Abdur Rahim, J.
1. The first and the most important question in this appeal is whether the temple to which the suit relates known as the Kamakshi temple situate in the village of Omandur in the Trichinopoly District is a public temple within the meaning of Section 92, Civil Procedure Code or a private temple belonging to the defendant Puraviya Goundan.
2. The two plaintiffs who instituted the suit on behalf of the public also belong to the defendant's family. It is an ancient temple and appears to enjoy considerable reputation. At the earliest period of which we have evidence it was more or less of an unpretentious character but it has undoubtedly been expanding and growing in prosperity and fame for the last several generations. It has a number of subsidiary temples and shrines attached to it. The District Gazetteer says that ' the temple has some claim to architectural beauty and points out, what is an admitted feature of this temple, that it has no image or idol, the goddess Kamakshi like the deity in the great temple at Chidambaram being represented by emptiness or 'Akasam.' It is visited by numerous pilgrims even from other districts on certain festival days such as Pongal and Sivarathri.
3. Another notable feature of this institution is the special veneration and sanctity in which the pujari is held by the worshippers. The defendant is the present holder of that office and the evidence together with the decisions in the previous cases in connection with this temple establishes beyond question that the office has always devolved on the eldest male member of the eldest line in the defendant's family. This has been the case ever since we know anything about the institution.
4. The pujari is the most important person in the institution next only to the presiding deity. Some of the worshippers who are apparently recruited mainly from the poorer and illiterate classes even regard him as clothed with divine powers. Some of the letters addressed to him by the votaries evince an unlimited faith in his occult powers no doubt derived from the goddess Kamakshi. Many people known as Kudis or literally ryots, devotees of the temple believe in the power of the pujari to bless them with health, wealth and children and on fulfilment of their vows they make presents which form a considerable source of income to the institution. The pujari alone can perform the worship which is performed only on two days of the week, Mondays and Fridays. If he goes On tour the inner shrine or the garbhagraham is shut and wherever he goes he carries on worship similar to that in the temple. None but the pujari for the time being can perform the regular worship. The puja is suspended for 15 days on the death of a member of the pujari's family. The pujari does not perform the funeral ceremony of his father like an ordinary Hindu but a deputy performs it on his behalf.
5. The pujari is installed with considerable ceremony and, as already mentioned, the office is confined to the oldest male member of the eldest line among the descendants of the pujari. In a previous litigation in which the other members of the family claimed a share in the office of the pujari and its emoluments it was held that the office and the emoluments appertaining to it were not divisible in the family. No hundi is kept in the temple. The offerings are made to the pujari. These mostly take the form of cash, ghee or melted butter, vessels, cloth, cooked food, cattle and grain. Of these the ghee is utilised for maintaining the lights in the temple and the defendant claims that cash is offered to the pujari for services rendered by him to the worshippers though the pujari has been devoting such income to the maintenance and improvement of the temple. Of the other offerings the paricharakas receive at least a share.
6. The pujari does not keep any account and until the date of the institution of the suit the public did not in any way question his administration although the other members of this family, as already mentioned, unsuccessfully sought to establish their right to a share in the office of the pujari and its emoluments. There is no hundial or box kept for collections as in most temples. There are no regular public processions as in the case of idols in ordinary temples; but that fact would be accounted for by the absence of any idol in this temple. There is evidence that Bairavan Worship in the form of a festival used to be celebrated until at least 7 or 8 years ago by a section of the villagers who collected subscriptions for the purpose the pujari conducting the puja on their behalf before the Bairavan shrine. The Jatra worship in connection with the Mariamman festival in the village is also conducted there by subscriptions raised among the villagers. The Kallars and Nadans also celebrate a special form of worship at the temple known as perumpuja and this puja forms a substantial source of income to the temple. The tonsure ceremony is also performed here and the deity Kamakshi to which the temple is dedicated has been adopted as the Kuladevi or family deity of manyfamilies.
7. The temple and its subsidiary shrines occupy an enclosed area of 22 acres. The land is classed as gramanatham poramboke, that is to say, village site, but admittedly it is an ancient temple and I attach no special significance to the classification. The scheme of construction of the temple and its shrines does not differ from that of ordinary temples and some portions of the buildings at least were built, according to the evidence, from cash offerings made by dovotees for tirpani or temple works.
8. The temple does not enjoy any large landed endowments but in or prior to 1794 a member of the Poligar family of Thoraiyur granted certain punja lands to the temple. This is evidenced by an inscription on the ceiling of the mantapam which, as the Subordinate Judge thinks is probably the most ancient part of the building. Excepting this inscription there is no sannad forthcoming as to this grant. In Exhibit E, which is an extract from the lnam register, there is a mention of an inam of 13 acres made to ' Omandur Kamakshi Amman Goddess, worshipper Devaraya pujari.'' The inam is confirmed to the inamdar, namely, the Goddess Kamakshi represented by the ancestor of the defendant, worshipper Devaraya pujari. There was no sannad forthcoming at the date of Exhibit A but the inam is stated to be an old inam belonging to the class of Devadayam Arthamaniyam, that is, a gift to God, half rent-free. These inam lands are not now in the possession of the temple but are in the possession of several members of the family and some strangers. Besides the inscription already mentioned there are inscriptions of a later date on some other parts of the temple buildings showing that they were constructed by the ancestor of the defendant.
9. These are the main features of the institution and the question whether the temple is a public institution or the private property of the defendant's family is a matter of inference to be drawn from these facts. The origin of the temple is shrouded in obscurity and apart from the vague and unwritten tradition spoken to by the defendant there is no evidence on which the Court can find as to who was the founder of the temple. This much is certain that it is one of the ancient temples of Southern India and it was in existence before 1793, the date of the inscription on the mantapam, how long before it is not possible to determine. The family of the defendant have been exclusively associated with the management of the institution and the conduct of worship therein. All that this shows is that the right to conduct the worship in the temple was conferred on the defendant's family by the founder whoever he was or has been acquired by them by usage. Some of the buildings appertaining to the institution were constructed by the defendant's grandfather, who was the pujari at the time but the main building, as the Subordinate Judge finds, was in existence before that time.
10. The earliest piece of evidence with reference to this institution, namely, the inam grant evidenced by the stone inscription of 1794 and inam statement of 1803, points to the temple being a public institution and not the private property of any individual. It is extremely improbable that the poligar who was more or less a ruling chief-the donor of the inam dealt with in Exhibit E, would have made an endowment to a private temple; and the fact that the inam was confirmed by Government in the name of the presiding deity of the temple is a strong circumstance in support of the plaintiffs' case that the institution at that period was regarded as a public religious trust and the pujari at the time was treated merely as the manager or custodian of the inam property.
11. Considerable emphasis has, however, been rightly laid by Mr. A. Krishnaswami Aiyar, the learned vakil who argued the defendant's case, on certain special characteristics of this institution distinguishing it, according to his contention, from the ordinary temples in Southern India. Those are, as already mentioned, that no puja is performed except on two days in the week and that when the pujari goes on tour there is no substitute to perform the puja, on the occurrence of a death in his family the puja is suspended for some days owing to pollution, and the pujari unlike the pujaris at the ordinary temples is held in special veneration by those who resort to the temple and in fact he is credited with supernatural powers as the intermediary of the presiding Goddess Kamakshi.
12. The learned Subordinate Judge who is a Brahmin says that though the system of worship carried on in the suit temple is peculiar in some particulars it is not different in essentials from the worship carried on in the ordinary temples of Southern India. It cannot be seriously contended that there is any special form of puja which is known exclusively to the pujari, for it is in evidence that the observances and the formula are noted down in a book kept by the pujari.
13. The peculiar facts in connection with the institution such as they are do undoubtedly indicate however that the worship conducted there derives considerable significance from the personality of the pujari; but it would be going too far to hold relying on the exaggerated expressions of some of the devotees occurring in several letters and in the deposition of some witnesses that the pujari is the real institution and the temple is only a place where he comes on his ministrations to an invisible deity, or in other words, the temple is the private property of the pujari built in order to enable him to carry on his own devotions and not for the spiritual benefit of any section of the Hindu public. That in fact is the gist of Mr. A. Krishnaswami Aiyar's arguments. He wants us to hold that the pujari in this case holds the position of a matathipathi, and the so-called Kamakshi Temple is like a mutt. But the primary function of the institution known as a mutt is the imparting of religious and spiritual instruction and that could not be predicated of the present temple. In this connection a recent decision of the Privy Council in Sethuramaswamiar v. Meruswamiar 34 M.L.J. 130 has been pressed upon our attention. That was a case of a grant of certain properties made by the Rajah of Tanjore to a holy man whom the Rajah brought to Tanjore as his Guru. Some of the grants were for non-religious purposes and they were held to be ordinary partible property. Others were for religious and charitable purposes in connection with the mutt founded when the Guru came to Tanjore and Their Lordships of the Privy Council held, with respect to the properties of the latter description, differing on this point from the High Court that the intention of the founder was that they should be administered by the man who was the head of the mutt to which office the eldest son of the previous holder would naturally succeed, the office being indivisible among the members of the family. Therefore they came to the conclusion that there was no jurisdiction in the Indian Courts to settle a scheme the only effect of which would be to take away the sole power of management from the 'eldest son. In this case there was no question raised as to whether the property granted for religious and charitable purposes did not form a public trust and as such whether Section 92, Civil Procedure Code would not be applicable. The scheme that was sought for was only for the purposes of the management of the property by the different members of the family it being the case of the plaintiffs that all the members of the family were entitled to a share in the management. Their Lordships did not consider whether in the interests of the public a scheme should be framed under the provisions of Section 92, Civil Procedure Code. No such claim was made by the plaintiffs who sought only to establish their right of management as members of the defendant's family.
14. Much reliance was also placed on the fact that the members of the public never asserted a right to the supervision of the affairs of this temple and that the pujari never kept any account and in fact dealt with the property of the temple and its income in any way he chose without any interference on the part of the public. Mr. A. Krishnaswami Aiyar specially pointed out the fact that in the previous litigation in which certain members of the family to which the defendant belongs and of which the plaintiffs themselves are members there was no specific allegation that it was a public temple. As regards the inaction of the public, I think it is correctly observed by Seshagiri Aiyar, J. in Subramania Iyer v. Lakshmana Iyer (1920) 54 I.C. 177 in Letters Patent Appeal No. 10 of 1919 that 'a Hindu, after having made an offering to the deity, never concerns himself about its application. He considers that his duty is ended and that if the persons who are entrusted with the control of those offerings, do not behave as they ought to, the deity would look to their punishment and that he has no further concern with it. This is the general attitude of the people. ' In the previous litigation the members of the family were only concerned in asserting their private rights to the offerings and other incomes and not in protecting the interests of the puplic. The plaintiffs in those suits tailed in establishing their right to the office of the pujari as against the defendant's father and it was held that they were only entitled to the office of paricharakas while the eldest male member of the family in the eldest line was alone entitled to the office of pujari.
15. Considerable significance must be attached to the inam grants already referred to which, in my opinion, furnish very cogent evidence that the temple is a public institution. The whole of the evidence undoubtedly shows that the members of the public are freely admitted to the temple subject no doubt to such regulations as are either sanctioned by usage of the institution or imposed by the pujari who is in charge of the management for the proper conduct of the worship. Even when the pujari is absent the devotees come to the temple and take holy ashes from a pit in the temple. That the public had always been freely invited to the temple for the purpose of worship is abundantly clear and cannot be disputed. Festivals are celebrated on a large scale and numerous worshippers resort to it on such occasions from remote places. This can hardly be said to be an ordinary characteristic of a private family temple. A private temple is generally attached to the dwelling house of the founder so that his family and his descendants can carry on their worship there. This is fully explained in the Kallipatti case 54 I.C. 177. The temple to which the suit relates is not connected with the residence of the defendant. It occupies a large area of ground and numerous shrines are attached to it all being enclosed by a wall. I am of opinion that the fact that members of the public have all along been invited and freely admitted to this temple for purposes of worship affords a prima-facie inference of dedication to the public even without resorting to such general presumption as is referred to in the judgments of Sadasiva Aiyar and Seshagiri Aiyar, JJ. in the Kallipatti case referred to namely that in the Southern Presidency except perhaps the West Coast the presumption is that a temple built in the ordinary style with prakarams and mantapams is a public temple until the contrary is proved. This inference is strengthened by the existence of the inam grants. Neither the peculiar mode of worship prevailing in the institution nor the fact that the management follows a particular line of descent in the pujari's family or that the pujari for the time being attracts considerable personal devotion, either singly or collectively, would be sufficient to rebut this inference, and to indicate that the temple is the private property of the defendant's family. The suit therefore as instituted under Section 92. Civil Procedure Code is maintainable.
16. With reference to the question as to the properties in schedule B subject of Appeal No. 157 of 1918, whether they belong to the temple or are the private properties of the defendant, there is really no evidence in support of the plaintiffs' claim. The mere fact that the defendant did not keep any account of the offerings would not justify the court in presuming that whatever properties were acquired by him were acquired from the temple funds. The defendant and his father and grandfather had properties of their own apart from the offerings made to themas pujari of the temple; and there is nothing to suggest that the properties in schedule B could not have been acquired out of the income of their own properties. The title deeds do not show that they were acquired on behalf of the temple. No doubt in some of them the defendant's father is described as the pujari of the Kamakshi temple; but that is nothing more than a description.
17. Of the value of the offerings the evidence is discrepant and, as the Subordinate Judge points out, they consist mainly of perishable articles which are distributed among the worshippers and the servants of the temple according to the prevalent usage. The trial Judge also rightly points out that sometimes large money presents are received from the worshippers when their vows have been fulfilled and these receipts together with the moneys collected for the construction and improvement of the temple might well be accounted for by the considerable additions and improvements affected by the defendant's father. The value of the temple buildings as we find them now is estimated at a lakh of rupees or so and there can be little doubt therefore that the offerings in cash as well as the other available income must have been largely if not entirely utilised in improving the temple.
18. The defendant took over charge of the temple on the death of his father in April 1914. The plaintiffs claim that he should account not only for the period for which he has been in management but also for the period of his father's management. I do not see how the defendant can be called upon to render an account of his father's management as it has not been shown that he was meddling in the management of the temple during his father's time. So far as his own period of office is concerned the Subordinate Judge finds that nothing definite has been proved against him. There is further the broad fact in the defendant's favour that during his management and also that of his father and grandfather the temple has been considerably improved and augmented. The fact that neither the defendant nor his predecessors in office kept any account is no doubt attributable to their belief, however erroneous, that the temple was the private property of the pujari. Apart from that no case of mismanagement has been proved against the defendant.
19. The Subordinate Judge has directed a scheme for the future management of the temple and its affairs, the main feature of which is to be that the pujari should maintain proper accounts of the income and expenses of the temple and that proper safe-guards are to be provided to prevent misappropriation or misapplication of the temple funds. Once the temple is found to be a public institution the Court was justified in framing a scheme of this nature. At the same time care must be taken not to impair in any way the prestige or the privileges which the pujari enjoys in this institution and the scheme must also have due regard to all the usages prevalent in the temple.
20. The decree of the Subordinate Judge will be confirmed and Appeals Nos. 25 and 157 of 1918 dismissed with costs.
21. I agree with my learned brother that the suit temple must be regarded as public and therefore refer only to certain portions of the case, on which the view I take differs to some extent from his.
22. Firstly I respectfully doubt the relevancy of his reference to the characterestics of a private family temple, if, as I understand it, it implies that no third class of temples besides public and private family temples is conceivable. For there seems to me no difficulty in the conception, which is well understood in England, of a private place of worship unconnected with any family and owned by an individual. It is however sufficient that the law, as laid down in the judgments of a Bench of three Judges in Subramania Aiyar v. Lakshmana Goundan (1919) 54 I.C. 177 (Letters Patent Appeal No. 10 of 1919), will cover the present case. It may be doubtful whether the broad dicta, which those judgments contain are to be read literally. For, when, for instance, Seshagiri Aiyar, J. says that 'it would undoubtedly be regarded as a fraud practised upon the public that the income derived with reference to the sanctity and holiness of a shrine should be regarded as the perquisites of the persons in charge ' and that ' it would strike at the very root of religion in India to hold that the person who is permitted by the worshippers to receive the offerings is the owner, and not simply the trustee, of the income,' it is difficult to see how the existence of any private temple at all can claim legal recognition. But the rule, which the judgments undoubtedly support, that claims to temples as private are to be regarded with disfavour and proved by those, who make them, is sufficient for the decision of the present case and entails a decision in plaintiffs' favour.
23. I have mentioned my learned brother's reference to the characteristics of a private family temple, in view of the argument based on the classification of the site of the suit temple in the settlement registers as village site, that this is inconsistent with its being part of or attached to defendant's dwelling house. The point of the reference to those registers, Exhibits H, H (I), is that at successive settlements the large extent of 22 acres comprising the site is shown as poramboke Gramanatham, not as the sites of other temples are shown and as one would expect it to be shown, if it resembled them, as pagoda or village temple poramboke. Gramanatham is the generic term for village site, including that on which the houses of private residents stand; and there is no doubt some force in the argument that these descriptions are consistent with an acquisition and holding' by defendant's predecessors and defendant as ordinary private site and not, like the sites of other temples, for a specified communal purpose. It is however difficult to assume that the registration necessarily represents any full consideration of the circumstances or may not have been accepted by the superior authorities without scrutiny in consequence of the influence probably exercisable by defendant's predecessors over the village officers. It is important that no registry consistent with defendant's ownership was obtained for the temple inam land. In the circumstances the entries in the settlement registers deserve very little weight.
24. The other point, on which I desire to supplement the judgment just delivered, is the position of the pujari, at present defendant, his contention being in particular that he possesses the attributes of the superior of mutt and in general that, the sanctity and popularity of the institution and the conduct of its worship depend directly on his personal hereditary qualifications for his position and that therefore the worship and the temple itself must be supposed to be under his unfettered control. As regards the first point the analogy between him and the head of a mutt rests on slight foundation. For, without attempting an exhaustive definition of institutions of that kind, I can see nothing here resembling the provisions for religious study, which is ordinarily among a mutt's definite objects, or the initiated disciples, from whom the superior of a mutt is chosen. And on the second, although the ritual of the temple is esoteric, in the sense that it is preserved in the memory of the pujari or 'in a note-book in his possession, and the performance of that ritual is not in fact seen by the public, it is not, I believe, uncommon for particular temples to have their particular uses, of the details of which the public will not be aware; and, if, as the evidence indicates, some of the very indistinctly qualified class of kudis or votaries are in the habit of using language consistent with the pujari's own possession of supernatural powers, that, it may be suggested, is not without precedent, as a confusion between the respect paid to the efficacy of the priest's intercession and veneration of the deity, to whom his prayers are directed. In the present case; that deity is the Goddess Kamakshi a well known member of the Hindu Pantheon; and there is not any such question as there was in Subramania Aiyar v. Kandasami Goundan (1919) 54 I.C. 177 already referred to, of devotion to the founder of the temple or his relics.
25. It is in fact the absence of evidence of such devotion and of anything in the present case regarding the foundation of the temple or its founder, which is strongly against defendant; and there are also against him the inam registry in the name of the deity and the continuous free access of the public to the premises. Such access, I regard as in no degree inconsistent with the regulation of services by defendant or their, performance on particular days of the week; and it is not in my opinion shown to be true that worship is confined to those regular services and is never performed, as it is in other temples, in connection with the offerings of particular devotees. That the public have hitherto made no attempt to assert rights of control over the temple and its revenues and that previous litigation, to which defendant's family, including plaintiffs, were parties, included no such assertion, is merely consistent with the prevailing apathy in respect of religious trusts and justifies no inference, especially when, as is the case, there is no direct or public mismanagement of the trust established. With these observations, I concur in my learned brother's finding that the institution is public.
26. I concur also in the remainder of his judgment, including the observations he has made regarding the further course of the proceedings.