1. This Letters Patent Appeal is from the judgment of Venkatadri J. The appellant herein who as the jaghirdar of Jadaya Goundan Jagir in Kallakurichi taluk, South Arcot Dt, filed the suit, 0. S. No. 24 of 1957, Sub Court, Cuddalore, to set aside the order of the first respondent (the Commissioner, Hindu Religious and Charitable Endowments Board) declaring that the shrine known as 'Chinna Thirupathi' Srinivasa Perumal temple situate in the limits of the aforesaid jagir is a temple as defined in Section 6(17) of the Madras Hindu Religious and Charitable Endowments Act, Madras Act XIX of 1951. The jagir is situate in the Kalroyan hills and consists of about 40 villages. One of the villages is known by the name of Chinna Thiruuathi and there is a shrine and the deity there in is known as Srinivasa Perumal which the plaintiff claims as the family detty of the jagirdars. His case is that the shrine and the deity installed therein belong to the plaintiff and his family, that the temple was being maintained out of the funds of the jagir and that it has never been dedicated for public worship. The Commissioner, Hindu Religious and Charitable Endowments Board, differing from the Deputy Commissioner, held that the shrine in question is a public temple and is used as a place; of public worship, clearly satisfying the tests specified in, Section 6 (17) of the Act. This view has bean affirmed by the learned Subordinate Judge of Cuddalore as well as by Venkatadri, J.
2. The only point that arises in the present appeal is whether the suit shrine is a temple as defined in Section 6(17) of Madras Act XIX of 1951. It must be Droved that the Dlaca was used and is being used for public religious worship and that it has been dedicated to and for the benefit of or used as of right by the Hindu community or any section thereof as a place of religious worship. The origin of the temple is unknown and there is no need of dedication. The plaintiff himself has not adduced any evidence as to who founded the temple. Admittedly, he does not know who built the temple and no records relating to the construction, of the temple have been filed. Even though the witnesses examined on the side of the plaintiff are very old people, they are not in a position to give any useful evidence as to the origin of the temple, when and how it was built, with, the result that we have necessarily to deal with the matter as a very ancient temple whose origin is unknown. Further, in respect of (temples in our parts (Madras State) unlike those in Malabar and Bengal, there is a strong presumption that the temples are public temples.
3. The available and relevant information about the temple in question is what is contained in the Gazetteer of the South Arcot Dt published in 1906 (which is marked as Ex. B-l) at page 334 and which is as follows:
'The temple at Chinna Thirupati is not architecturally remarkable being a plain stone erection destitute of ornament but it has a great reputation, even among the dwellers in the low country and the annual car festival tilere in December or January is largely attended by the people from the plains as well as the Malayalis ...... The shrine like others in similarly wild spots, has a reputation for granting success to those who make vows to it and is a favourite place for the ceremony of the first shaving of the heads of Hindu children. The God, as has been mentioned, is Venkatesa (or Srinivas?.) Perumal and is identical with the Deity at the famous shrine at Tirupsti in North Arcot. Hence, the name Chinna Thirupathi.'
From this description it is quite evident that the temple is a popular one, in which the right of worship is not confined to the family of the plaintiff alone but, on the other hand, the temple has always been and is accessible to all the villagers living in that locality who have been holding the temple in great veneration, the deity being considered by them to be a replica of the famous deity Lord Venkateswara in Thirumalai Hills in' Chittoor Dt. It is in this important background of the location of the temple in the hillock having this name 'Sri Venkateswara' and the village being called Chinna Thirupathi, that the question as to whether there temple is a public or private one has to be considered in this case.
4. The dispute as to whether a temple is a public or a private temple has frequently come up before courts and several tests have been laid down by the judges from lime to time regarding the materials for determining whether a temple is a public temple especially where there is no proof of express dedication by document or proof as to who and how the temple in question was founded. In the instant case, we are of opinion that all the tests which go to prove that the temple is a public temple have been amply established and we have no doubt in our minds that the suit temple is a public temple. As we have said above, the very situation of the temple in the instant case in a hillock is a powerful circumstance indicating that it is a public temple and is accessible to ill the people living in the locality. The deity has become a very popular deity to the villagers and the ceremonies and other customary festivals that are performed in the temple are similar to those at Tripathi. The suit shrine is built of stone. It has a mandapam and a tower. The deity has several vahanams and there are also utsava deities. The temple owns a car in which the utsava deity is taken, out in procession during the Brahmotsavam festival daw which are conducted for a period of ten days in the month of Purattasi just like in Tiruoathi. All these features indicate that the temple is a public one. Again, the expenses of the temple are met by collections from the public. The devotees put moneys in the hundial kept in the temple as in Tirupathi. During the festival] days the public put up big pandals after clearing the thorny tracts up the hills.
5. A reading of the; evidence of P. W. 2, the archaka of the temple, conclusively proves that the temple is a public temple. He admits that thousands of people attend the car festival, that hundial collections are made and that the hundials will be opened in the presence of other big persons (third parties) from outside the jagirdar family. This feature of keeping a hundial and opening the same in the presence of respectable third parties is a strong circumstance indicative of the public character of the temple. P. W. 2 also admits that the temple has got several vahanams, It is important to note that he has admitted that people, thousands in number freely come for worship without any let or hindrance and that it is not necessary for the worshipping public to take the permission of the jagirdar. There is the further evidence that some members of the Malayali family have been functioning as hereditary pujaris in the temple from very ancient times. If it is a private temple there is no question of any person having a right to function as a hereditary pujari. Such a conception of a. hereditary pujari is invariably connected and consistent with a public temple only. It is never found in a family private temple.
6. P. W. 4 is a very important witness. He is an old man aged 70 years and his evidence is to the effect that, at the time of the annual festival, the thorny tract and the ground are cleared by the residents of the five villages who have been doing hereditary service by putting up the necessary pandals and clearing the grounds. Besides the oral evidence, such documentary evidence as has been adduced clearly points to the same conclusion and affords clinching evidence. The account books which the plaintiff has produced (Ext. A-6 to A-12) show that on several occasions, Nattans and Moopans made collections from the worshipping public and handed them over to the jagirdar for the conduct of the festivals. If the suit temple is a private temple of the jagir of the plaintiff, this conduct of the plaintiff receiving public collections made by Nattans and Moopans and from the worshipping public is wholly inexplicable, lit our opinion the evidence relating to the public taking vows at the temple and the devotees going to the temple for performing tonsure ceremonies while performing such vows is a very important piece of evidence fortifying the concision that the temple is a public temple. In the first place the plaintiff and his ancestors would not have allowed the general public to have their heads shaved in the temple premises if the temple is their private temple. Secondly, the devotees and the worshippers take vows and go to the temple for tonsure ceremonies only because of their piety and great religious faith that they are doing such things in a public temple before Lord Venkateswara. We think that this feature, reflecting as it does, the above consciousness of the community is wholly inconsistent with the notion of a private temple.
7. The evidence of the plaintiff himself is against his case and emphasises the public character of the shrine. In his evidence he admits that the puja is performed in the non-festival days by the members of the four families known as Nambisans and that the plaintiff cannot remove any Nambisam from, his office. This right of hereditary office of the pujari is which is inherent in the four families aforesaid is wholly inconsistent with the temple being a private temple. As mentioned above, this structure and the location of the temple again lead to the same conclusion. In the case of a private temple the temple will be built within the residential quarters of the founder, so that he can have easy access to the deity and worship the same as frequently as possible, daily and any number of times. In the instant case, the plaintiff and his predecessors (Jagirdars) have been living at Rettiamma which is at a, distance of six miles from Chinna Tirupathi and the hillock on which the temple is constructed is about 2000 feet high. If it is a family temple it would; not have been built at such a distance and on a hillock over 2000 ft. high. Even the thorny track up the hills has got to be cleared by the villagers and not by the servants of jagirdars. When we analyse the evidence we find that at every stage every feature proves that the temple is a public temple.
8. When Were is no express dedication the character of the endowment has to be determined only from the long usage and proved facts which in this case show the temple is a public temple. From ancient times, the public have been worshipping in the temple in an open and unconcealed manner without any let or hindrance and admittedly without any objection from the Jagirdar and without any permission from him. We are therefore of the opinion that the evidence in this case has totally failed to rebut the strong presumption in the case of temples in our parts (Madras). On the other hand, the positive evidence, both oral and documentary, as well as long usage of the institution clearly prove that the temple is a public one.
9. Learned counsel on both sides drew our attention to some of the cases including the tests for det... mining whether a temple is a private or public one. It is unnecessary to refer to them in great detail as the principles are well established and it is only a question of applying those tests to the instant case. In Ganapathi Iyer's Endowment 2nd Edn. at page 8G, the learned author states the law as follows:
'The existence of regular priests will be strong, if not conclusive, evidence of a public endowment. It may however be stated hers that if a temple is open for public worship and the rites and ceremonies are such as are observed; in public temples it will be strong evidence that it is a public institution.'
In Madras Hindu Religious Endowments Board v. V. N. Deivanai Ammal, : AIR1954Mad482 it was held that in the case of an old temple dedication to the public as a public temple may be presumsd. from long user by the public) as of right. Reference may also be made to the Statement of the Law of Endowments by Mukherji, 2nd Edn. pages 172 to 179. In Deoki Nanda. v. Murlidar, (S) : 1SCR756 , it was pointed out that the fact that the idol was installed1 not within the precincts of the residential quarters but it was installed in a separate building constructed for that very purpose on a vacant site was and important factor in favour of holding, that the temple was a public temple. In that case it was held that the appointment of a pujari or an archaka for performing the puja in the temple was an equally strong piece of evidence! emphasising the public character of the temple. In Narayanan v. Hindu Religious Endowments Board, AIR 1938 Mad 209, a Bench of this Court has held that when user by the public generally to the extent, to which there is worship in the locality is established, it would be reasonable to presume that the user by the public was as of right unless there was evidence that the user was with the permission of the founder or that the founder has exercised arbitrary powers of exclusion. In Narayan v. Gopal, : 1SCR773 the Supreme Court completely approved this statement of law of our court in : AIR1938Mad209 , aforesaid. From the judgment of the Supreme Court, : 1SCR773 it is clear that the fact that the worshipping public are allowed to worship freely and that they were never excluded and that there were utsava deities which were taken out in procession during the festival and the fact that a hundial box was kept in which the worshipping public put their offering in the hundials taken. along with the very structure of the temple constituted powerful1 evidence of the public character of the institution. In Sitaramanujachari v. Vellamma, AIR 1916 Mad 452 : 2 Mad LW 858 a Bench of our High Court took the view that the fact that the public were freely allowed to worship in the temple without the necessary to obtain permission from anybody and that they also performed vows was an important circumstance proving that the temple is a public temple.
10. Learned counsel for the appellant, placing reliance upon the decision in : AIR1954Mad482 , contended that as no property has been dedicated for the upkeep of the temple, it must be presumed that the temple is only a private temple. The facts in that case are clearly distinguishable from the instant case and we are of the opinion that that decision does not support the contention of the appellant. In that case it was proved as a fact that the temple was recently built in 1919 and the expenses of the temple were met by the private funds of the founder and the origin of the temple was known. The only question was whether the facts in that case proved that the temple which was recently built had been dedicated to the public and it was held that such dedication was not proved. The examination of the facts of that case and the reasoning there in shows the distinction between an ancient temple and a temple recently built; because in the case of an old temple such a dedication to the public must be presumed from long user by public as of right. It is in that context of a recently built temple that the absence of any dedication of a property was adverted to in that case.
11. Learned counsel for the appellant has placed considerable reliance upon the judgment of the Privy council in Bhagwan Din v. Girhar Saroop and contended that the fact that the worshippers were allowed to the temple for worship without any let or Hindrance and that on the festival days public subscriptions were also collected will not detract from the private character of the temple unless there was clear proof of dedication to the temple. Here again the case before the Privy Council is clearly distinguishable from the instant case. In that case a grant of the year 1781 to an individual 'Daryao Gir and his heirs in perpetuity' was proved and the origin of the Endowment as a private endowment was clearly established. The Privy Council held that the mere fact that the worshippers were not turned away or that the deity had acquired considerable popularity among the worshippers and among the people coming there for festival would not be sufficient to deprive the family of their private right to the endowment. It was observed that dedication to the public is not lightly to be inferred when it is known at its inception the temple property was acquired by a grant to an individual or to a family. In the present case the origin is not known and there is no question of a temple proved and known to be private at its inception being established as a public temple by subsequent dedication. In view of 'the facts in , and the important findings thereon, that decision does not help the appellant.
In. this connection, reference may usefully be made to the judgment of the Privy Council in Mundachen Koman Nair v. Achuthan Nair in which the distinction between an inference to be drawn from the user in respect of a temple which was initially proved to navel been private and the inference to be drawn from user where there was no proof of such dedication as a private endowment in its origin is pointed out. Their Lordships of the Privy Council observed in -
'Had there been any sufficient reason for holding that these temples and their endowments were originally dedicated for the tarwad and so were private trusts, their Lordships would have been slow to hold that the administration of the public in later times possibly owing to altered conditions would affect the private character of the trusts. As it is they are of the opinion that the learned Judges of the High Court were justified in presuming from the evidence as to public user which is all one way that the temple and their endowments were public religious trusts'.
There is no need to refer to the other cases on the point. We have no hesitation in agreeing with the view taken by our learned brother, Venkatadri J. in holding that the temple in question has not bean proved to be a private temple of the plaintiff-appellant. On the other hand, the evidence overwhelmingly proves that the temple is a public temple. The appeal therefore fails and is dismissed with costs.