Panchapakesa Ayyar, J.
1. O.S.A. No. 47 of 1949 had been filed against the judgment and decree of our learned brother, Panchapagesa Sastri, J., dated 22nd April, 1949, in O.P. No. 117 of 1948, dismissing that O.P. which had been filed by one Mahadeva Gurukkal, for setting aside an order of the Hindu Religious Endowments Board, holding Sri Vallabha Vinayagar Temple, situated in No. 176, Anna Pillai Street, G.T., Madras, as a ' temple ' under Section 9(12) of the Hindu Religious Endowments Act. Panchapagesa Sastri, J., had dismissed that O.P. and held the temple in question to be a public temple under Section 9(12) of the Act for various reasons. The main ones were seven: firstly, there was no evidence to prove the contention of Mahadeva Gurukkal that the temple was founded by his ancestors; secondly, the evidence let in by the respondents showed conclusively that the Hindu public of that locality (the Kotwal Chavadi area) were worshipping in the temple as of right, without taking any permission from the petitioner or his predecessors-in-title; thirdly there were utsava vigrahams in the temple which were often taken out in procession for worship by the Hindu public, particularly during a big and important festival in Margazhi lasting for several days, fourthly, several ubhayams were performed in connection with the utsavams and these were performed by strangers, mainly merchants of the locality, at great expense, without any permission taken from the petitioner or his predecessors-in-title and the general public were also putting into the hundi kept outside the temple, by the Arshaka, several sums daily, aggregating to Rs. 2 to 4 per day; fifthly, the temple was not erected for the private worship of the petitioner or his family, as it was situated three miles away from his dwelling house, and was not being visited by his people, and none of his people were also residing in the temple premises or near about and the temple was clearly intended to be one for public religious worship; sixthly, it was recited in a document, Exhibit P-4, distinctly that Ayya Gurukkal and other predecessors-in-title of the petitioner, were merely trustees of Sri Vallabha Vinayagar Temple, having a right or turn of archakaship, which would indicate that they were merely entitled to be hereditary archakas and trustees, and not that they were the owners of the temple, as a private temple; and seventhly there was a presumption all over South India, except Malabar, that temples are public temples and that presumption had not been rebutted satisfactorily by evidence to the contrary, but had, on the other hand, been strengthened. The question of the ownership of the other portions of the building in one room of which alone this temple was located, and of the adjoining bakery, was left open with the remark that they might be private property as the documents relating to partition and mortgage indicated. He confined his finding to the temple itself, which was admittedly located only in one room in the house property, No. 176, Anna Pillai Street.
2. We disposed of O.S. No. 47 of 1949, as early as 16th October, 1951. We confirmed the finding of Panchapagesa Sastri, J., regarding the temple being a public temple, falling within the scope of Section 9(12) of the Hindu Religious Endowments Act and left open the question regarding the ownership of the rest of the premises which consisted of the bakery, a shop and godowns, and dismissed the appeal with costs.
3. The appellant, Mahadeva Gurukkal, filed C.M.P. No. 1928 of 1955 for review of our judgment in O.S.A. No. 47 of 1949, alleging that new and important documents of which he was not aware till then had been discovered by him, and would have an important bearing on the decision in the appeal which would, in his opinion, be reversed by us, and the temple held to be not a public temple falling within the scope of Section 9(12) of the Act, in view of these new documents, which he could not discover till then in spite of the diligence.
4. The petition was strongly opposed by Mr. Vaidialingam, the learned advocate for the Commissioner for Hindu Religious and Charitable Endowments, as belated, and also on the ground these documents, could have been discovered, and filed, with due diligence even in the O.P. and were, in fact, known to the appellant long ago and were not filed because they were not of any importance for determining the points at issue, and that, in any event, these documents would not make the slightest difference to our decision, and so, the review petition should be dismissed.
5. Mr. Tyagarajan, the learned Counsel for the appellant, relied on a ruling of a Bench of this Court in Srinivasa Ayyangar v. The Official Assignee, Madras : AIR1927Mad641 and urged that, for granting a review on the ground of discovery of new evidence, the Court was not called upon to see that the evidence, if believed, would be conclusive, but had simply to be satisfied that the new evidence was, prima facie important and fit to be considered. We agreed with this view and allowed the new documents to be filed on terms. The new documents so relied on by Mr. Tyagarajan, for the appellant were marked as Exhibits P-12 to P-27. Then the learned Counsel on both sides addressed their arguments in the review application.
6. Mr. Tyagarajan, for the appellant, urged that, from the new documents filed now, it is clear that this temple was built by an ancestor of the appellant, one Subramania Gurukkal, at some time between 1779-1781, that is, before Exhibit P-13 which refers to this temple as Subramania Gurukkal Pillayar Pagoda, and that, thereafter it was referred to as a temple belonging to the family of Subramania Gurukkal and his descendants, and that the other portions of the building in which the temple was situated, and the bakery, the shop, the godowns, etc., were always treated as the absolute private property of these people, and had been partitioned, mortgaged, etc., though, regarding the temple, situated in one room, no partition was effected owing to physical impossibility and religious objection, and only murais or turns of pooja were fixed, though there was a division of the coconuts, betel and other offerings made by the worshippers and also of the proceeds of the hundi. He also urged that this joint right of temple management and pooja and sharing of the profits had been agitated in C.S. 102 of 1882 on the file of this Court, and judgment obtained, as would be clear from Exhibits P-17 to P-19, and that the matter was again agitated in this Court in C.S. No. 39 of 1896, as would be clear from Exhibit P-21; and that permission to repair the building, in which the temple was located had been taken from the Corporation in 1894, as would be clear from Exhibit P-20; and that there had been a usufructuary mortgage of one half of the bakery adjoining the temple, under Exhibits P-22 and P-23; and that the temple and the adjoining properties had been made the subject of a will in 1905 by Thambu Gurukkal the appellant's predecessor-in-title as would be clear from Exhibit P-27, and that his pooja murai had been sold, by Ayya Gurukkal, the son of the third wife of Thambu Gurukkal, to Meenakshi Ammal, the fourth wife of Thambu Gurukkal, in 1902, as would be clear from Exhibits P-24 to P-26. Mr. Tyagarajan urged that all these facts would nullify the finding of Panchapagesa Sastri, J., in the O.P. and our finding in the O.S. Appeal, that this temple was a ' temple ' under Section 9(12) of the Act, as it was based mainly on the fact that there was no evidence as to the foundation of the temple by the ancestors of the appellant, Mahadeva Gurukkal.
7. Mr. Vaidialingam, for the other side, urged that this argument was unsustainable, as only one of the seven reasons relied by Panchapagesa Sastri, J., and by us, had been affected by these new documents, and the other six reasons remain intact and as strong as ever. He also urged that the new documents would only show that the other portions of the building, in one room of which the temple is located and the adjoining shop, bakery and godowns might be the absolute property of the appellant and other Gurukkals, and might, at the most, necessitate a review of that portion of our judgment, leaving the question regarding the ownership of the other portions open, but certainly would not affect the portion of the judgment holding in favour of the public nature of the temple itself. Mr. Tyagarajan relied on certain observations in the Privy Council rulings in Koman Nair v. Achuthan Nair , and Babu Bhagavan Din v. Gir Har Swaroop (1940) 1 M.L.J. 1 : L.R. 67 LA. 1 : I.L.R. 15 Luck. 1, and urged that the origin of a temple as a private temple would be material for considering whether the temple at the time of O.P. No. 117 of 1948 was a 'temple' under Section 9(12) or not. The observations in Koman Nair v. Achuthan Nair , relied on run as follows:
Had there been any sufficient reasons 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 admission of the public in latter times, possibly owing to altered conditions, would affect the private character of the trusts.
The observations in Babu Bhagvan Din v. Gir Har Swaroop (1940) 1 M.L.J. 1 : (1939) L.R. 67 LA. 1 : I.L.R. 15 Luck. 1, relied on run as follows:
In these circumstances it is not enough, in their Lordships' opinion, to deprive the family of their private property to show that Hindus willing to worship have never been turned away, or even that the deity has acquired considerable popularity among Hindus of the locality, or among persons resorting to the annual mela. Worshippers are naturally welcome at a temple because of the offerings they bring and the repute they give to the idol: they do not have to be turned away on pain of forfeiture of the temple property as having become property belonging to a public trust. Facts and circumstances, in order to be accepted as sufficient proof of dedication of a temple as a public temple, must be considered in their historical setting in such a case as the present; and dedication to public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference, if made from the fact of user by the public, is hazardous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away and as worship generally implies offerings of some kind is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. Thus in Koman Nair v. Achuthan Nair the Board expressed itself as being slow to act on the mere fact of the public having been freely admitted to a temple. The value of the public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right.
8. Mr. Tyagarajan, therefore, urged that we should consider whether this temple would fall within the scope of Section 9(12) of the Act, after considering the historic setting, viz., that it began as a private temple and that the Hindu public was allowed to go and worship there as it would be contrary to the Hindu sentiment to turn them away, and it would be profitable to the appellant and his ancestors to allow them to visit the temple in large numbers with the much-valued offerings to be shared by the Gurukkals. Even after considering the whole matter in its historic setting, viz., the origin of this temple as a private temple built in or about 1780, by Subramania Gurukkal, the predecessor-in-title of the appellant, on a plot bought by him, we see no reason to review our decision that the temple in question had become by the time of the H.R.E. Board's order and the judgment of Panchapagesa. Sastri, J., in O.P. No. 117 of 1948, a public temple as defined in Section 9(12) of the Act.
9. It is obvious that a temple which began as a private temple may, in course of time, become a public temple by express or implied dedication, the latter being proved by use of the temple by the Hindu public as of right and without taking any permission from anyone. It must be noted that in Section 9(12) the word used before the phrase 'used as of right by the Hindu Community or a section thereof as a place of religious worship' is 'or' and not 'and' thereby, showing that express dedication is unnecessary to be proved where it is proved that the temple is used as of right by the Hindu Community or any section thereof. Mr. Tyagarajan urged that there must be proof that on some definite date the temple was dedicated to the public by the previous owners. We are of opinion that no such express dedication on a definite date need be proved, if it is proved beyond all doubt that the temple has been used as of right by the Hindu public as a place of religious worship without taking anybody's permission, leading to an irresistible inference of implied dedication.
10. Mr. Tyagarajan said that once private, the temple will continue to be private, unless there is proof of express dedication. We cannot agree. The law requires only the conditions stipulated under Section 9(12) to be satisfied before a temple is declared to be a public temple. Once those conditions are satisfied, the temple will be a public temple under Section 9(12), though those conditions must of course, be strictly proved. There is nothing in our law preventing a thing which began as a private property becoming public property later on. Thus, even a river situated within a zamindari and beginning as a private stream, becomes a public stream from the place where it becomes tidal and navigable, even though the zamindar has done nothing to expressly dedicate that river to the public. It has been observed in a decision of a Bench of this Court in Chakkarai Chetti v. Commissioner, Hindu Religious and Charitable Endowments, Madras (1955) 1 M.L.J. 503, to which one of us was a party:
Whatever might be the tests laid down in decisions pronounced prior to Act II of 1927, so far as the present dispute is concerned, the matter has to be clinched by the definition in Section 9(12), and, therefore, we do not propose to discuss, as the learned District Judge has done, the decisions which have no bearing upon the interpretation of the term.
11. It follows that the contention of Mr. Tyagarajan that, as the new documents got marked by him in this petition prove that this temple was built by an ancestor of the appellant as a private temple, and as no express dedication of the temple to the Hindu public has been proved, we should review and reverse our finding in the O.S. Appeal that this temple would fall within the scope of Section 9(12) and allow the appeal, and set aside the judgment of Panchapagesa Sastri, J., cannot be accepted.
12. Then Mr. Tyagarajan urged that there was no satisfactory proof that the public used this temple as a place of religious worship as of right, and that the main evidence regarding this was that of R.W. 4, Somasundara Gurukkal, an enemy of the appellant, motivated only by malice and enmity, and ready to speak to any lie in order to injure this appellant. Mr. Vaidialingam urged that this witness had been believed by Panchapagesa Sastri, J., who heard his evidence and observed his demeanour, and that the enmity was not proved and that even if proved, it would be irrelevant and that there were four other witnesses who had also spoken to the public worshipping at this temple, as of right and that even the appellant as P.W. 1, had to admit, in cross examination, that people who we at to worship at the temple did not obtain or require his permission or of anyone else. We agree with Mr. Vaidialingam. Enmity or malice is of little account in most civil actions. In fact, some civil actions are started only by private enemies. The evidence on record conclusively proves that the Hindu public have been using this temple as a place of public religious worship as of right, thereby making Section 9(12) applicable to the case.
13. Mr. Tyagarajan then urged that it was to the interest of the appellant and his ancestors to allow as many members of the Hindu public as would come there with or without permission, in order to get the maximum offerings, in money and in kind to be shared between the Gurukkals and that, indeed this temple was a kind of business concern started by the Gurukkals, whose business it is to officiate as archakas, and that therefore, the fact that members of the public flock to the temple without getting any permission from the Gurukkal would not make any difference and would not convert the private temple into a public temple. We are afraid that the argument is unsustainable. Whether an archaka by profession, like the appellant, has got a right to start a temple as a business concern, and invite the public to worship there and give him offerings and endowments, we need not decide in this petition or appeal. No decision has been shown to us by Mr. Tyagarajan recognizing such a right. He only urges that when an archaka can go from house to house and do worship to private deities, like siva pooja, etc., for his clients for remuneration, it would not make any difference in principle if, instead of going from house to house, he constructs a temple, and invites his clients or others to gather and get archana done by him there for a consideration. We feel that there may be a difference, though we do not want to decide the point now. But it is obvious that any such archaka starting a temple business, should take care that the public do not acquire a right to use the temple as a place of public worship as of right, and without his permission. Once the public acquire such a right it will become a 'temple' under Section 9(12) of the Act.
14. Mr. Tyagarajan then urged that even the other six reasons relied on by Panchapagesa Sastri, J., in the O.P. and by us in the O.S. Appeal, have been affected and nullified by the new documents materially. Mr. Vaidialingam denied this, and said that the other six factors remain intact despite the filing of these new documents. Mr. Tyagarajan urged that Panchapagesa Sastri, J., laid too much stress on the fact that this temple was situated three miles away from the dwelling house of the archakas. He relied on the decision of the Bench in Chakkarai Chetti's case (1955) 1 M.L.J. 503, where it was held that the temple need not be situated exactly in the dwelling house. But then, in that decision, it was remarked that though the temple was not exactly in the dwelling house, it was situated very near the family house of the trustees, and was easily available for private worship. That is not the case here. Mr. Tyagarajan then said that the reason for this is simple, viz., that the temple was not intended even at its origin for private worship by the family of the founder, as a kind of family chapel, but only as a kind of temple business for getting the public to resort to it and do archanas and make offerings and pay. As already stated, we have not come across any decision recognising the legality of such temple business. The observation of Varadachariar, J., in Narayanan v. H.R.E. Board, Madras : AIR1938Mad211 , that a private temple cannot be outside the dwelling house of the family will apply, though, of course, in view of the ruling in Chakkarai Chetti's case (1955) 1 M.L.J. 503, it need not be exactly in the dwelling house and may be very near it.
15. Mr. Tyagarajan then urged that this temple was located in a single room and had no gopuram, dhwajsthambam, circumambulatory path or other usual paraphernalia associated with public temples, and that it could therefore never be a public temple under Section 9(12). He said that this has been made clear by the new documents filed. We are of the opinion that this fact was clear even before the new documents were filed and will not make any difference to our finding regarding this temple being a public temple, as Mr. Vaidialingam rightly urged. In Chakkarai Chetti's case (1955) 1 M.L.J. 503 it was held that the question whether a temple can be used as of right by the public cannot be determined by the nature of the building and the opulence with which the same has been furnished. So this contention also fails.
16. The next contention of Mr. Tyagarajan was that the mere taking of offerings from the public in kind or in money, or for ubhayams, cannot be safe criterion to declare a temple a public temple under Section 9(12) in view of the observations of the Privy Council quoted above regarding the inviting of offerings and the observations of the Bench in Chakkarai Chetti's case (1955) 1 M.L.J. 503, delivered after our judgment in the O.S. Appeal, that a stray instance of a gift from a testator cannot convert what was originally a private institution into a public temple. The argument is unsustainable in the light of the facts in this case, where it has been proved beyond all doubt that the Hindu public use this temple as a place of religious worship as of right. The offerings could be invited and accepted, even if that were legal, only from such members of the public as were invited or permitted before they were admitted to the temple. As already stated, we are of opinion that this would be so, even if the right to run a temple business urged by Mr. Tyagarajan, is legal and permissible. In Chakkarai Chetti's case (1955) 1 M.L.J. 503, it was only a stray instance of gift from the testator, and the public did not contribute to the utsavams, the family being proved to have exclusively financed the utsavams. But, here, there were several ubhayamdars who were doing the ubhayams for several days in the year spending Rs. 130-140 or so far each ubhayam, like R.W. 1 who was not shaken at all in cross-examination. It was also in evidence that 1000 to 1500 people were going to this temple every day, several of them putting money in the hundi kept outside. The appellant, P.W. 1 himself had to admit that the hundi collections would come to Rs. 2 to 4 per day. So, the observations in Chakkarai Chetti's case (1955) 1 M.L.J. 503, even if it can be applied to earlier judgments, will certainly not help the appellant in this case.
17. Then Mr. Tyagarajan urged that the existence of utsava vigrahams in this temple and their being taken out in procession for the worship of the public would not make the temple a public temple under Section 9(12) as held by Raghava Rao, J., in The Commissioner of the Hindu Religious and Charitable Endowments, Madras v. Gangamma : AIR1953Mad950 , following earlier rulings, in view of the observations of a Bench of this Court consisting of Rajamannar, C.J., and Venkatarama Ayyar, J., in H.R.E. Board, Madras v. Deivanai Ammal (1953) 66 L.W. 1020, delivered after the judgment in this O.S. Appeal. But that is only one circumstance relied on by Panchapagesa Sastri, J., and by us, and the Bench decision relied on by Mr. Tygarajan does not take away altogether the force of that circumstance but only wants it to be considered in the context of each case. There is no doubt whatever in our minds that our decision in the O.S. Appeal holding this temple to be a public temple, within the definition of Section 9(12) of the Act does not require to be reviewed.
18. Then Mr. Tyagarajan urged that, at any rate, our judgment in the O.S. Appeal may be reviewed by holding all the other portions of the building in which this temple is located, and the adjoining bakery, to be the absolute private property of the appellant and the other Gurukkals, who are entitled to be the hereditary trustees and the hereditary archakas of this temple, in view of the new documents let in. Mr. Vaidialingam conceded that the new documents might prove the absolute title of the appellant and the other archakas to the other portions of the building in which the temple is situated and to the bakery adjoining it and also the right of the appellant and other Gurukkals to the hereditary trusteeship and archakaship of this temple. But he urged that it was not necessary to review our judgment in the appeal even in this respect, as the matter regarding the hereditary trusteeship is pending in the City Civil Court, and the matter regarding the hereditary archakaship and the ownership of the other portions of the building in which the shop and godowns are located, and the bakery, might be left open to be decided in appropriate future proceedings. Mr. Tyagarajan urged that the appellant was a very poor man who could not afford to fight the Commissioner of the Hindu Religious and Charitable Endowments, who could declare the bakery and the adjoining portions of the building in which the temple is situated, to appertain to the temple by a mere order in writing and harm the appellant beyond redemption by driving him to Courts with all the ruinous litigation it means. We are of opinion that, as the new documents have proved beyond all doubt what Panchapagesa Sastri, J., and we already suspected was the fact, viz., that the adjoining portions of the building in which the temple is situated and the adjoining bakery are the absolute property of the appellant and the other archakas entitled, we do not want to leave the matter open, as we did before owing to the inconclusive evidence then on record. We review our judgment in the appeal in that respect alone, and declare the adjoining portions of the building in which the temple is situated, and the adjoining bakery to be the absolute private property of the appellant and the other archakas if any entitled and also declare the appellant and the other Gurukkals if any entitled to be the hereditary trustees and archakas of the temple, and refuse to review it regarding the finding that this temple is a public temple, under Section 9(12). We are informed that the room in which the temple is located is easily capable of being demarcated from the rest of the building. So, no possible difficulty can arise by declaring the temple a public temple and rest of the building and the bakery to be the private property of the appellant and the other Gurukkals, if any.
19. In the peculiar circumstances, we direct all the parties to this review petition to bear their own costs.