Govinda Menon, J.
1. My learned brother has dealt with the historical aspect and mythological tradition of the institution in question and I do not propose to traverse the same over again for in my view, how the temple came into existence cannot be ascertained with any degree of exactitude from the mass of material most of which is mythological and is not founded on concrete facts which can be tested in the light of actuality. What we have to ascertain is whether the famous Sri Krishna temple at Udipi which is held in great reverence and sanctity not only by the followers of Madhvachariar throughout the whole of India but by all the pious Hindus, can be held to be a public temple as defined in Sub-section (2) of Section 2 of Act V of 1947. Exhibit B-6 is the plan of Shiyali village which shows that the temple building of Sri Krishna is on the west of Madhva Sarovar, the holy tank, and is approached by a gate from the southern side. Divided by a road from Sri Krishna temple are the temples of Sri Chandramouleswara and Sri Anantheswara which are surrounded on all sides by streets. The Astha mutts are scattered all round these temples, the Sirur mutt being the nearest to the Sri Krishna temple. What is urged before us is that the idol of Sri Krishna is installed in a mutt, the management of which is being carried on by each of the Swamijis of the Ashta mutts for two years in rotation within a period of sixteen years and as such the institution in which the idol of Sri Krishna has been consecrated by Madhvachariar must be held to be the central mutt just like the other eight mutts and that in every matter it should be deemed to be of the same pattern as the other mutts. If that is so, in view of the recent decisions of the Supreme Court in The Commissioner of Hindu Religious Endowments, Madras v. Sirur Mutt (1954) 1 M.L.J. 596 : (1954) S.C.J. 335 (S.C.), the temple in question will be a denominational institution which cannot be called a public temple. In the District Manual of South Kanara by Mr. Sturrock of the Indian Civil Service we find that this institution is described as a temple of hoary antiquity held in great reverence not only by the disciples of Madhvachariar but also by all the Hindus. In the Judgment in The Commissioner of Hindu Religious Endowments, Madras v. Sirur Mutt (1954) 1 M.L.J. 596 : (1954) S.C.J. 335 (S.C.), Mukherjea, J., describes this temple as an ancient religious institution known as Shri Krishna Devara Mutt established by Madhvacharya which is supposed to contain an image of God Sri Krishna originally made by Arjuna and miraculously obtained from a vessel wrecked at the coast of Tuluva. His Lordship later on states how the management of this mutt is being carried on by the superiors of the other eight mutts by turns; the custom is that the Swamiji of each of these eight mutts presides over Sri Krishna Mutt in turn for a period of two years in every sixteen years, the appointed time of change in the headship of the Sri Krishna Mutt is called Pariyayam and the Swamiji who takes over the management of the affairs of the mutt is called the Pariyaya Swami for the time being.
2. The contention put forward on behalf of the appellants is that there is no distinction between the abode of Lord Krishna which is the subject-matter of the present dispute and each of the other Ashta mutts in regard to their nature and with respect to the application of the Hindu Religious Endowments Act. If this institution partakes of the same legal characteristics as those of the other mutts, then according to the arguments of learned Counsel for the Appellants the Madras Temple Entry Authorisation Act cannot be made applicable.
3. The question, therefore, is whether the institution is a mutt or a temple. One may concede that the temple is situated within the precincts of the mutt but that circumstance would not detract from the public character of the temple if it is established that there is unfettered public religious worship in the temple. It may be that the other buildings around the temple are used as residences of the Swamijis and for various other purposes connected with the Pariyayam ceremony and they cannot be termed public institutions; but which portions appertain to the temple and which to the mutt cannot be ascertained with any degree of precision in this litigation. All that we are called upon to decide is whether the building in which the image of Sri Krishna is installed and worshipped is one which is a public temple or not, and if it is a temple as defined in the Madras Temple Entry Authorisation Act of 1947, the decision of the lower Court is correct.
4. For that purpose it is necessary to refer to the provisions of the Madras Act V of 1947 and its amendment by Act XIII of 1949. The Preamble to the Act V of 1947 is as follows:
An Act to authorise entry into Hindu temples in the Province of Madras and the offer of worship therein by certain classes of Hindus who by custom or usage are excluded from such entry and worship. Whereas it is the policy of the Provincial Government to remove the disabilities imposed by custom or usage on certain classes of Hindus against entry into Hindu temples in the province which are open to the general Hindu public and whereas the Provincial Government are satisfied from the rapidity with which under pressure of Hindu public opinion a number of temples have been thrown open to those classes of Hindus in recent months, under the provisions of the Madras Temple Entry Authorisation and Indemnity Act, 1939, that the time has now arrived for throwing open to such classes of Hindus all the temples in the province which are open to the general Hindu public. And whereas the Provincial Government consider that the provisions of the said Act are inadequate for the early and complete implementation of the Policy of the Provincial Government aforesaid it is hereby enacted as follows:
The Preamble to the Madras Act V of 1947 as amended by the Madras Act XIII of 1949 is as follows:
An Act to authorise entry into Hindu temples in the Province of Madras and the offer of worship therein by all classes of Hindus. Whereas it is the policy of the Provincial Government to remove the disabilities imposed on certain classes of Hindus against the entry into Hindu temples in the province and whereas the Provincial Government are satisfied from the rapidity with which under pressure of Hindu public opinion, a number of temples have been thrown open to certain classes of Hindus in recent months, under the provisions of the Madras Temple Entry Authorisation and Indemnity Act, 1939, that the time has now arrived for throwing open to all classes of Hindus every Hindu temple in the province, and whereas the Provincial Government consider that the provisions of the said Act are inadequate for the early and complete implementation of the policy of the Provincial Government aforesaid it is hereby enacted as follows:
This would show that the Act as originally passed provided for the entry of all Hindus into the temples in the State which are open only to the Hindus in general and by the amending Act XIII of 1949 it was applicable even to institutions belonging to certain sections of classes of Hindus which are also temples as defined in subsection (1) of Section 2 of Act V of 1947 and its amendment by the Madras Act XIII of 1949 makes it clear. In Act V of 1947 temple is defined as follows:
Temple means a place, by whatever name known which is dedicated to, or for the benefit of, or used as of right by, the Hindu community in general as a place of public religious worship and includes subsidiary shrines and mandapams attached to such place;
by the Amending Act XIII of 1949 this Sub-section (2) was changed into Sub-section (1) of Section 2 and the amended definition of the word 'temple' runs as follows:
Temple means a place by whatever name known which is dedicated to or for the benefit of or used as of right by the Hindu community or any section thereof as a place of public religious worship and includes subsidiary shrines and mandapams attached to such place.
So denominational temples and temples belonging to sections of the Hindu community are brought within the ambit of the definition by the amendment. Consequent amendments to the other sections had necessarily to follow and by Section 4 of the Act power is given to the trustee to make regulations' for the maintenance of order and decorum in the temple and the due observance of the religious rites and ceremonies performed in the temple but such regulations shall not discriminate in any way against any Hindu on the ground that he belongs to a particular caste or sect. Section 7 prescribes penalties against whoever prevents a Hindu from exercising any right conferred by the said Act. Therefore even if the temple of Sri Krishna is a denominational one dedicated to, or for the benefit of, or is used as of right by a class among Hindu community or any section thereof as a place of public religious worship then it would come within the definition of 'temple'. On account of the amendment the dispute whether the temple is used as of right by the Hindu community in general or by a section thereof has become unimportant because even if the institution is a denominational one dedicated for use as of right by the Shivalli sect of followers of Madhvachariar still it is an institution which comes within the purview of the Act and therefore cannot be said to be a private institution.
5. Now after having noted the provisions of the Act regarding the definition of the temple it would be useful to refer to the manner in which this institution has been considered not only by authoritative authors on the subject but also in judicial pronouncement. In the text book 'Hindu and Muhammadan Endowments by P.R. Ganapathi Iyer (2nd edition), the author after narrating the tradition regarding the founding of the temple by Sri Madhvachariar states as follows at page 249:
In accordance with the rules laid down by the great teacher and founder the Swami (or head) of each of the eight mutts officiates as superior of the Krishna temple and performs the worship of the God for two years. (See Parliamentary Blue Book on Idolatry, page 162 and also the observations in Kasim Saiba v. Sudhindra Tirtha Swami I.L.R. (1895) Mad. 359.
It is not stated here that the building in which the idol of Sri Krishna is installed and worshipped is a mutt. In Vibhudapriya v. Lakshmindra (1927) 53 M.L.J. 196 : L.R. 54 IndAp 228 : I.L.R. 50 Mad. 497 (P.C.), their Lordships of the Privy Council after quoting extracts from the South Kanara Manual, published under the authority of Government describe the mode in which the Pariyaya Swami conducts the worship and carries on the management. They state as follows:
Besides these mutts there is a temple dedicated to Krishna one of the manifestations of Vishnu, perhaps the most popular deity forming the Hindu Triad. Admittedly it has no superior but the affairs of the Krishna temple are managed by the superiors of the eight mutts in turn.
6. From these observations of the Judicial Committee it is clear that the building in which the idol of Sri Krishna is installed was considered as a temple. The evidence of the heads of the various mutts who have acted as Pariyaya Swamis has been extracted. One of them describes the institution as a mutt of Sri Krishna with the annual income of about 500 muras of rice and Rs. 500 in cash from lands and besides this he has stated that it gets a total tasdick of Rs. 13,000 per annum; from the British Government and Mysore State. While referring to the institution this Swami used the expression mutt of Sri Krishna, while the superior of the Admar Mutt speaks thus:
Udipi Krishna temple has lands and also gets tasdik and these are got by the Pariyaya Swami for the time being.
He also states:
Those incomes are not sufficient for the expenses of the Pariyaya. The Pariyaya Swami also gets kanikam (offerings or presents) from votaries and pilgrims during the Pariyaya period.
At page 506 their Lordships refer to what is stated in the South Kanara Manual about the vast concourse of people that flock to the temple of Sri Krishna during the time of Pariyaya and the recurring expenses of the Pariyaya ceremony. From these observations the inference that is possible is that the institution in question was considered as a combination of both a temple and a mutt. That throughout the various judicial proceedings the place of the installation of Sri Krishna has been understood as a temple and not as a mutt is evident from the decision in Raghubushana v. Vidiavaridhi A.I.R. 1917 Mad. 809. That case related to the headship of a mutt known as the Bhimana Katta mutt who had been nominated to that office by the Pariyaya Swami and in the course of the judgment at pages 811-812 of Abdur Rahim, J., we note the following observations:
This is very well established by the evidence in regard to eight Udipi mutts which are grouped into twos with the dwandwa right existing inter se. Of these dwandwa mutts no one has authority of any sort over the other and it is only the Pariyaya Swami who being the custodian of the Sri Krishna temple has a certain superior authority over all the other eight mutts.
7. The life and teachings of Madhvacharya has been the subject of treatises by many disciples of his and one of the authoritative books on the subject is a treatise by Sri C.M. Padmanaba Achar, a member of the Coimbatore Bar, published in January, 1909. Chapter XIII of that book deals with Sri Madhvacharya's return to Udipi and the reforms he introduced there. It was during the course of his stay, there that the idol of Sri Krishna was obtained by him from a vessel coming from Dwaraka. Sri Madhva was sitting on the sands of the beach in meditation. While thus engaged, he opened his eyes and noticed that a ship laden with merchandise had got stranded on a sand bank and was in distress. All the skilled efforts of the sailors proved ineffective to redeem the vessel from the peril and it was drifting at the mercy of the waves. Sri Madhva who was rapt in meditation understood the distress of the unfortunate vessel and taking up his handkerchief, he waved it at the ship intending that she should float and sail to the shore. And sure enough the ship did float and sail and was soon beyond danger. The master of the ship approached the Guru with profound gratitude and begged of him to accept some return. Sri Madhva cared not for treasure but said; 'There are some clods of earth known as 'Gobichandan' in your vessel. Give me some pieces thereof. I am content.' The master of the ship overjoyed at the Guru's willingness to receive the Gobichandan brought to him the largest and the heaviest of the pieces used as ballast in the ship. While this clod of earth was being brought from the beach it broke in twain on the way and disclosed to view a magnificent image of Sri Bala Krishna holding a churning rod in one hand and a churning rope in the other. So according to tradition Sri Krishna had come from Dwaraka among the clods of the ship's ballast. The image thus miraculously obtained was taken to Udipi and washed at the tank known as Madhva Sarowar. When all the sticking pieces of earth were removed it is stated, that rays of effulgent light radiated from the image, by reason of the divine presence induced by Sri Madhva's touch. It is further stated that Sri Madhva ordered his attendants to carry the image to his mutt. They tried to lift it but it was too heavy and the image of Krishna remained immovable. Then Madhva himself lifted the image with great ease and carried it to his lodging which then was a mutt. After the image was installed by the ceremony known as prathistapana he built a small temple to enshrine the deity by getting charity. At page 140, the learned author observes thus:
To build a small temple and enshrine the deity therein was a labour of love soon accomplished. The purse strings of religious charity have never been tight in this country and Sri Madhva had no difficulty at all in finding the requisite funds. He did not desire to build a palatial edifice with towers and turrets as in Srirangam. He might have done so had he chosen, for, princes would have contributed for it. But he was bent on raising a simple shrine with none of the imposing triumphs of architectural show. Having installed Sri Krishna of the churning rod and rope in this little and simple temple Sri Madhva inaugurated and regulated the method and formulae of worship. He, codified the procedure in the minutest details and led the way by conducting the ritual of worship in person.
Then the author described the manner of worship and the routine observed in the temple and how Sri Madhva constituted himself into a poojari for the time being and laid down the procedure for the worship of Sri Krishna. A reading of this narrative would show that a temple was built and consecrated as the abode of Lord Krishna. Therefore tradition as well as history have clothed this institution with all indications of a temple and not that of a mutt where sanyasins live and meditate. There is also a description of Madhva in the Encyclopedia Britannica, at page 640 of volume 14, in the following manner:
The most important of the Madhva temples is the one at Udipi in South Kanara district with eight monasteries connected with it and this shrine contains the image of Krishna who is stated to have been rescued from the wreck of a ship, etc.
8. The pleadings and the evidence show that the institution had always been considered as a temple unlike the eight mutts. In the plaint itself in very many places the institution is described as a temple. For example in paragraph 7 the words used are Sri Krishna temple though in paragraph 9 it is stated that the Sri Krishna Mutt is only a shrine or chapel attached to the ancient mutt started by the teacher Sri Madhvacharya and that it is not a place of public worship nor has it any individual existence apart from the mutt. Throughout the body of the plaint the idea of considering the institution as a temple is prevalent. Vide paragraphs 11, 13 and 20 of the plaint. Even if the shrine had never been dedicated to the Hindu public at large still on the admission in the plaint it is clear that it is one which can be used as of right by a section of the community, namely, the disciples of Madhva.
9. Exhibit B-4 is the certified copy of the plaint in O.S. No. 1 of 1949 on the file of the District Judge of South Kanara a suit filed by the Swamiar of Palimar mutt against the Madras Hindu Religious Endowments Board for setting aside a scheme framed by the Hindu Religious Endowments Board. Paragraph 3 runs thus:
The eight mutts of Udipi of which the Palimar Mutt is one have been founded by the great religious preceptor Sri Madhvacharya for performance of religious worship, viniyogas and ceremonies in the respective mutts, for propagation of religious learning and dissemination of Madhva philosophy and in particular for managing the Sri Krishna mutt at Udipi, which is a temple of great sanctity and veneration to the entire Hindu community and which attracts a large concourse of pilgrims from all over India.
In describing this institution the plaintiff there who is the second defendant in the suit now under appeal and whose case is the same as that of the appellants, has admitted that the institution is a public temple of great sanctity and veneration. The documents filed in the case also show that there have been endowments to the institution from Ruling Princes and others. Exhibit A-4(a) is a sannad, dated 5th February, 1821, by Krishna Raja Wodeyar sanctioning 15 varahas per day as offerings to Sri Krishna Devaru. It is stated that it is a permanent feature and no fresh sannad need be given every year. Exhibit 8 is a photograph of the inscriptions in the institution which shows that in the Ananda year of Salivahan saka, 1530, for the performance of naivedya to Sri Krishna Devaru at Udipi and the lighting of Nanda Deepa before the deity every day during the time of puja a grant is made. The description of the deity in this document is Sri Krishna Devaru. Exhibit A-9 is a photograph of a similar inscription wherein we have the words 'Madyastha of the said temple'. It is stated that the 'public as well as the Madhyastha shall conduct these things at all times.' Exhibit A-10 is another photograph of the inscriptions in the mutt where also similar words are used. These are all grants either by chieftains or Ruling Princes or by pious persons of affluent circumstances to the temple. We have also the settlement register of the Shivalli village, Udipi taluq, extracts from which have been filed as Exhibits B-8 and B-9 which also reveal that the institution has been considered as a temple. In Exhibit B-8 against col. 13 there is a specific mention of the name of the Swamiyars of the different mutts but in Exhibit B-9 with regard to lands relating to the institution in question against the column,' Name of the pattadar or mulgenidar 'is entered,' Udipi Sri Krishna Devaru' which denotes only the temple. Exhibit B-10 is the Hand book of Udipi published at the instance of the Swamiars which is in the nature of a guide-book for the information of pilgrims resorting to the shrine and there we find the approximate annual income from the various governments noted. From the Madras Government the institution gets an annual tasdik of Rs. 8.400 from the Mysore Government Rs. 6,800 and from the Cochin Government Rs. 100. Besides these the institution gets an income of Rs. 727-8-0 from the Government lands at Chickamaganur, Dharwar district and Rs. 200 from the gut two lands, Chitaldrug district and 1.000 muras of paddy from mutt's lands. It is also mentioned in this book at pages 42-43 that in this institution Brahmopadesa, Anna Prasanam and Tulabara and other ceremonies are being performed. If it is a mutt it is not usual to have such kinds of ceremonies performed. One can therefore infer from the endowments made by the various Governments and munificent grants by private persons in the name of the deity and the performance of various aradhanas and ceremonies that the public do these ceremonies as a matter of right in the institution and the oral evidence in the case also points to the same conclusion.
10. P.W. 1 the Swamiyar of Bandarkere mutt and one of the disciples of Madhva in cross-examination had to admit that sevas are accepted from Madhvas or from others according to his pleasure. Pilgrims other than Madhvas also come. There are permanent sevas of different individuals endowed by them either in the shape of cash or properties and that during Lakshadeepa Utsava thousands of Madhvas and Non-Madhvas and Brahmins and Non-Brahmins attend the festival. A reading of the deposition of this witness can lead to only one conclusion and that is that there has been unfettered worship by all Hindus in general. P.W. 2 is the Swamiar(sic) Shirur mutt who is the 6th plaintiff in the suit and as such very much interested in the institution. In cross-examination he had to admit that Udipi Krishna Devaru is well known in India and that he knew of Brahmins coming from throughout India. He says that he does not know whether other people come there. Later on he says Brahmins who come to the temple from throughout India go round the temple (pradakshina) take theertha or prasada. At pooja time Arathi is offered to them. In front of the image there is a dabbi, money offerings are put in there; when Hindus get into the temple there is no system of asking for permission. So also no permission is asked for going round in pradakshina and for making money offerings in dabbi or for receiving prasadam, theertha or arathi; but, if the Swamiar chooses he can object. In cross-examination he admitted that he had not even a single letter in his possession asking for permission to go round the temple. He stated further that he does not remember of a single instance of a person asking for permission to come to the temple and that there was not even a single instance during his pariyaya when he prevented anybody entering the institution. According to usage all Brahmins and Non-Brahmins are allowed to worship in the institution and only the Billavas and Holeyas who belong to the depressed classes are not coming into the inner prakarams. When he was asked to state whether there were dabbis and sarvoras in the Ashta mutts he had to admit that no such things existed there. This shows the difference between the plaint institution and the other mutts. While the institution in question is a temple the other institutions are mutts strictly called. Witness also states:
All Hindus irrespective of caste and communities visit this place for worship. According to me this is an important kshetra for Hindus. Like the temples at Banaras, Thirupathi, Rameswara and at other places the suit institution also is an important place of pilgrimage for Hindus. Later on he deposes' I know of Mysore Yuvaraja having visited this place for worship. Similarly, High Court Judges and other important persons have taken darsan, paid kanikas and received prasadam
P.W. 3, a Professor of Sahitya in the Udipi Sanskrit College, admitted that pilgrims and devotees will have dharsan of Sri Krishna and they will have various kinds of poojas and archanas performed to Sri Krishna. He stated that during Lakshadeepa festival a huge concourse of people attend. P.W. 4 is a tantrik who has been tendering tantrik service in Puttur taluk and Mangalore in about 45 temples and he deposed that nobody takes permission of anybody for entering into premises or participating in the utsavas, and that except untouchables all others would go into the premises of the institution as a matter of course. According to him it is a sacred institution for Hindus and thousands of pilgrims congregate there.
11. As against these admissions of the witnesses on the side of the plaintiffs Mr. Nambiar, learned Counsel for the appellants, invited our attention to the fact that the system of poojas conducted in this particular institution is quite different from what obtains in temples of a similar nature. He pointed out that the fact that persons visiting the Pariyayam festival are fed and religious discourses are conducted show that the institution in question is more in the nature of a mutt rather than a temple, the abode of God. He further urged that the very fact that Swamis are interred within the compound of this institution is a sure indication that this cannot be a temple. But we have instances of temples in India having grown up over the samadhis or resting places of bodies of great saints and the fact that Swamiars when dead are buried in place adjacent to Sri Krishna temple will not detract from its nature as a temple. As I have stated already originally there was a mutt and subsequent to the installation of the image of Lord Krishna there by Sri Madhvacharya it has grown up by centuries of public worship into a public institution. The learned Subordinate Judge himself made a local inspection of the shrine in question and he is also of the same opinion.
12. Mr. Nambiar invited our attention to various passages at pages 326, 327, 328 and 329 from the Hindu Law of Religious and Charitable Trust by Mr. B.K. Mukherjea, a judge of the Supreme Court, to show that in mutts also a shrine or temple is ordinarily seen and therefore because there is a temple in the Krishna Mutt the institution should not be styled as a temple. At page 328 the learned author states that differences of vital nature exists between a mutt and a temple. Whereas the object of a temple is to perpetuate service or worship of an idol in a particular manner the deity being the recipient and holder of the benefaction the object of a mutt is propagation and strengthening of religious knowledge which might include the doctrine of a particular cult and this is done by the maintenance of a competent line of teachers. Viewed in this light what we have to ask is whether the predominant feature of the institution in question is service or worship of Lord Krishna or the propagation of religious knowledge of the system of philosophy as propounded by Sri Madhvacharya. The evidence in the case can point out to only one conclusion, namely, that large concourse of people who visit the institution during the various festivals and during Pariyayam do not go there for being enlightened in the religious teachings of a particular school of philosophy or doctrines of a particular cult but only with the sole object of worshipping Sri Krishna and obtaining His grace. It may also be mentioned that the place of worship is not a necessary part of a mutt as observed in Subraya v. Arundel I.L.R. (1883) Mad. 287, but a shrine or a temple may ordinarily be seen as an adjunct to a mutt. Can we say in the present case that the temple is a subordinate entity and that the mutt is a predominant one? The only answer that can be given is that the temple predominates. It is unnecessary to refer to passages in Mayne's Hindu Law, at page 960, to which our attention has been drawn as they do not carry the case of the appellants.
13. Lastly the learned Counsel for the appellants laid great stress on the observations of Sir John Rankin in Babu Bhagwandin v. Sir Har Saroop (1940) 1 M.L.J. 1 : L.R. 67 IndAp 1 : I.L.R. 15 Luck. 1 (P.C.), where their Lordships of the Privy Council had to consider the question whether a particular temple was dedicated for the benefit of the Hindu public or it was a private institution and they came to the conclusion.
the general effect of the evidence is that the family had treated the temple as a family property dividing the various forms of profit whether offerings or rents, closing it so as to exclude the public from worship, when marriage or other ceremonies require the attendance of the members of the family at its original home and erecting samadhis to the honour of its dead.
After coming to this conclusion Sir George Rankin expressed the following opinion:
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 the 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 the public is not 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 act 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 it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. Thus in Koman v. Achuthan Nair (1934) 67 M.L.J. 788 : L.R. 61 IndAp 405 : I.L.R. 58 Mad. 91 (P.C.), the Board expressed itself as being slow to act on the mere fact of public having been freely admitted to a temple. The value of public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right.
14. In my opinion these observations cannot apply to the facts of the present case. It is seen that the present institution is far famed throughout the length and breadth of India and that large concourse of people resort to this place of worship and there is nothing to show that the Swamiars have treated this institution as their private property or anything of the kind. The admissions of P.W. 2 as well as other witnesses point to the fact that the temple is one intended for the benefit of the public who resort to it for religious worship and that though the image of Sri Krishna was installed by Madhvacharya in his own residence or lodging subsequent course of conduct during the centuries have made this abode of Sri Krishna a public temple It is next argued that by reason of the decision of the Hindu Religious Endowments Board contained in Exhibit A-6 and A-7 it is not open to the Government to hold that the institution in question is a public temple. The argument is put in this way: There was a proceeding under Section 84 of the Hindu Religious Endowments Act (II of 1927) before the Hindu Religious Endowments Board in which the question decided was whether Sri Krishna Devaru temple, Shivalli, Udipi taluk, was a public temple as defined in the Madras Hindu Religious Endowments Act or was a place of public worship appurtenant to the Sri Krishna Devaru Mutt. In Section 9(12) of the Madras Act II of 1927, 'temple' is defined as follows:
Temple means a place by whatever designation known, used as a place of public religious worship and dedicated to or for the benefit of, or used as of right by the Hindu community or any section thereof as a place of religious worship.
15. The question that the Board had to consider under Section 84 of the Madras Act II of 1927 was whether the present institution was a temple as defined under Section 9(12) of the said Act. The Board held in Exhibit A-7 that Sri Krishna Devaru temple, Shivalli, Udipi taluk, South Kanara district, is not a temple as defined in the Madras Hindu Religious Endowments Act but is a place of worship appurtenant to the Sri Krishna Devaru Mutt but in Exhibit A-6 the annexure to Exhibit A-7 the reason for arriving at such a conclusion is given and that is akin to a judgment in a civil proceeding where we find the following statement:
Our decision that the institution is appurtenant to a mutt and forms part of it can in no way affect the rights of the deity to the properties owned by it and the rights of the Hindu public to worship direct subject to the regulations prescribed by the Pariyaya Swamiyar for the time being.
16. Mr. Nambiar contends that under Sub-clause (2) of Section 84 of the said Act any person affected by a decision under Sub-section (1) may within one year apply to the Court to modify or set aside such decision but subject to the result of such application the order of the Board shall be final and no such application having been made to the Court either to modify or set aside the order of the Board that Sri Krishna Devaru temple at Shivalli, Udipi, is not a temple as defined in the Madras Hindu Religious Endowments Act has become final under Sub-section (3) of Section 84. Lastly it was contended that the temple is an appurtenant to the mutt. We have already noticed the definition of the temple in Section 2 of the Act of 1947 as amended by the Madras Act XIII of 1949. That definition is exactly the same as the one contained in Section 9(12) of Act II of 1927. Therefore if the institution is not a temple as defined in Section 9(12) of the Madras Act II of 1927, learned Counsel for the appellants wants the Court to hold that it cannot be a temple as defined in Section 2(1) of Act V of 1947. It is further argued that under Section 103 of the Madras Act XIX of 1951 which replaced Act II of 1927 all decisions made or proceedings taken under the earlier Act shall have effect subject to the provisions of Clause (d) of the same section. Section 103(a) and (b) confirms and validates all proceedings taken and decisions made under Act II of 1927 as if they had been taken or made under Act XIX of 1951. Such being the case the point of view put forward is that as the temple in question is not one as defined in the Madras Act II of 1927 and as such could not also be one as defined in the subsequent Act namely, in Section 2(2) of Act V of 1947 a decision to that effect under Section 84 of Act II of 1927 would be binding under the provisions of Section 103 of Act XIX of 1951. The answer to this argument is contained in Exhibit A-6 itself where the decision that the temple is not one as defined in Act II of 1927 is circumscribed and restricted by the finding that the rights of Hindu public to worship direct subject to the regulations prescribed by the Pariyaya Swamiar for the time being are in no way affected. We have therefore to read the decretal order in Exhibit A-7. We can call it as such by referring to the judgment contained in Exhibit A-6. Reading these two documents together we find that there is no disharmony at all and it comes to this that though the temple in question is an appurtenant to a mutt as is clear from the origin of the temple the rights of the Hindu public to worship direct have been maintained by that decision. I may also note here that Rules have been framed under the Madras Temple Entry Authorisation Act (V of 1947) by the Government and they are intended for giving effect to the provisions of the enactment. According to these rules certain conditions have to be complied with for exercising the unrestricted right of worship in the temple. It is unnecessary to dwell on this aspect' at any length as nobody can worship in a temple if he does not conform to the rules framed under the Act.
17. The next contention that has to be considered is whether the Madras Act of 1947 is repugnant to the provisions of any of the Articles of the Constitution of India which by Article 17 abolishes 'untouchability' and lays down that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. To prevent certain classes of Hindus who were once called depressed classes from entering into a public temple is certainly to practice untouchability and therefore what is enacted in Act V of 1947 is only the fulfillment of the directive principle contained in Article 17 of the Constitution. In the glorious Preamble to the Constitution Fraternity and Unity of the nation are enshrined and one of the ways of bringing about this is by abolishing untouchability. Similar legislations have been passed by the other States as well; for example the Bombay Act XXXV of 1947 is intended to entitle the Harijans to enter and perform worship there in the temples of the Bombay State. The sections of that enactment though not exactly in pari materia contain the same sentiments and the definition of the word 'temple' is somewhat similar to the definition of the same word contained in the Madras Act. The Central Provinces and Berar Act XLI of the 1947 also authorises the Harijans and other classes of Hindus to enter into Hindu temples and worship therein who by custom and usage have been excluded. It is unnecessary to refer in any detail to the provisions of that Act because like the Bombay legislation that Act aims at effectuating the provisions of Article 17 of the Constitution. Thus it is seen that not only in Madras but also in other parts of the Indian Union we have similar enactments for removing the disabilities cast upon certain sections of the Hindu community by custom and usage. Article 35(b) of the Constitution lays down that any law in force immediately before the commencement of the Constitution in the territory of India with respect to any of the matters referred to in Sub-clause (1) of Clause (a) relating to fundamental rights or providing for punishment for any act referred to in Sub-clause (ii) of that clause shall subject to the terms thereof and to any adaptations and modifications that may be made therein under Article 372 continue in force until altered or repealed or amended by Parliament. Section 7 of Act V of 1947 deals with penalties for offences specified therein. It runs thus:
Whoever prevents a Hindu from exercising any right conferred by this Act or molests or obstructs a Hindu in the exercise of any such right shall be punishable, in the case of the first offence.
18. One of the rights conferred under the Act is the right of the excluded classes of the Hindu community to enter into temples and worship. Section 7 of Act V of 1947 refers to punishments for the offences contemplated in Article 17 of the Constitution. Thus the Madras Act V of 1947 comes within the provisions of Article 35, Clause (a)(ii) of the Constitution and this law is made to continue in force until repealed or amended by Parliament. In these circumstances there can be no doubt whatever that the Madras Act V of 1947 will be in force as good law until Parliament take up a comprehensive legislation. Viewed in that light the Madras Act V of 1947 will have full effect because it is in complete consonance with the provisions of the Constitution. The evidence of P.Ws. 2 and 4 that the untouchables are not allowed to enter into the temple in question would show that they are committing an offence if they prevent any untouchable from entering into the temple after the coming into force of the Madras Act V of 1947. The next argument put forward on behalf of the appellants is that Act V of 1947 is repugnant to Articles 25 and 25(b) of the Constitution. Sub-clause (b) of Article 26 lays down that subject to public order, morality and health every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion. So if we take it that the temple is one which belongs to a religious denomination, namely, the Shivalli Brahmins then it is urged that they have a right to manage the affairs of the temple in matters of religion. But we have already in referring to the amendment made by Act XIII of 1949 noticed the fact that under Sub-clause 2 of Section 3 as it stood then temples which were thrown open to the general Hindu public alone were thrown open to the so-called untouchables but by the Amending Act XIII of 1949 even denominational temples have been thrown open to such excluded classes of the Hindu community. The question is whether by enlarging the scope of the legislation by the Amending Act XIII of 1949 provisions of Clause (b) of Article 26 of the Constitution have in any way been infringed. It is clear that by Sub-clause 2(b) of Article 25 of the Constitution the State shall not be prevented from making any law for throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus and that freedom of conscience and the right freely to profess, practice and propagate religion shall not be affected by the operation of any existing law. According to the learned Counsel what is contemplated under Sub-clause 2(b) of Article 25 of the Constitution is that institutions of a public character can alone be thrown open to all classes and sections of Hindus. His contention is that this is made clear in Clause (b) of Article 26 which allows every religious denomination to manage its own affairs in matters of religion. What we have therefore, to consider is whether the prohibition of untouchables from entering into the denominational temples is a right of that denomination to manage its own affairs in matters of religion. It is argued that in America practice of religion is only belief in religion and not in rituals whereas in our country religion includes rituals as well and since temple entry is a religious ritual, interference with the right of a religious denomination to prevent a class of persons from entering into their temples is an infringement on their right to manage in matters of religions. Their Lordships of the Supreme Court in a recent case reported in Panchand Gandhi v. State of Bombay (1954) S.C.J. 480 at 486, relating to the Bombay Public Trust Act (XXIX of 1950) had to consider the effect of Article 26 of the Constitution and they refer to the dictum laid down by Latham, C.J., of the High Court of Australia in the case Adelaide Company v. Commonwealth 67 C.L.R. 116, where the extent of protection given to religious freedom by Section 116 of the Australian Constitution was discussed. They also refer to the case Jamshedji v. Soona Bai I.L.R. (1907) 33 Bom. 122, where also this matter came up for consideration. What is the right conferred under Article 26(b) is considered by the learned Judges at page 348 in Commissioner, H.R.E. Board, Madras v. Sirur Mutt (1954) 1 M.L.J. 596 : (1954) S.C.J. 335, and it is stated as follows:
It will be seen that besides the right to manage its own affairs in matters of religion, which is given by Clause (b) the next two clauses of Article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion.
What is a matter of religion is discussed at pages 348, 349, 350 and at 351. At page 351 it is observed as follows:
Under Article 26(b) therefore, a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies....
Nowhere does the Supreme Court say as is contended by Mr. Nambiar, that managing the affairs in matters of religion would give the denomination a right to prevent the Hindus of a particular class from worshipping in the temple. We cannot also forget the fact that the article begins by stating that the right to manage in matters of religion is subject to the public order, morality and health. It is certainly not moral to prevent pious Hindus from being allowed to enter the temple solely on the ground of their having been born in a particular community and it is this inequality that is sought to be removed by the provisions of Article 17 of the Constitution. I do not think that the power of the State to make a law for throwing open Hindu religious institutions of a public character as contemplated in Article 25(2)(b) is in any way circumscribed, restricted or whittled down by the provisions of Sub-clause (b) of Article 26 giving the religious denomination the right to manage its own affairs in matters of religion. No authority has been placed before the Court to show that it is a matter of religion to allow only particular classes of people to enter and worship in the temple. While Article 25 speaks of the right to freely profess and practise religion Article 26(b) relates to the right of the denomination to manage its affairs in matters of religion. The distinction between these two expressions is real. Managing the affairs in matters of religion denotes that there is a kind of superintendence or supervision mainly with regard to property but practice of religion would include the right to prescribe modes of worship, the class of persons who can worship and the time at which they can worship, etc. When, therefore, Article 26(b) speaks of the right to manage in matters of religion it seems to me that what is contemplated by that expression is something different from the right to practise religion. The expression 'practice of religion' is contained in Article 116 of the Australian Constitution and the observations of Latham, C.J., of the High Court of Australia have been quoted by the Judges of the Supreme Court at page 349 in the Commissioner, H.R.E. Board, Madras v. Sirur Mutt (1954) 1 M.L.J. 596 : (1954) S.C.J. 335.
19. Another way of looking at the question is by reading Articles 25 and 26 of the Constitution together and trying to understand the concept of the two articles in an harmonious manner. That the question of temple entry is not involved in Article 26(b) but concerned only in Article 25(2)(b) is clear from the fact that Article 25(2)(b) is an exception to Article 25(1) which gives fundamental right to any citizen freely to profess practice and propagate his religion. This freedom of practising religion can be restricted by the Legislature when it infringes with the right of all classes of Hindus to worship freely in a Hindu religious institution of a public character. So it is the concept of temple that is formulated to Article 25(2)(b). The dictionary meaning of the word 'manage' is 'govern a thing, command, or control or to conduct' and the meaning of 'affair' is a general business. So when a religious denomination is given a right to manage its own affairs in matters of religion what is contemplated is the business of managing property etc. and it can have no reference to depriving certain classes or sections of the Hindus of their fundamental right conferred unequivocally by Article 25(1) of the Constitution. Articles 26(c) and (d) cannot refer to it. There is no redundancy between Article 26(b) on the one hand and Articles 26(c) and (d) on the other. Whereas Article 26(b) is wider in its terms Article 26(c) and (d) relate only to movable and immovable properties.
20. In my view therefore there is no substance in the contention that the provisions of Madras Act V of 1947 are repugnant to those of Article 26(b) of the Constitution. These are the only points urged in this appeal. In the result the appeal fails and is accordingly dismissed with costs.
21. Ramaswami, J.-This is an appeal preferred against the decree and judgment of the learned Subordinate Judge of South Kanara in O.S. No. 166 of 1948.
22. The dispute in this case is whether the famous shrine of Sri Krishna in Udipi surrounded by the Ashta Matams is a public temple within the meaning of Act XIII of 1949, Section 2(1) or not.
23. In Udipi town which is 33 miles north of Mangalore, South Kanara District, there is a famous shrine of Sri Krishna which is frequented by pilgrims from all over India. It is most sacred to the sect of Madhwas and especially to the Thulu speaking Brahmins known as Shivalli Brahmins, Shivalli being a part of Udipi town. This Sri Krishna shrine and the Ashta Mutts surrounding it viz., Kaniyur, Sode, Puttige, Adwar, Pejavar, Palimar, Krishnapur and Sirur have undoubtedly been founded by the founder of the Madwas sect Sri Madhvachariar in the 12th century A.D.
24. The founder of the sect is Madhvachary also known as Ananda Tirtha Bhagavat Pada who is considered by his followers to be an incarnation of Vayu. He was a Brahmin, the son of Madiga Bhatta of Kenjaru, six miles from Udipi. His date of birth is given as Saka year 1121 (1199) A.D. The tradition is that he was educated in the convent establishment at Ananteswar and was initiated into the order of sanyasis by a scholar saint Achutha Parachara who belonged to the Adwaita school of Philosophy and who was at that time teaching Vedanta to his disciples in the temple of Ananteswar which adjoins the Sri Krishna temple. Sri Madhvacharya became dissatisfied with Sanskrit Vedantism and set up the banner of revolt. He set out on his peripatetic tours throughout India and held disputations with several scholars including the then head of the Adwaita Mutt at Sringeri. Thereafter he proclaimed his faith and published his most enduring work, the commentaries on the Brahma Sutras expounding the Dwaita Philosophy and denouncing the Maya-Veda of the Adwaitins. On his return to Udipi he converted his Guru Achutha Preksha to his new faith. He resided at Udipi for some time and from the meagre historical accounts that we get from Madhwa Vijaya we find that Sri Madhwacharya installed the sacred image of Sri Krishna originally made by Arjuna and a story is told about the miraculous way in which he got possession of this image. He also founded the eight aforesaid Mutts in Udipi. These Mutts were placed in charge of the eight Bala Sanyasis who were Brahmins from the banks of Godavari. The connection between Sri Krishna installed and consecrated by Sri Madhwacharya on the banks of the tank Madhwa Sarowar and the eight Mutts was intimate as might be expected. The heads of these eight Mutts were Krishnarchakas and supervisors and custodians of this shrine and in course of time each Mutt officiated as the superior or custodian of this shrine and performed worship of the God for two years. The Swamiji on whom this custodianship devolved for the two-year period was known as the Pariyaya Swami. The office has proved onerous in one sense because at the change of the Swami the Pariyaya festival occurs and the Pariyaya festival is one of the most important events in Udipi. To this day each Swami who in turn presides over the temple of Sri Krishna for a period of two years spends the intervening 14 years touring throughout Kanara and adjacent parts of Mysore levying contributions from the faithful for the expenses of his next two years of office which are heavy as he has to defray not only the expenses of public worship and of the temple and Mutt establishment but must also feed every Brahmin who comes to the place. In fact the expenses running to nearly a lakh of rupees had to be met by this Swami out of the income of the shrine, his own home-mutt's income and borrowing. This has resulted in litigations and investigation into the connection between the Mutts and the Sri Krishna Shrine.
25. Kasim Saiba v. Sudhindra Thirtha Swami I.L.R. (1895) Mad. 359, decided by Best and Subramania Ayyar, JJ. arose in the following circumstances. The Swami in this case was the Swami of the Puttige Mutt by name Sumatindra. This Sumatindra was living in adultery with a woman called Akkayya and had an illegitimate son by her. He nominated the infant as his successor of the Puttige Mutt. Therefore, there was a due investigation by Sabha and he was expelled. It found that he had raised moneys for the Pariyaya ceremonies of his turn and the subject-matter of the litigation was whether the successor was entitled to repudiate that debt or not. In that judgment the learned Judges who had the matter argued before them by eminent counsel like late Sir V. Bashyam Ayyangar and Ramachandra Rao Sahib, had pointed out that there are at Udipi eight Mutts which are closely associated with each other of which the Puttige Mutt is one, that they are presided over by Brahmin ascetics, bound to celibacy, who carry on in turn the worship of Sri Krishna in the celebrated temple at that place.
26. The next reported case decided by Abdur Rahim and Phillips, JJ. in Raghubushanam v. Vidiavaridhi A.I.R. 1917 Mad. 809, related to the Bhandarikere and Bhimanakattai Mutts. The learned Judges who had before them all the eminent Madhwa counsel practising at that time write:
In the Udipi taluk where the Bhandarikere Mutt is, there are also eight other Madhwa Mutts belonging to the sect founded by Madhvachariar. There can be no doubt but that the two Mutts concerned in this suit as well as the eight other mutts at Udipi are very ancient institutions. The earliest history of these institutions is involved in considerable obscurity and it is not possible upon the evidence adduced in the case to assign exact dates of their origin. All that can be said with any degree of certainty is that they must be several centuries old. The office of Pariyaya Swami is held in rotation by the swamis of the eight Udipi Mutts, the office-holder for the time being distinguished from the others by having in his charge the Krishna temple. The Pariyaya Swami admittedly has certain honours and privileges above those enjoyed by the Swamis of the seven remaining Mutts.
27. The third relevant reported case in this connection is Vibhudapriya v. Lakshmindra (1927) 53 M.L.J. 196 : L.R. 54 IndAp 228 : I.L.R. 50 Mad. 497 (P.C.) decided by the Judicial Committee of the Privy Council. Their Lordships stated:
It is in evidence that in the town of Udipi there are eight maths each presided over by a superior or Swamiar. They appear to form four groups connected by a tie which permits in case of the superior of one Math dying without nominating a successor the superior of the other Math to appoint a successor to the deceased Swamiar.
Besides these Maths there is a temple dedicated to Krishna, one of the manifestations of Vishnu perhaps the most popular deity forming the Hindu Triad. Admittedly, it has no superior but the affairs of the Krishna Temple are managed by the superiors of the eight maths in turn.
The important ceremonies connected with the temple of Krishna are performed during the Pariyaya which lasts from the 15th January in one year to the middle of January two years later. During this period the superior of the math whose turn it is, usually called the Pariyaya Swami has absolute power over the performance of the rites and ceremonies.
28. The South Kanara Manual, published under the authority of Government, contains the following description regarding these maths:
The temple of Krishna, at Udipi, is said to have been founded by Madhvacharya himself who set up in it the image of Krishna originally made by Arjuna and miraculously obtained by him from a vessel wrecked on the coast of Tuluva. Besides the temple at Udipi, he established eight maths or sacred houses, each presided over by a Sanyasi or Swami. These exist to this day and each Swami in turn presides over the temple of Krishna for a period of two years and spends the intervening fourteen years touring throughout Kanara and the adjacent parts of Mysore levying contributions from the faithful for the expenses of his next two years of office, which are very heavy as he has to defray not only the expenses of the public worship and of the temple and Matha establishments, but must also feed every Brahman who comes to the place.
Madhvacharya, who was born in the 12th century of the Christian era, is credited with introducing vaishnavism cult or the Krishna cult in Southern India.
29. The last relevant reported case is Sri Shirur Mutt v. Commissioner of H.R.E. Board (1952) 1 M.L.J. 557, which went up to the Supreme Court and reported as Commissioner, H.R.E. Board v. Shirur Mutt (1954) 1 M.L.J. 596 (S.C.) : 1954 S.C.J. 335 (S.C.). Satyanarayana Rao, J. gave the following description which has been adopted in the Supreme Court decision concerning these Ashta Mutts and Sri Krishna temple:
The town is celebrated for its sanctity as there exists Sri Krishna Mutt with which is associated the name of Sri Madhwacharya, the well-known propounder of Pluralistic Theism of the Hindu religion. Sanctity is attached to the idol of Sri Krishna which was made of Saligramam stone as it is reputed to have been made by Arjuna and worshipped by Sri Rukmini Devi at Dwaraka. The image was reputed to have been miraculously obtained by Swamiji from a vessel wrecked on the coast of Tuluva. It was carried by him, and later, after removing the gobichandana which was wrapped round it, it was installed at Udipi in the 12th century A.D. There are also three Saligrams in the Sri Krishna Temple, which it is claimed were presented to Sri Madhwacharya by Vysasa when he took his commentary on Sree Bhagavat Gita for the approval of Vyasa at Badrinath. Besides the Sri Krishna Mutt the Swamiji also established eight Mutts at Udipi each presided over by a Sanyasi or Swami. There is no matathipathi for Sri Krishna Mutt but the Swami of each of the eight Mutts in turn presides over the temple of Sri Krishna for a period of two years in every 16 years. At every change of a Swami at the end of two years, a festival known as Paryayam is celebrated on a very grand scale. These eight mutts are Palimar, Admar, Krishnapur, Puttige, Shirur, Sode, Kaniyur and Pajavar. The Mutts are linked together into four groups of two each as Dwandwa Mutts as the two Mutts linked together should co-operate in all matters. The South Kanara Manual, Volume I, page 148 refers to the fact that the periodical change of the Swami presiding over the temple of Sri Krishna is the occasion of a great festival known as Paryayam when Udipi is filled to overflowing by a large concourse of devotees not only from the district but from distant parts especially Mysore State. The Paryaya Swami is under an obligation to feed the pilgrims at this festival and he has to meet the expenses of feeding from the income of the temple of Sri Krishna from the income of his Mutt and from contributions. The rest of the expenditure is met either from the accumulations of the income already made or by borrowing funds. It seems to be almost a usage that every Paryaya Swami has necessarily to borrow large amounts to meet the expenditure of the Paryaya as he would always be unable to meet it from the income. This information can be gathered from the South Kanara Manual, Volume I, pages 147 and 148 and from the decision of the Judicial Committee in Vibhudapriya v. Lakshmindra (1927) 53 M.L.J. 196 : L.R. 541.A. 228 : I.L.R. 50 Mad. 497 (P.C.) on appeal from Lakshmindra v. Vibhudapriya (1922) 44 M.L.J. 187. The present Swami is the 29th disciple of the line of succession starting from the first head who was a direct disciple of Sri Madvacharya.. Shivalli Brahmins who are the followers of Sri Madhvacharya claim this as their exclusive Mutt. These Brahmins are Tulu speaking Brahmins of the Smartha sect and are followers of Dwaita Philosophy founded by Sri Madhvacharya. The head-quarters of these Brahmins is at Shivalli, a few miles away from Udipi, though some of them had migrated to other places in and out side the State. Sri Madhwacharya was born at Udipi but he also resided for sometimes at Shivalli where he composed his 37 spiritual works-see the Manual at page 148 and also Thurston on Castes and Tribes, Volume I, page 378, where he describes the Shivalli Brahmins.
30. The only other source of information in addition to these decisions is the Parliamentary Blue Book on Idolatry, page 162, which is referred to in P.R. Ganapathi Ayyar's Locus Classicus, 'Hindu and Mahomaden Endowment' (page 249) wherefrom he has culled out the information that in accordance with the rules laid down by the great teacher and founder, the Swami or head of each of the eight Mutts officiates as superior of the Krishna temple, and performs the worship of the God for two years.
31. In these circumstances the Government of Madras acting under section.6 of the Madras Temple Entry Authorisation Act, 1947 passed the following order:
It has been represented to the Government that Sri Krishna temple at Udipi in South Kanara district is a public temple, that the Hindu community in general has been for a long time using it as a place of religious worship and that the temple in question may therefore, be declared to be a temple as defined in the Madras Temple Entry Authorisation Act, 1947.
32. His Holiness Sri Paryayam Swamiar of the above said institution has, however, contended that the institution was started by his Guru Sri Madhwacharya for being worshipped only by his eight disciples, that none else has any right to worship Sri Krishna in that institution and that the institution is not therefore a temple as defined in the said Act.
33. The District Magistrate, South Kanara, who has been consulted in the matter, has reported that the religious institution in question is a place used for religious worship by the Hindu community in general that the excepted castes, Harijan and Billavas, also worship the deity from outside the temple and that the offerings given by them also are accepted. He has further reported that the institution is a famous place of pilgrimage, and votaries from distant places also visit it in good number, that their offerings are freely accepted, and that the institution is in receipt of a total tasdik allowance of about Rs. 13,000 from the Indian Union and the Mysore State.
34. In the circumstances stated above His Excellency the Governor of Madras hereby decides under Section 6 of the Madras Temple Entry Authorisation Act, 1947 (Madras Act V of 1947) that Sri Krishna temple in South Kanara district is a temple defined in the said Act.
35. Thereupon the present suit has been filed within six months of the date of the above Government Order and the plaintiffs ask for two reliefs it the suit viz., (1) for a declaration that the suit institution is not a temple as defined in the Act; and (2) for setting aside the above-mentioned Government Order. The plaintiffs are the spiritual heads of six out of eight Maths popularly known as Ashta Maths of Udipi. The heads of the remaining two Maths-Phalimar Math and Krishnapur Math-are impleaded as defendants 2 and 3, the Government of Madras being arrayed as the 1st defendant. The contention of the plaintiffs is that the Sri Krishna temple is only a shrine or chapel attached to the ancient Math founded by Sri Madhvacharya of whom the plaintiffs and defendants 2 and 3 claim to be spiritual descendants. According to the allegations in the plaint Sri Madhvacharya has made Udipi his abode and gathered round him disciples for the propagation of the Dwaita system of thought and the abode of the teacher and his disciples came to be called a Math. He ordained eight among his disciples as Bala Sanyasis and found the Ashta Maths of Udipi. These disciples had to reside in the Math and engage themselves in the study and propagation of religion. The images of Sri Krishna now worshipped in the temple was acquired by Madhvacharya from a lump of gopichandanam brought by the sailors of a native craft which had got stranded near Malpe which is about 3 miles from Udipi. It was consecrated and installed by Sri Madhvacharya in his Math at Udipi and he worshipped it as his Ishta Devata. He ordained that the worship of his Ishta Devata should be conducted by one or other of his eight disciples, who had their residence in the Math itself both during the lifetime of the teacher and for a considerable period thereafter. In course of time, the system of worship by rotation (Paryaya) came into vogue. The Paryaya Swami occupies the Gadi of Madhvacharya and has the right of precedence over other Swamis. He has the incontestable right to exclude anybody from Sri Krishna Temple during the period of Paryaya. He conducts worship from out of the income of his individual Math as also from out of the income of the suit institution. The essential agamic ritual, the traditional structure and the mode of worship which are characteristic features of a temple are not to be found in the suit institution. It is not a place dedicated to or, for the benefit of, or used as of right by the Hindu community in general as a place of public religious worship. The status of the institution had been enquired into by the Hindu Religious Endowments Board in its proceedings, O.S. 472 of 1936 and the Board has held by its order No. 3336-B dated 7th December, 1937, that the institution is not a temple but is a Math and the Government of Madras are not entitled to go behind that order which has become final. The suit institution being a denominational private shrine appurtenant to a Math, Madras Act V of 1947 will not apply to such an institution under Article 26 of the Constitution of the India.
36. The learned Subordinate Judge came to the conclusion (a) that the suit institution is a public temple; (b) that the Government are not precluded by reason of the order of the Hindu Religious Endowment Board in O.S. 472 of 1936 from declaring this institution to be a public temple within the meaning of Section 6 of the Madras Temple Entry Authorisation Act V of 1947 as amended by Act XIII of 1949 and (c) that Article 26 of the Constitution of India has not been offended in this case. He therefore dismissed the suit of the plaintiffs and hence this appeal preferred by them.
37. On a review of the entire circumstances of the case I have come to the same conclusion as the learned Subordinate Judge, that the three contentions put forward by the plaintiffs are totally devoid of merits and here are my reasons.
38. Point (a) : The tests for deciding whether in the given circumstances of the case an institution should be held to be a public temple or private temple, shrine or chapel has been the subject matter of a long line of decisions in this Court no doubt under the Madras Hindu Religious Endowments Act. But as the definition of a public temple is the same under that Act and the instant Act these decisions are equally helpful here. I shall briefly examine them.
39. In Sitaramanuja Chari v. Vallamma (1915) M.W.N. 842 Wallis, C.J., and Srinivasa Aiyengar, J., held as follows:
Where a temple was built by the paternal uncle of the defendant's husband who installed the idol and appointed the various office-holders and it appears there was no difference so far as the performance of puja and other services are concerned between this temple and other public temples and the public were freely allowed to worship therein without the permission of the Dharmakartha and the temple lands were also enfranchised in the name of the idol. Held that the temple is one dedicated to public worship and the trustee must keep an account of the income of the temple and its endowments. The fact that the food cooked in the temple and offered to the idol was used by the defendant alone, that the temple servants rendered services to the trustees also, that a will by the first trustee contained elaborate provisions regarding the management of the temple, and that no accounts had been maintained by the defendant or her predecessor-in-title of the management of the temple properties, did not in any way derogate from the public character of the temple and were quite in-sufficient to prove that it was the private property of the endowment.
In the Full Bench decision of Subramania Aiyar v. Pujari Lakshmana Goundan (1919) M.W.N. 899, the facts were: One Lakshmana Goundan a pious and religious man, built a temple on land belonging to him and installed a deity in it. The public from all parts were worshipping in the temple for a century, contributed towards the building of the temple, established kattalais for Utsavams and purchased land for the conduct of charities in the temple. An Utsava Vigraham is taken in procession on specified occasions, cars built, a car street laid out and many devotees take the vow of performing the tonsure ceremony in it. The founder himself built a choultry for the accommodation of travellers, kept accounts of the hundi collections and the jewels of the idol and the deity is entered in the village registers in respect of some lands as pattadar and there were certain statements in the revenue records showing that the founder was only a trustee. On the other hand, the sole management continued in the members of the founder's family who were the pujaris of the temple and who disposed of the hundi and other collections. There was the tomb of the founder and his wife inside the temple, to whom some pujas were performed and it is found that some restrictions were imposed by the founder against promiscuous entrance of the public. The founder's descendants allowed themselves to be assessed to the income-tax in respect of the income derived from the temple. It was held that the temple was dedicated to the public during the lifetime of the founder Lakshmana Goundan.
40. In Kamala Lachhmi v. Basdeo Prasad (1920) 25 C.W.N. 217 : 13 L.W. 156 (P.C.), their Lordships of the Privy Council held that so far as temples are concerned on the principle of their being extra res commercium, the position of private ownership is prima facie improbable. This principle is based upon the legal effect of Pranaprathishta. By a process of vivification the image from its previous status as an inanimate object, a simple piece of clay, stone or metal, acquires the status of a judicial personage, capable of holding property. It follows from this conception that a consecrated image cannot be the property of any particular person: see page 116 of Tagore Law Lectures, 1892, on 'The Hindu Law of Endowments' by the late Pandit Saraswathi, published by Thacker Spink & Company, Calcutta (1897). See the interesting discussions in the Dakor temple case in Manohar Ganesh Tambekar v. Lakshmiram Govindram I.L.R. (1887) 12 Bom. 247 and in Gopala Muppanar v. Subramania Aiyar (1915) 27 M.L.J. 253, decided by Sadasiva Aiyar and Tyabji, JJ.
41. In Nagi Reddi v. Board of Commissioners for H.R.E., Madras : AIR1937Mad973 , Varadachariar, J., (as he then was) decided as follows:
Reference to public in Section 9(2) of the Hindu Religious Endowments Act signifies only such public as is available in the locality. Where a trust deed in regard to a temple contemplates kainkaryams in the temple being undertaken by outsiders and provides for the performance of Paksha Utsavam,' Masa Utsavam, etc. and the fact that the deity is taken in public procession at least once a year, are all consistent with the temple being a public one instead of a private one. So long as there is no intention to exclude the right of worship, the restriction of the right of outsiders to, interfere in the management of the temple is not a determining fact in deciding whether it is a temple as defined in the Act.
42. In the same volume there is another decision of Varadachariar, J., (as he then was) and King, J., in Venkatasundara Venugopalaswami v. President of the Board of Commissioners for the H.R.E., Madras : AIR1938Mad214 , which may be referred to. In that case it was held as follows:.
The lower Court in giving a finding on the facts as to the nature of the temple being public or otherwise ought to have come to a conclusion on the question whether originally also the temple was private temple or not. The question whether a dedication was to a public trust or not must be determined independently of the factum of the dedication of the property.
43. Their Lordships of the Privy Council in the well-known case of Koman Nair v. Achuthan Nair (1934) 67 M.L.J. 788 : L.R. 61 IndAp405 : I.L.R. 58 Mad. 91 (P.C.), pointed out at page 95 as follows:
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. This was laid down by Seshagiri Ayyar, J. on an elaborate consideration of the whole subject in Subramania Ayyar v. Lakshmana Goundan (1919) M.W.N. 899 which was affirmed by the Board in Pujari Lakshman Gounden v. Subramania Ayyar (1923) 29 C.W.N. 112 (P.C), In that case, which related to a temple in the Salem District founded by a religious devotee in 1814, Seshagiri Ayyar, J. specially excepted temples in the Malabar District from the scope of this ruling and in the later case of a Nair temple in Malabar, Kelu Achan v. Sivarama Pattar Karikar (1927) 113 I.C. 635, it was held by the High Court that there was no such presumption in Malabar.
In Narayanan v. H.R.E. Board : AIR1938Mad209 , Varadachariar, J., (as he then was) and Burn, J., held:
According to the definition of 'temple' in Section 9(12) the user by the public for the purpose of religious worship has to be proved as a fact. The question of intention to dedicate the place for the use of the public or of the user by the public being as of right, is necessarily a matter for inference from the nature of the institution, the nature of the user and the way the institution has been administered. Once a long course of user by the public for the purpose of worship is established and the fact of a separate endowment in trust for the deity is also proved it is fair to infer that the institution must have been dedicated for use by the public (unless the contrary is established) particularly when the character of the temple, its construction, the arrangement of the various parts of the temple and the nature of the deities installed there, are similar to what obtains in admittedly public temples. Similarly, when user by the public generally to the extent to which there is a worshipping public in the locality is established, it is not unreasonable to presume that the user by the public was as of right, unless there are circumstances clearly suggesting that the user must have been permissive or that the authorities in charge of the temple have exercised such arbitrary power of exclusion that it can only be ascribed to the private character of the institution.
44. In Babu Bhagwan Din v. Gir Har Saroop : (1949)1MLJ1 , their Lordships of the Privy Council made observations on the principles of evidence to be applied in determining whether a temple had been dedicated to the public or not and distinguished Pujari Lakshmana Goundan v. Subramania Ayyar (1923) 29 C.W.N. 112 (P.C) and stated:
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 the 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 Hindus sentiments or practice that worshippers should be turned away; and as worship generally implies offerings of some kind it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. Thus in Madancheri Koman v. Achuthan Nair (1934) 67 M.L.J. 788 : L.R. 61 IndAp 405 : I.L.R. 58 Mad. 91(P.), the Board expressed itself as being slow to act on the mere fact of public having been freely admitted to a temple. The value of public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was of right. Their Lordships do not consider that the case before them is in general outline the same as the case of the Madras temple in Pujari Lakshmana Goundan v. Subramania Ayyar (1923) 29 C.W.N. 112 (P.C.) in which it was held that the founder who had enlarged the house in which the idol had been installed by him, constructed circular roads for processions, built a rest house in the village for worshippers, and so forth, had held out and represented to, the Hindu public that it was a public temple.
45. In Ramaswami v. The Board of Commissioners, H.R.E., Madras (1950) 1 M.L.J. 90 ; I.L.R. 1950 Mad. 799, Satyanarayana Rao, J., has exhaustively dealt with the definition of a temple which under Section 9(12) is stated to mean a place by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by the Hindu community or any section thereof as a place of religious worship. The essence of the matter is the existence of a place of public religious worship. In the case of a temple it becomes a place of public religious worship when the idol is installed and consecrated and the pranaprathishta or vivification ceremony is performed. This aspect of the definition was clearly emphasised by the decision in H.E.R. Board v; Rukmani : AIR1932Mad470 , Beasley, C.J., observed as follows:
The definition of a temple in the Act requires it to be a place which is used....
Satyanarayana Rao, J., then referred to the dictionary meanings of the word 'temple.' In the Concise Oxford Dictionary, at page 1261 the meaning of the word 'temple' is given as follows:
Edifice dedicated to service of God; or place in which God resides.
In the New English Dictionary, Volume IX, Part II, the meaning for the word 'temple' is given thus:
An edifice or place regarded primarily as the dwelling place or 'house' of a deity; hence an edifice devoted to divine worship. Historically, the word is applied to a sacred building of Egyptians, Greeks, Romans, etc. but now to those of Hinduism, Budhism, Confucianism, Todism, Shudasm, etc.
Therefore, the definition of a 'temple' in the Act requires two things, viz., the installation of a deity by Pranaprathishta and Samprokshanam ceremonies and its present use or capability of being used as a temple.
46. Viswanatha Sastri, J., to whom this case was referred on a difference of opinion between Satyanarayana Rao, J., and Govinda Menon, J., has pointed out how this definition of 'temple' is difficult of application in this Presidency on account of there being many institutions of a mixed character whose exact place among religious and charitable foundations is likely to be a matter of doubt or dispute. He further observed as follows:
There are some samadhis or tombs and sepulchres of holy men, where an image of Siva is usually installed and worship, regular or occasional, is offered. Some of them have come to be considered as public temples by reason of the sanctity of the persons interred. There are private mausoleums where idols are installed and pooja offered, but which are not temples or temples as defined in the Act, because the public either do not care or are not allowed to worship at such places; Dravisundaram v. Subramania : AIR1945Mad217 , Veluswami Goundan v. Dandapani : AIR1946Mad485 . There have been cases where memorials erected originally in honour of heroes or martyrs have developed into places of public worship and have been declared to be public temples; Board of Commissioners for Hindu Religious Endowment, Madras v. Narasimham : AIR1939Mad134 . There are institutions like Bhajana Matams, where pictures or idols of Gods of the Hindu pantheon are kept the public congregate daily or on stated occasions, sing the praise of God and receive prasadams. There are institutions loosely called mutts which, however, are private buildings in which house-holders, belonging to particular sects or following particular tenets, live with their families. A so-called mutt may merely be the residence of a Sanyasi or Paradesi. There are also endowed mutts which are public institutions established for propagating particular system of religious philosophy, presided over by an ascetic head. There are choultries resorted to by the public, where images of Gods are installed and daily worship offered. There are also endowments of immovable property and cash for institutions of the foregoing types. There are foundations of which it is difficult to say whether they are temples or mutts at all and whether they are temples or mutts as defined in the Act. If with reference to institutions of this kind a dispute arises as to whether they are temples or mutts as defined in the Act the Board is empowered, and indeed the duty is cast on the Board by Section 84, to enquire into and decide this dispute. If on enquiry the Board decides that the institution in question is not a temple or a mutt, its decision will be final, subject to the result of an application and an appeal under Section 84(2) and (3) of the Act.
See also Encyclopedia Brittanica, Volume 21 (1951) edition, page 926-Temple, a word signifying loosely any enclosed space or structure erected for purposes of worship or to protect a cult image or cult objects. In a figurative sense the word is used for any (i) shrine (ii) any building built in a style similar to that of a classic temple (iii) for the meeting houses of certain nonconformist denominations (iv) for synagogues (v) for the meeting place of certain fraternal orders.
47. In Commissioner of H.R. and C.E., Board v. Gangamma : AIR1953Mad950 , Raghava Rao, J., held that if on evidence oral and documentary the user as of right of the shrines as places of worship is established, there is a presumption, unless rebutted by strong evidence on record, that they are temples within the meaning of Section 9(12) of Madras Hindu Religious Endowments Act.
48. In the same volume there is another decision of the learned Chief Justice and Venkatarama Ayyar, J., in Madras Hindu Religious Endowments Board v. Deivanai Ammal : AIR1954Mad482 , to the following effect:
In order to constitute an institution a public temple it is essential that it should be clearly proved that the institution was dedicated to the public. In the case of old temples such dedication might be presumed from long user by the public as of right. The fact there is an Utsava idol and there are processions are generally indicative of the fact that it is a public temple. But where no property has been dedicated for the upkeep of the temple and the expenses are met from out of some private funds, it is difficult to hold that the temple has been dedicated to the public. The mere fact that members of the public were allowed to worship in the temple is no ground to hold it a public temple as it is not in consonance with the Hindu sentiment to exclude worshippers from a temple even when it is private.
49. Bearing these principles in mind let us examine the evidence in this case.
50. The sacred literature throwing light on the founding of this Sri Krishna temple establishes that it was not founded as a private shrine of Ishta Devata appurtenant to a Math but only as a public temple.
51. It is significant that though Sri Madhvacharya was a prolific writer and is credited with no less than 37 works, they do not throw any light on this installation of the image of Sri Krishna by him excepting that according to tradition he is said to have chanted the hymns comprised in one of his works Dwadasastotra while he was carrying the image of Sri Krishna for installation. The earliest reference to this institution is found to be the solitary sloka in the Sanskrit work 'Sampradaya Paddhathi' ascribed to Hrishekesha Thirtha, one of the direct disciples of Sri Madhvacharya and stated to be the spiritual ancestor of the Palimar Math head. This sloka mentions only that Madhvacharya after attaining Sanyasa composed several meritorious religious treatises and installed the image of Sri Krishna in Roopya which is the Sanskrit name for Shivalli. This work as pointed out by the learned Subordinate Judges does not state wherefrom the image was obtained or make no reference to any Math. Anu Madhva Charitam, another Sanskrit work produced by the plaintiffs contains no reference to the installations of Sri Krishna but it only refers to the Roopya Peeta, the centre of activity of Madhvacharya. Madhwa Vijaya, strongly relied upon by the plaintiffs is a Maha-Kavya by Pandit Narayanacharya, son of Trivikrama Charya, an eminent grihasta convert of Madhwacharya. In Chapter IX of that work we find two verses 42 and 43 which translated run as follows:
He sportively brought to the Matha the image which by reason of the sacred touch of the holy man had attained the position of being the abode of Sri Hari and which consequently could not have been borne by thirty persons. He by means of sacred rites installed here the image of Sri Krishna with a beautiful face beaming with gentle smile, delicate complexion and with a form beyond the ordinary ken and adorable.
The learned Subordinate Judge who is a Sanskrit and Kanada Scholar has rightly pointed out that the translation of the last line of the 42nd stanza should be translated as that the image was taken to the math and not that Madhwacharya carried the image to his Math. The Math referred in the 42nd stanza must obviously mean the Kshetra of Anantheswara which is referred to as Roopya in Sampradaya Paddhati of Hrishikesha Thirtha. The reason is, as well pointed out by the learned Subordinate Judge, that as Achyuta Preksha has taken his abode in that Kshetra and was engaged in teaching to his disciples therein, this Kshetra must have been referred to as the Math as by that time it is nowhere established that Madhwacharya had established a Math of his own and the teaching should have all been done in the temple of Anantheswara itself. Therefore the Math referred to must be the temple of Anantheswara. This receives corroboration in two ways. In the end of Madhwa Vijayam it is stated that while expounding Aittraiya Upanishad to his Sishyas in the temple of Anantheswara, the Acharya is stated to have disappeared from mundane existence. In fact even to-day the seat which is said to have been used by Sri Madhwacharya is shown to the pilgrims. Secondly, that the Anantheswara Temple was the seat of teaching by Madhwacharya receives corroboration and therefore separate Krishna Math could not have existed is seen from the importance attaching to Anantheswara even today. Anantheswara is considered to be the holder of the Muli right and Sri Krishna is treated as his tenant. Consequently the pilgrim is asked to pay his homage to Sri Anantheswara and Sri Chandramauleswara before entering the shrine of Sri Krishna. During the car festivals of Sri Krishna both these deities are taken together in procession in a separate chariot. The big car of Sri Krishna temple is allowed to be used for the car festival of Anantheswara which takes place after Sivaratri. On the Paryaya day on which the change in the management takes place all the eight Swamis go in procession first to have Dharsan of Anantheswara and Chandramouleswara before going to the suit shrine. In the Sthala Purana called 'Rajatha Peetha Mahatmya' in the earlier 5th Chapter it is stated that the Krishna image was installed near Sannidhya of Anantasayana, once again showing that the word 'math' used in stanza 20 of the 17th Chapter refers to the temple of Ananteswara. There is a yet different version given in the 20th Chapter according to which God Varuna himself handed over this image of Sri Krishna to Sri Madhwacharaya with a message from Vishnu that it should be installed for the entire mankind of Kaliyuga. The Acharya thereupon installed it with due rites in the Samasthan of Ananthasayana or Ananteswara. It also states that Varuna himself had previously constructed a beautiful temple for this image and that this temple was established on the banks of Sarovara and the idol installed therein. In other words, the solid substratum of definite information super-imposed by the thick crust of mythology accords with the traditional version given by Sri Keshava Krishna Kudva, B.A., LL.B., at page 80 of the 1948 edition that the Acharya constructed a small temple on the bank of the tank and installed the image therein.
52. Then turning to the inscriptions, they also show that this was not a private shrine appurtenant to a Math but was a public institution under the general supervision of the Hindu Sovereigns of that area who were always considered to be the supervisors of all public temples. In the Brindavana Peetha near the Deepastamba, there is an inscription of Mallappa Odeyaru of Barakur of the year A.D. 1387 in which it is stated that Mallappa Odeyaru, the Governor of the Province of Barakur under the Vijayanagar Emperor Harihara Raya (A.D. 1377 of 1404) came for the darsan of Sri Krishna in the Prabhava of that year. This shows the high reputation attained by this Sri Krishna temple even then and how it was being visited by pilgrims from all over the country. In the northern and western walls of the temple there are two other seasons of the year 1390 (Vide Ibid., Nos. 298 and 303) wherein Ashta Yathies are referred to as the eight eminent persons engaged in the worship of Sri Krishna of Udipi. These inscriptions also suggest that the system of worship by rotation must have come into vogue because one of the Yathies Vidya Murthi Thirtha is described in terms showing that he must have been the Pariyaya Swami, On a slab built into the northern wall of the shrine there is a sasana bearing the date of Paramadhi Samvat Vaishak, S. 12 of Salivahana Saka 1536 (A.D. 1614-1651). By that time the Lingayat chieftains of Keladi had established their sway over the Tulu and Male regions and one Ramakrishnappa was ruling Barakur Province as the deputy of Venkatappa Nayak of Keladi and Udipi was itself within the limits of Barakur. In this sasana Veda Vedathirtha the successor of Vadiraja 'Ihirtha is described as the Pariyaya Swami. From this sasana we gather the following important information. The building which had been built of wood previously was dismantled by this Swami, the image of Krishna was temporarily removed to the Mantapa outside and the Garbhagriha of the deity was reconstructed of stone with the roof covered with copper plates and that a Sikhara was installed above. On the command of Veera Venkatapathi of Vijayanagar Empire, who was then ruling at Penukonda, Venkatappa Nayak of Keladi endowed a village Hoovinakere in the Sannadhi of his Guru Murugeshwara, to provide for Amritapadi and Nanda-deepa for Sri Krishna Devaru under this Dharma sasana. The sasana also tells us the then Parayaya Swami besides incurring a part of the expenses of the reconstruction of the shrine from out of his own funds endowed two lands of his own for Hariwana Naiveda of Sri Krishna Devaru. It is finally stated that the ceremony of reinstallation was conducted with the permission of the then Governor of Barakur. Another sasana on the western wall of the shrine bearing the same date as the previous sasana shows that a member of the Gowda Saraswathi Brhamin community, Govinda Prabhu, contributed half the expenses of reconstruction besides creating an endowment for Nanda-deepa in front of the deity. Another Damarasa Prabhu also created an endowment under this sasana for Nitya-Hariwna Naivedya of Sri Krishna Devaru. Veerabhadrappa Nayak, the successor of Venkatappa Nayak referred to in sasana No. 297 created some Umbalies for this shrine. Then we have the Niroopa of Krishnaraja Odeyaru, the ruler of Mysore under whose sway this part of the country came after the fall of the Keladi dynasty, dated Magha Sudha of Vikrama year (1821) granting a Sannad in the name of the deity of Sri Krishna.
53. It may be remembered in this connection that the deity owns lands yielding an annual income of 1000 Mudies of rice and gets by way of tasdik Rs. 8,400 from the Madras Government, Rs. 6,800 from the Mysore Government and Rs. 100 from the then Cochin Government. The income from the Government Inam lands would amount to about Rs. 900 and the entries in the revenue records are all in the name of the deity Sri Krishna Devaru.
54. The description of the physical features of the suit institution as it exists at present, together with the surrounding structures are well brought out in the plans which have been filed in this case as Exhibits A-2 and B-3. Inasmuch as both parties agree that the suit institution has been accurately described by the learned Subordinate Judge after personal inspection I shall content myself with reproducing the description given by the learned Subordinate Judge in paragraphs 14 and 15 of his judgment as follows:
The locality in which the suit shrine and other temples and Maths are situate is known as temple square and the suit shrine abuts a street known as car street, which surrounds two ancient Siva temples Sri Anantheswara Devalaya and Sri Chandra Mouleswara Devalaya. The plots occupied by the shrine of Sri Krishna and its appurtenant structures are covered by R.S. Nos. 118/5 to 9, which are entered in the Revenue Registers in the name of' Udipi Sri Krishna Devaru'. The suit shrine is to the northeast of Ananteswara temple and to the north of Chandramouleswara temple and it is separated from those temples by the car street. The main entrance to the suit institution is on the south and it is known as Kalla Hebbagilu (main stone door way). To the east of the shrine is a tank known as Madhwa Sarovara with a small shrine dedicated to Bhagirathi on its southwestern corner and a Mantapa in the middle. From this tank there is an entrance leading into the premises of the suit shrine and facing east. Passing through his entrance one enters the inner prakara or courtyard studded with compartments. 'In the southern wing of this more or less rectangular courtyard is what is known as Surya-shale on either side of which are rooms where the jewels of the deity are kept. In the western wing is Chandra shale on either side of which are the shrines of Garuda and Maruthi, which are said to have been installed by Sri Vadiraja Swami of Sode Mutt (A.D. 1480-1600). In the northern wing is what is known as 'Arikotulu' or Suddha Peka shale and to the east of it is the seat said to have been used by Sri Madhwacharya. In between these two is the northern entrance into the Prakara. The Garbha-gudi or the sanctum sanctorum, is constructed of granite stones with brass framed receptacles all round for lights. It has a gopuram with kalashas. The roof is covered with copper plates with gold finials and these are painted with plastic figures of the incarnations of Vishnu. There are two entrances leading into this sanctum sanctorun one on the east opposite the entrance from Madhwa Sarovara and the other on the north. At the northern entrance is the image of Sri Madhwacharya and at the eastern entrace is the image of Chennakesava with the images of two Dwara Palakas on either side. This eastern entrance is always kept closed and it is said that it is opened only on Vijaya Dashami Day. The image of Sri Krishna which is made of black saligram stone is about 30' in height and it has a churnor in the right hand, a rope in the left depicting the Bala Leela or the boyhood activities of Sri Krishna. Though the main entrance into the shrine is on the eastern, side, the image faces west. In the western wall of the shrine is a stone grating covered with silver plate embossed with the avatars of Vishnu. It is through this grating that the darshan can be had at all times. Opposite the grating is a Mantapa to the north of which is Tulasi Vrindavana. There is a Deepa Stamba behind this Tulasi Vrindavan with an inscription which will be referred hereafter.
To the north of the main shrine is a_ massive building known as Chowki with the Bhojana-shale on the east. To the north of the Chowki is a building known as Badaga Maliga, which is used as the office of this institution and also for storing provisions. It is in this building, that Paryaya reception ceremony and other public levees and entertainments are held. Attached to it is Vasanta Mahal with a Mantapa where Vasanta Pooja is celebrated. In this court-yard there is a subsidiary shrine of Subramanya. On the north is Vrindhavan wherein are the Samadhis of the previous Swamis. There is also an image of a Bhuta which is said to keep guard over this Kshetra. At the northernmost extremity is a yard known as Rajangana, where public feeding takes place during Paryaya. In the middle of this yard there is a Mantapa where the Utsava Vigraha is taken in procession and worshipped. Lastly, there is a Go-shale or cattle shed to the east of Vasanta Mahal. There are three Rathas or chariots belonging to this shrine and they are used on different occasions.
55. Daily poojas and the rituals connected with this temple are given in a pamphlet published for the help of the pilgrims, Exhibit B-10. From this handbook we find that the deity is worshipped nine times every day, Viz., Nirmalya, Visarjanam, Ushah Kala Pooja, Panchamritha Abhishekam, Udwartana Pooja, Thirtha Pooja, Alankara Pooja, Avasra Pooja, Maha Pooja and Rathri Pooja, to which all the pilgrims are invited to participate in the worship and make their offerings. The periodical festivals celebrated on a grand scale are all set out in this hand-book. At page 42 are enumerated the various kinds of Sevas which could be offered by the devotees and the fees for which are to be determined by the Paryaya Swami. It is further stated that the Paryaya Math would arrange for Homas, Udyapana, Tulabhara, Brahmopadesa, Annaprasana and Namakarana ceremonies for the benefit of the devotees on payment of the prescribed amounts. The devotees are also informed that they can endow sums of money for burning Nanda-deepa and Deepa Sthambha throughout the year.
56. The Stala Purana referred to above also mentions that the performance of Srardha and Pindadana in this shrine, apparently on the banks of Madhva Sarovar, are as meritorious and fruitful as the performance of Srardha and Pinda Dhana at Gaya and Prayaga.
57. In fact the Paryaya Swamis at the time of their installation have been publishing brouchures giving an account of this institution of Sri Krishna Devaru and of his own Math. The information contained in two such pamphlets of 1941 by the Swami of Phalimar Math and another pamphlet of 1948 show that they considered this suit institution only as a public temple and not as the private chapel of the Ashta Maths of Udipi.
58. It is not surprising therefore that P.W. 1 the Matadhipathi of the Bandrkere Mutt had to admit in cross-examination the public participation as of right in the worship of the temple without the permission of the Paryaya Swami, thereby giving the go-bye to the plaint allegations to make out that this is a private chapel. P.W. 2 the head of the Shirur Math stated:
When Hindus get info the temple there is no system of asking for permission. So also no permission is asked for going round in pradakshina and for making money offering in Dabbi or for receiving prasadham, thirtha or arthi but if we choose we can object. Very large number of persons visit this place and worship. But I do not remember of a single instance of a person asking for permission to come to the temple. There is not a single instance during my Paryaya when I prevented anybody entering the suit institution. Nor do I know of any instance when any Brahmin or Non Brahmin having been prevented from entering the temple, nor of having pradakshina or prasadham. In my whole experience. I don't know of any instance of a worshipper having been refused to put kanika. Both Brahmins and non-Brahmins have made payments for seva during my paryaya.... Such of those non-Brahmin pilgrims who could under usage enter temples have come into temple, offered prayer and worship and make prasadhams. According to usage Bhillavas and Holeyas were not coming into inner prakarams. But Mojaveera, Moilies and Bunts were coming into inner Prakaram and offering worship as they have been doing from olden times. All Hindus irrespective of caste and communities visit this place for worship. According to me this is an important Kshetra for Hindus. Like the temples at Banares, Thirupathi, Rameswar and others, the suit institution also is an important place of pilgrimage for Hindus.
P.W. 3 testified to the various Abhisekams and Utsavams held in the temple and the huge concourse of pilgrims on those occasions and added:
This Paryaya Utsava is conducted on a very grand and pompous scale. Pilgrims from all over India would congregate in large numbers on this Paryaya Utsava. The pilgrims and devotees will have darshan of Sri Krishna and they will have various kinds of poojas and archanas performed to Sri Krishna. That apart schedule fees are charged for different kinds of poojas, archanas, sevas and utsavams.... In the Mandir there is a big hundi box in which the pilgrims put their kanikas.
P.W. 4 who is a Tantrik deposed:
I was in Udipi Matha for about six months. I never took permission of anybody to enter the Matha. I was participating in poojas and utsavas. Nobody takes permission of anybody for entering in to the premises or for participating in the ustsavas. Except untouchables, all others would go into the premises as a matter of course. It is a sacred institution for Hindus and thousands of pilgrims congregate there. There are two hundi boxes, one near the idol and another near the Kanakais' window. The Pilgrims that come there get performed poojas and utsavas and pay expenses therefor according to the schedule rates.. This has been in vogue from time immemorial. People consider the suit institution as a Devasthana under the management of the Swamiar.
59. I have already set out the various judicial adjudications in which this institution was only known as the Sri Krishna temple under the supervision of the Paryaya Swami for the time being. To this list of adjudications may be added the order passed by Panchapakesa Aiyar, J., as Joint Magistrate of Coondapur in which he had to consider the rights and duties of this Paryaya Swami wherein he examined on oath the majority of the Ashta Matathipathis and in which order he has described this institution only as a temple.
60. To sum up the foregoing analysis of the evidence the sacerdotal literature extant establishes the traditional version given in the history of Sri Krishna by Sri Kesava Krishna Kuda at page 80 of 1948 edition that the Acharya constructed a small temple on the bank of the tank and installed an image therein in the 13th century. From the inception the Bala Sanyasis of Ashta Maths have been the Krishna Archakas and Krishna Aradhakas. This temple which now comprises in itself all the type design features of a public temple had become famous even by the 13th and 14th century A.D. and Rulers from all over the country have been paying homage to Sri Krishna Devaru making gifts and doing renovation. In course of time the supervision or custody of the temple has come to be regulated and Paryaya Swami for the time being becomes the custodian for two-year periods. An elaborate system of Sevas and Utsavams has come to be organised. The States of Madras, Mysore and Cochin and the Central Government have been granting tasdiks and allowances to Sri Krishna Devaru. The revenue records show that the plot on which the two ancient temples and the suit temple stand are covered by a common ancient Warg No. pattas in respect of the respective sites having been granted in the names of the respective deities. The Inams and endowments all stand in the name of the deity itself. Excepting untouchables all Hindus have as of right been worshipping inside the temple and the untouchables have been worshipping from outside. This is admitted by the P.Ws. themselves as extracted above. Judicial adjudications have been throughout on the foot that the suit institution is a public temple. In short all the characteristics which differentiate a public temple from a private shrine as laid down in the cases on the subject and discussed above are present in the instant case.
61. The weight of this evidence has not been displaced by the five circumstances relied upon by the plaintiffs, viz., that the functions that take place in the temple are not governed by the Agama Sastras as in the case of ordinary temples but according to Tantrasaram: that in the inner surroundings of the temple there are no stones for offering Bali; that the Archakatwam is done not by paid Archakas but by the Yathis: that the Yathis who worship the Sri Krishna do not offer fruits and coconut and take Dakshina; that the Paryaya Swamis have been living within the precincts; and that the cemetery of departed Swamijis is within the precincts. It is contended that these circumstances are inconsistent with the suit institution being a temple. On a careful consideration of all the circumstances I find that none of these circumstances either singly or cumulatively make that the suit institution is not a temple. Though it was alleged that the Vidhis in this temple were as laid down in Tantra-sara, P.W. 1 had to confess that he had forgotten about them and that the Tantra-sara contains only some extracts from Pancharatragama. In fact Agamas and Tantras mean the same scriptures and Tantra-sara compiled by the Acharya is not an independent Code but only the essence of the Pancharatragama as the word 'Sara' indicates. A place of worship need not necessarily have a Balikallu or flag staff. A controversy was also raised in the suit about the absence of Dhwajasthamba and Kalasa in the suit institution. But as a matter of fact it is laid down in the Sthala Purana at page 21 that a pilgrim on sighting the Kalasa and Dhwaja of the shrine should descend from the vehicle and shout 'Krishna Krishna' with devotion. He is asked to pay homage to Garuda in the Dhwaja. This effectively repels the contention that there was no Dhwajarohanam in the suit institution and therefore it is not a temple. There is no Shastric injunction prohibiting Yathi from doing pooja in a temple. The learned Subordinate Judge has pertinently pointed out that the Ashta Yathis are not Sanyasis in the sense that they have abandoned all such daily rituals as namaskara, japa, pooja and the like as is required of a Sanyasin within the meaning of the Sloka found at page 368 of Dharmasindhu Sara. Besides it is a well known historical fact that Sri Vyasaraya undertook the performance of pooja in the temple of Tirupathi for 12 years at the request of Salva Narasimha of Vijayanagaram and supplanted the Vaikanasa system of pooja by Tantra-sara system. As a reward for his services the Swamiars of Vyasaraya Mutt are even to-day received with temple honours by the Archakas of the temple who make symbolical delivery of the keys of the temple to the Swami. This contention that because Yathis perform pooja in the suit shrine, it is not a temple must fail. I have already adverted to the elaborate sevas and utsavas and receipt of Kanikkais. Inasmuch as the Paryaya Swamis have not been living in recent years in the temple precincts and are living in their own Mutt near by, this contention has lost its importance. In regard to the cemetery these Samadhis of saints are not ordinary tombs but sacred places of worship. This is not an ordinary graveyard but a Brindhavan wherein poojas are performed and daily visits are made by the Swamis to pay homage to the memory of their deceased predecessors. Such cemeteries are found in other places too. In Palni temple the first saintly worshipper is buried within the temple itself. The samadhi of Sri Ramanuja is within the four walls of the temple of Srirangam. Therefore these contentions put forward by the plaintiffs do not in any way show that the suit institution is not a public temple.
62. The next contention put forward by the plaintiffs is that by reason of the order of the Hindu Religious Endowments Board having become final the Government cannot now apply the Temple Entry Authorisation Act to this institution on the foot that it is a public temple. But the scope of the order Exhibit A-6 does not lend support to any such contention. They were proceedings under Section 84 of Hindu Religious Endowments Act started on an application filed by the trustees of the suit shrine. No body appeared to contest and the decision was arrived at solely on the uncontradicted evidence adduced by the trustees. The Commissioners placed strong reliance on the evidence of Sri A. Lakshminarayana Rao, who was the then Chairman of the Udipi Municipality, and the President of the Shivalli Temple Committee of Udipi Taluk and whose residence was about a furlong from the suit institution, that the public have a right of access to the temple for worship subject to regulations prescribed by the Paryaya Swami. On the strength of the evidence of this witness the Board held that the members of the Hindu Public admittedly have a right of worship therein and made it clear that their decision that the institution is appurtenant to a mutt and forms part of it in nowise affected the right of the Hindu public to worship subject to the regulations prescribed by the Paryaya Swami for the time being. This finding of the Board making the suit institution a place which is used as of right as a place of public religious worship by the Hindu community or any section thereof is enough for the application of the provisions of Madras Act V of 1947 as amended by Act XIII of 1949. Therefore, the order of the Board does not in any way preclude the Government from applying the provisions of the Temple Entry Act to this place found to have been used as of right as a place of public religious worship by the Hindu community or any section thereof.
63. The final contention of the plaintiffs is that in resisting this application of the provisions of the Temple Entry Authorisation Act they are protected by Article 26 of the Constitution of India. Article 26 deals with a special aspect of the subject 'religious freedom' dealt with under Article 25. The right guaranteed under Article 25 is an individual right, while the right guaranteed under Article 26 is the collective right of a religious denomination, Ratilal Panachand v. State of Bombay : AIR1953Bom242 . Under this article every religious denomination or sect is given a right to manage its own affairs in matters of religion, e.g., Gowdasaraswaths Brahmin community as held in Devaraja Shenoy v. State of Madras : (1952)ILLJ364Mad . There is no dispute that the Shivalli Brahmin community which is in control of this temple is a religious denomination as has been found in Lakshmindra Theertha Swami v. Commissioner, H.R.E., Madras (1952) 1 M.L.J. 557 and that the term 'matters of religion' would take in also religious practices as laid down in Commissioner, H.R.E. Board v. Shirur Mutt (1954) 1 M.L.J. 596. It is even then doubtful however whether within the limits laid down by their Lordships of the Supreme Court in Commissioner, H.R.E., Board v. Shirur Mutt (1954) 1 M.L.J. 596, this mode of practising of untouchability can be construed as a matter of religion; secondly, whether the prohibition of this practice far from being an interference with religious freedom would not be covered by the exceptions laid down in the opening words of Article 26, viz., 'subject to public order, morality and health.' Article 17 formally declares that untouchability is abolished and its practice in any form is forbidden. The provision in the concluding part of Article 17 that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law, contemplates laws making such enforcements punishable as an offence. As instances of laws making enforcement of disabilities arising out of untouchability as punishable offences see The West Bengal Hindu Social Disabilities Removal Act, 1948, The United Provinces Removal of Social Disabilities Act, 1947, The Bombay Harijan Removal of Social Disabilities Act, 1946, The Bombay Harijan Temple Entry Act, 1947, The Madras Removal of Civil Disabilities Act, 1939 and The Madras Temple Entry Authorisation Act, 1947. The law referred to in this Article includes laws passed before the coming into force of the Constitution: State v. Manward : AIR1951All615 . The practice of untouchability which is all that is sought to be protected under the guise of freedom to manage its own affairs in matters of religion would by reason that it would provoke public disorder and that it would be contrary to public morality enshrined in Article 17 not get protected at all. The complete abolition of untouchability was one of the visions of Mahatma Gandhi in Rama Rajya. Article 17 adopts the Gandhian ideal without any qualification and makes it a standard of public morality which cannot be violated without inviting punitive consequence. It is unnecessary however for the purpose of this suit to go into this matter further because the suit institution has been found not to be a denominational institution at all, but a public temple and therefore Article 26 does not apply. In this connection see the discussions throwing much light on the scope of Articles 25 and 26 in The State of Bombay v. Narasappa : AIR1952Bom84 , Srinivasa Iyer v. Saraswathi Animal : AIR1952Mad193 and Davis v. Beason (1889) 133 U.S. 333 : 33 Law. Edn. 637 Safuddin v. Moosaji : AIR1953Bom183 , Shirur Mutt case (1952) 1 M.L.J. 551 and South India Estate Labour Relations Organisation v. State of Madras (1954) 1 M.L.J. 519.
64. Then turning to Article 25, it declares the fundamental freedom of conscience and the right and liberty to profess, practise and propagate any religion to which a man may belong. But such freedom and right are subject to the qualifications prescribed in the Article itself. Article 25(2) of the Constitution is the second exception to the right to freedom of religion declared by Article 25(1). It provides that nothing in this article shall affect the operation of any existing law or prevent the State from making any law-(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character, to all classes and sections of Hindus. Thus Clause (b) provides that where there is conflict between need of a social welfare reform and religious practice, religion must yield. According to Dr. Ambedkar, Constituent Assembly Debates, Volume VII, page 781, the conception of religion in this country is so vast as to cover every aspect of life from birth to death. If the State were to accept this conception of religion the country would come to a standstill in regard to reforms. It may be expected that no sensible State, in the name of social legislation would only touch questionable practices, dogmas and the like which stand in the way of social progress of the country as a whole, for example, the system of Devadasis, Polygamy, etc. So the sub-clause further provides for throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. By 'public institution' it is obviously meant those institutions which have been dedicated to the Hindu public either by grant or user. The family or denominational endowments or institutions would be excluded. Therefore in this case, where the institution to which the Temple Entry Authorization Act is sought to be extended is a public temple in so far as that portion of the suit institution dedicated and used as such is concerned. The application of the Act would be intra vires and not ultra vires of the Constitution of India as embodied in Article 26. For a lucid and exhaustive discussion of the scope of Articles 26 and 27 see the encyclopedia A.I.R. commentaries on the Constitution of India, Volume I, 642-669.
65. In the result agreeing with the findings of the learned Subordinate Judge and affirming them and confirming his decree and judgment I would dismiss this appeal with costs.