R. Sadasivam, J.
1. Appellants are defendants 1 to 3 in O.S.No. 20 of 1961, on the file of the Subordinate Judge's Court, Nagercoil, and their appeal is against the decree and judgment in the suit allowing the claim of the first respondent-plaintiff ordering their removal from the management of the suit trust, directing them to account for the trust funds in respect of their half share and ordering a scheme to be framed for the suit trust. The first respondent-plaintiff Sankaranarayana Pillai died during the pendency of the appeal and his legal representatives have been added as parties.
2. Sankaranarayana Pillai filed the suit in the lower Court on the basis that the suit properties belonged to a private family trust and they were endowed in the name of the family idol called Chona Mariyadumperumal Marthanda Vinayakar by one Chona Mariyadumperumal who was the original ancestor of the family in which the plaintiff and defendants 1 to 3 are members. The other defendants are the alienees from defendants 1 to 3. The case of the appellants in the lower Court was that the suit properties were family properties and that they merely stood in the name of Chona Mariyadumperumal benami for the family. According to them, the properties were not dedicated to Chona Mariyadumperumal Marthanda Vinayakar or the temple. The learned Subordinate Judge, has found on a consideration of the entire evidence in the case that the suit properties are the private family trust properties and that the plaintiff and the first defendant were each entitled to joint rights in the management of the same.
3. Sri R. Ramamurti Iyer, appearing for the appellants, made no attempt to support the claim of the appellants put forward in the; lower Court that the suit properties are the family properties of the appellants. There is no doucment to evidence the dedication of the suit properties in favour of Mariyadumperumal Marthanda Vinayakar. But the pattas for the suit properties are in favour of the deity. In fact, the appellants have dealt with the suit properties as belonging to Marthanda Vinayakar. There is now no dispute either about the fact that the suit properties were endowed by Chona Mariyadumperumal, the ancestor of the appellants and the deceased plaintiff or the fact that it is the appellants and the deceased plaintiff who were in joint management of the suit properties as trust properties.
4. The only contention urged by Sri R. Ramamurthi Iyer on behalf of the appellants is that the suit temple is a public temple and that the suit trust is therefore a public trust. He relied on the plea raised in paragraph 22 of the Written statement of the first defendant which reads as follows:
The trust alleged if any is having the characteristic of a public trust as they relate to a temple in a public place where all Hindus have the right to worship. The suit is also not maintainable and is barred by Section 92 of the Civil Procedure Code and the provisions of the Hindu Religious Endowments Act.
He commented on the fact that the learned Subordinate Judge has dealt with this plea in a summary manner in dealing with issue 14 in paragraph 30 of his judgment. But as rightly urged by the learned Advocate for the contesting respondents, there was no plea in the lower Court that the suit temple is a public temple and the contest in the lower Court was only about the claim of the appellants that the suit properties belonged to their family as against the claim of the first respondent-plaintiff that the suit properties were private family trust properties.
5. In paragraph 3 of the plaint it is clearly alleged that the plaint properties belong to a private family trust and that they were endowed in the name of the family idol called Chona Mariyadumperumal Marthanda Vinayakar. There is no plea in the written statements of any of the defendants that the suit temple is a public temple. We have already referred to the plea of the first defendant in his written statement that though the properties stand in the name of Marthanda Vinayakar, the idol was only a benamidar for his family. In paragraph 5 of his written statement, the first defendant has stated that as for worship any Hindu is entitled to worship in the temple. We have already referred to the averments in paragraph 22 of the written statement of the first defendant that the trust is having the characteristic of a public trust as it relates to a temple in a public place where all Hindus have a right to worship. Defendants 5 and 6 have pleaded in their written statement that Chona Mariyadumperumal Marthanda Vinayakar is the family deity of the family of defendants 1 to 3. Defendants 7, 10, 13 and 30 have pleaded in paragraph 5 of their written statement that all the Hindus are entitled to worship in the temple. Thus there is no specific plea in the written statements that the suit temple is a public temple and no issue has been framed, whether the suit temple is a public temple, as no such plea was raised by any of the defendants. It is only in the grounds of appeal the appellants have come forward with the case that the suit temple is a public temple and Sri R. Ramamurthi Iyer argued Only that question.
6. We have to mention at the outset that there is no presumption that the suit temple is a public or a private temple. In V.K. Kelu v. C.S. Sivarama Pattar : AIR1928Mad879 , it has been held that there is no presumption of law or fact that a temple in Malabar is either public or private, and that it will depend on the facts proved in each case. This decision was approved by the Privy Council in Mundancheri v. Achuthan . It has been held in the Privy Council decision that in the greater part of the Madras Presidency where private temples are practically unknown, the presumption is that temples and their endowments form public charitable trusts, but that no such presumption exists in case of temples situated in Malabar. This decision was followed by a Bench of this Court in Appeal No. 385 of 1957.
7. In the Bench decision in Appeal No. 385 of 1957, it has been pointed out that no useful purpose would be served in reviewing all the authorities because when we can deduce the working principle, the application of that principle would certainly vary with the facts of each case and it is the facts of the particular case where should decide whether the particular temple involved in that litigation is a public temple or not. On a consideration of' the ' numerous circumstances' pointed in that decision, it was held that the temple, in that litigation was a public temple. Sri R. Ramamurti Iyer referred to some of the circumstances existing in this case, which are also found in that judgment, and argued that the suit temple is a public temple. Thus he referred to the facts, that the plaintiff has his own private temple in his own place Kulasekarapuram, that the suit temple is in a different place Myladi ,which is a mile from his place, and is not located in the family house, that there is a poojari P.W. Venkitachalam Iyer for the suit temple, that besides Vinayakar there are also idols of Siva and Sivakami, that the idols are stone idols fixed to the earth and that the public worship in the temple. Though no one has spoken to the fact that stone idols are fixed to the earth, it is clear from the evidence of the plaintiff and the priest P.W. 6, that Ashatabandanam ceremony was done in the temple for fixing the idols which had become shaky. It is true the above circumstances are relevant in deciding the question whether the suit temple is a public temple. But they have to be taken into consideration along with the other facts and circumstances of the case.
8. We have already referred to the fact that there were numerous circumstances in the Bench decision in Appeal No. 385 of 1957 to show that the temple in that case was a public temple, as evident from the following passage;
The facts established are (1) The suit temple is situate outside the dwelling house of the members of the tarwad : in this case at a distance of 2 furlongs from the tarward house. (2) The presiding deity is a stone idol fixed to the ground. (3) Other copper idols including Utsava Moorthies are kept in the temple. 4) A regular hierarchy of temple servants has been provided for both for purpose of the worship and other ancillary services to be performed in the temple. (5) From time immemorial the general Hindu public of the village have been worshipping the deity in this temple. (6) Offerings are made by such worshippers in the shape of Vazhipadus. (7) Utsavams are conducted in the temple and deities are taken out in procession during such celebrations and worshippers offer what is called Thirukancharthu when deities are so taken out. (8) All the properties owned by the deity stand registered in the name of the deity and not in the name of any member of the family. This applies not only to properties registered in the name of the Vinayagar temple in Theroor but also to the two other temples, one at Marayankulam and the other at Tiruchendur,. (9) The object of the endowment, in this case comprises not only of the worship of the deities but also feeding of brahmins on Dwadasi and Thiruvathira days and on Thirukarthikai days in the month of Karthikai and the feeding of all Hindus on the Thiruvathira day in the month of Markazhi(10) Two images of village deities, one called Pulimadan and the other called Maruthachi Amman are found embedded in the walls of the temple near the entrance and there is evidence to show that these deities are worshipped by the villagers by celebrating what is called Kodai and the expenses for such celebrations are met by the villagers by subscriptions raised from among themselves. In addition to these circumstances Mr. Ramamurthi Ayyar stressed before us the following points. He said that the temple was founded more than 300 years ago by the side of a public tank in a place which is Very convenient to the members of the public for purposes of worship. In addition he also brought to our notice the existence of a stone inscription Exhibit L embedded in the wall of the temple giving the history of the foundation of this temple and the Dhittam for the purpose of the various service in the temple.
9. It is relevant at this stage to refer to the Bench decision in Madras H.R.E. Board v. Deivanai Ammal : AIR1954Mad482 where Sri Veda Vinayakar Temple at No. 187, China Bazaar Road, Madras, was held to be a private temple in spite of the following broad features on which the Madras Hindu Religious Endowments Board relied.
(1) that when this temple was built in 1919 kumbhabhishekam was performed on a grand scale; (2) the respondent also made utsava murties and built chaprams, and the deities Were also take in procession on some special occasions; (3) or a Gurukkal has been engaged to perform the puja regularly; and, (4) the temple has got a gopuram and other features which are usually found in a public temple.
In Deoki Nandan v. Murlidhar : 1SCR756 , the Supreme Court held that a religious endowment must be held to be private or public, according to the beneficiaries; thereunder are specific persons or the general public or sections thereof. On a consideration of the will of the founder, the user of the temple by the public, the ceremonies relating to the dedication and other facts relating to the character of the suit, temple, it was held in that case that the Thakurdwara of Sri Radhakrishnaji in Bhadesia was a public temple.
10. We have already referred to the pleadings in this case that there is no specific plea that the suit temple is a public temple. The plaintiff examined. Himself as P.W. 1 and he has stated that the suit properties are trust properties of Chona Mariyadumperumal Marthanda Vinayakar and the trust is a private family trust founded by his ancestor Sri Chona Mariyadumperumal. It is clear from his evidence that he and the appellants alone managed and 'spent for the temple. He stated that no idol in the temple Was taken in procession. According to him, poojas are offered in the temple. The evidence of the first defendant is that he alone spent for the temple from the income of the suit properties. There is no evidence in this case that anyone other than the appellants and the plaintiff spent for the temple. We have already referred to the fact that there is no document evidencing the dedication of the suit properties to Marthanda Vinayakar. In fact, the claim of the appellants that the suit properties belonged to their family and that Marthanda Vinayakar was only a benamidar belies their contention' that the suit temple is a public temple. The suit temple has no other income apart from the income from the suit properties. D.W. 1 Subramania Pillai the 23rd defendant in the suit, stated in his evidence that the suit temple is a family temple of the first defendant and that the first defendant's family alone has a right over the temple. D.W. 2 Bhagavathiperumal is the 22nd defendant in the suit. He also stated that the suit temple is a temple of the first defendant. D.W. 6 is the son of Arunachalam Pillai shown in the genealogy table in the judgment. He also stated that the plaint temple belongs to the family of the first defendant. He clearly stated that the temple was founded by his ancestors and that nobody had endowed any property to the deity. The facts that besides the idol of Marthanda Vinayakar there are idols of Siva and Sivakami, that the idols are stone idols fixed to the earth , that there is a poojari for the temple and that the temple is located, in a different, place from the residence of the parties cannot make the temple a public temple unless the founder intended the public to be the beneficiaries and wanted the temple to be a public temple. It is true P.W. 2 admitted in cross-examination that there are crowds daily in the temple. There is also the evidence of the defence witnesses that the public worship at the temple. Thus, D.W. 1. stated that people from Marthandapuram attend the temple. D.W. 2 stated that many people come to the temple. But his evidence is that the suit temple is a private temple. Further the evidence does not show that the public worship at the temple as of right. It is pointed out in the Privy Council decision in Mundacherri v. Achuthan , that
Had there been any sufficient reason for holding that these temples and their endowment were originally dedicated for the tarwad, and so were public trusts their. Lordships would have; been slow to hold that the admission of the public in later times possibly owing to altered conditions would affect the private character of the trusts.
The ordinary Hindu sentiment is not to prohibit any worshipper from worshipping in a temple even though a, temple was founded mainly for the wordship of the members of the family of the founder. The decision on the question whether the suit temple is a public temple or a private temple really depends on the inference to be drawn from the relevant facts and circumstances referred to above. On a consideration of the entire evidence in this case, we have, no doubt that the suit temple is a private temple of the family of the founder Chona Mariyadumperumal, the original ancestor of the appellants and the plaintiff.
11. In view of the above finding, it is really unnecessary to consider the question whether the suit is barred under Section 92, Civil Procedure Code, or Section 108 of the Madras Hindu Religious and Charitable Endowments Act, 1959. If the suit trust is in respect of a public temple as contended by the appellants,' Section 92, Civil Procedure Code, cannot apply in view of Sub-section (2) of that section. In fact Section 108 of the Madras Hindu Religious and Charitable Endowments Act, 1959, provides as follows:
No suit or other legal proceedings in respect of the administration or management of a religious institution or any other matter Or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of law, except under, and in conformity with, the provisions of this Act.
Some of the reliefs claimed in this suit, namely, the removal of the appellants from trusteeship and framing a scheme will clearly fall under Section 64 of Madras Hindu Religious and Charitable Endowment Act XXII of 1959. The learned Advocate for the contesting respondents relied on the decision in S. K. Mitra v. H. C. Dey , where it has been held That the fact that some of the reliefs cannot be granted because of the non-compliance of the provisions of Section 92 of the Civil Procedure Code cannot disentitle the, plaintiff to get other reliefs, which can well be claimed in an ordinary suit. It has been pointed put in that case that the reliefs claimed in the suit and concerned in the lease granted by the trustees in that case are substantial and that the case in respect of the same is clearly distinct and separate from the rest of the reliefs claimed which required sanction under Sections 92, Civil Procedure Code. In Ranchhodass v. Mahalaxmi Vehuji : AIR1953Bom153 , it was held that a suit for a declaration that the property in suit belongs to a public trust of a religious and charitable character did not fall within the mischief of Section 92, Civil Procedure Code. It was pointed out that in substance that was a suit for possession of the trust properties and the claim for possession was made against the alienees and that such a suit was, obviously outside the purview of Section 92, Civil Procedure Code. In Bishwanath v. Radha Ballabhiji (1967) 2 S.C.J. 331 : A.I.R. 1967 S.C the Supreme Court has held that a suit filed by an idol for declaration of its title and possession of property from a person who is in possession thereof under a void alienation, being only in the nature of enforcement of a private right by the idol and not being for any one of the reliefs found in Section 92 of the Code of Civil Procedure, falls outside its purview, and is not barred. It has also been held that when such an alienation has been effected by the shebait, acting adversely to the interests of the idol, even a worshipper can file the suits, the reason being that the idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest.
12. In V. L. N. S. Temple v. I. Pattabkiram : 1SCR280 , the Supreme Court, has held that a suit for rendition of accounts by the present trustee against ex-trustee is not barred by Section 93 of the Madras Hindu Religious and Charitable Endowments Act, 1951, which corresponds to Section 108 of the Madras Act XXIX of 1959.
13. Relying on the above decisions, the learned Advocate for the contesting respondents dents urged that, even if the contention of the learned Advocate for the appellants that the suit temple is a public temple is accepted, the entire suit should not be dismissed and that the decree and judgment of the lower Court should be confirmed in so far as it directed the alienees to deliver possession of the suit properties to the plaintiff, who was one of the trustees entitled to manage the suit temple. Though we entirely agree with this contention, it is unnecessary to discuss it in detail in view of our finding that the suit temple is. a private, temple and that the suit properties are the private family trust properties as pleaded in the plaint.
14. The decree and judgment of the lower Court and correct and they are confirmed and the appeal is dismissed with the costs of the contesting respondents (L.Rs. of the deceased plaintiff).