In the present case, as we have

already held that all the Courts below, on

entire consideration of the materials on record,

had held that the temples in question are

public in nature, it is difficult for us to

interfere with such finding of fact in the

exercise of our power under Article 136 of the

Constitution of India.

8. In view of our discussions made hereinabove,

we do not find any infirmity in the findings of 17

the High Court as well as of the trial court to

hold that the aforesaid temples were public in

nature and the appellants had failed to prove

successfully that the same were private in

nature.

9. For the reasons aforesaid, we do not find any

infirmity in the impugned judgment and,

accordingly, we dismiss the appeal. In the facts

and circumstances of the case, there will be no

order as to costs.

.........................J [Tarun Chatterjee]

New Delhi; ........................J. December 18, 2008. [Aftab Alam]