P.R. Gokulakrishnan, J.
1. Plaintiff is the appellant. The case of the plaintiff is that his forefathers established a Hanumar temple arid installed the idol Hanumar in it and worshipped it as a family deity. From generation to generation, pooja was conducted by the members of the plaintiff's family at their own cost and expense. The temple had no other property or income. The forefathers of the plaintiff had great faith and fervour in Bajana and hence Bajana was conducted by the temple. The said temple was thus used as a private temple and as a private Bajana Matam. There is no festival conducted in the temple. The people interested in Bajana, used to attend and worship when the plaintiff's forefathers used to do Bajana. Thus, the institution became popular in Madurai city. On account of its popularity, the then Rajah of Sivaganga who was creating endowments in various temples also offered to the temple some paditharam. Similarly from Sarkar kattalai also, some paditharam, was offered. So far as the offering from the Sivaganga Zamin is concerned, it has been stopped. But the Sarkar kattalai is supplied through Sri Meenakshi Devasthanam. The offering is only 1/32 Madras measure of rice and 1/64. Madras measure of oil. The same is hardly sufficient. From Sarkar kattalai Rs. 2-1-0 is given for Navarathiri Pooja. As for Sivaganga kattalai, they give Rs. 2-8-0 per mensem. At present the plaintiff is the only hereditary trustee and archaka of the temple. The plaintiff and members of his family are living in the house on the southern side of the temple. Neivedanam is cooked in the house and offered to the deity. Plaintiff's ancestors were also living in the said portion. On representation by one S.S. Garuswami, the Assistant Commissioner, Hindu Religious and Charitable Endowments Board, Madurai, directed the plaintiff to get a declaration that the Hanumantharayan Bhajana Matam is a private one and that the plaintiff is hereditary trustee thereof. The plaintiff accordingly filed an application before the Deputy Commissioner, Hindu Religious and Charitable Endowments, Madurai. The said proceeding was taken after due notices and publication, and none came forward to object to the grant of the reliefs prayed for in the application. No one claiming either as person interested in the Bhajana Matam or as worshipper of the deity in the Bhajana Matam came forward claiming the institution as a public temple. The plaintiff himself has spent money for construcing a tower over the Bhajana Matam and has been makig improvements from out of his own funds. Bhajana is conducted by inviting Bhagawathars and the invitees alone attend the same. While so, the defendant passed an order dated 30th July, i960, declaring the Bhajana Matam as a public temple, and the plaintiff to be its hereditary trustee. On appeal, the Commissioner, Hindu Religious and Charitable Endowments, Madras, dismissed the appeal on 10th October, 1961. Hence the plaintiff came forward with the suit for a declaration that the Hanumantharayan Bhajana Matam is a private institution.
2. The defendant, who is, the Commissioner, Hindu Religious and Charitable Endowments, Madras, filed a written statement contending that the plaint temple comes within the definition in Section 6(20) of the Madras Hindu Religious and Charitable Endowments Act, XXII of 1959 and that therefore the orders passed by the authorities concerned are correct. There is no proof that the plaintiff's forefathers estabblished the Hanumar temple, nor is there any proof that the site over which the temple was constructed was property belonging to the plaintiff's forefathers. The public gather at the temple as of right. The fact that paditharam was given by the Rajah of Sivaganga and Sri Meenakshi Devasthanam, Madurai, by creating endowments, and the fact that not only money but also things like oil, rice and other materials are given regularly to the Hanuman temple, clearly establish the fact beyond doubt that the temple is a public religious institution governed by the Madras Act XXII of 1959. The temple has all the indicia of a public temple and in addition to the Hanuman idol, idols of Vinayakar and Nagar are therein the temple. The characteristics of a Hindu temple, viz., the Vimanam, sanctum-sanctorum and other things are found in the plaint temple. Public Used to visit the temple and do Bhajana as a matter of right. Further, Hindu public used to visit the temple and have archana performed. Paditharam given by the Sivaganga Devasthanam and Meenakshi Devasthanam were received by plaintiff under his signature and there are records for obtaining such paditharams. The defendant further alleged that the suit Was not filed within the time allowed by the statute and that the cause of action mentioned in the plaintiff is all wrong.
3. The Subordinate Judge, Madurai, on the issues framed and on a consideration of the materials on record came to the conclusion that the suit temple is a public religious endowment, as defined in the Hindu Religious and Charitable Endowments Act (hereinafter referred to in this judgment as the Act). Even though the contention that the suit is barred by limitation was not pressed by the defendant the trial Court on the materials available, recorded a finding that the plaintiff has filed the suit within 90 days from 2nd November, 1961, and hence the suit is not barred by limitation. In the result, the trial Court dismissed the suit with costs.
4. Aggrieved by the judgment and decree of the trial Court, the plaintiff has preferred this appeal.
5. Mr. Kothandrama Nayanar, learned Counsel for the plaintiff, analysed the evidence on record and also the case Law on the subject in support of his contention that the suit temple is a private temple. Section 6(20) of the Act defines a temple as meaning:
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 (hereof as a place of public religious worship.
According to the learned Counsel, the temple in question is not a place of public religious worship, it is not dedicated to the public for worship, it is not intended for the benefit of the public, it is not used as of right by the public or by the Hindu community or any Section thereof, there is no bali-peetam, there is no Uthsava idol, and the temple will be closed whenever there is pollution in the house of the plaintiff. According to Counsel, all these things will clearly prove the private nature of the temple. He cited the decision in Madras H.R.E. Board v. Deivanai Animal : AIR1954Mad482 where Venkatarama Aiyar, J., delivering the judgment on behalf of the Bench, held:
In this case the temple Was built only in the year 1919, and in the absence of a deed of dedication it is difficult to hold that there has been dedication to the public. It is true that the facts there is an uthsava idol and there are processions are generally indicative of the fact that it is a public temple. But then no property has been dedicated for the upkeep of the temple. The worship is maintained and the expenses are met from out of the private funds of the respondent. In the absence of any property being dedicated for the maintenance of worship in the temple, it is difficult to hold that the temple has been dedicated to the public.
The mere fact that the public arc allowed to Worship and the deity is taken in procession, will not make it a public temple. It is not in consonance with the Hindu sentiments to exclude worshippers from a temple even when it is private. With these observations, the Bench held that none of the features relied on by the Madras Hindu Religious and Charitable Endowments Board is of sufficient Weight to prove that there had been a dedication in order to make the temple as a 'public' one.
6. As far as the present case is concerned, the above Bench decision is distinguishable. In the case on hand, there is no record to show as to when the temple was built. But that the time is 'immemorial' is established by the evidence of the plaintiff himself. In the present case, there is paditharam given by the Sivaganga Devasthanam and Meenakshi Devasthanam. These apart, the Madurai Municipality is making a demand in respect of the property in dispute in the name of Sri Hanumar Koil, as evidenced by Exhibit B-6. I will be presently dealing with the evidence on record in order to give a finding as to whether the temple is a public or private one. As far as the above Bench decision is concerned, the same is interesting to note since the Pillayar temple which is in a poramboke land, that too in the midst of a busy locality of the City of Madras, was found to be a private one. This was purely on the basis that there was no dedication as such to the public as contemplated by Section 6(20) of the Act, in spite of the fact that 'kaingaryams' are made 'kumbabishekam' was performed, utsavamurthees arc there, the idols are taken in procession on chaprams, a gurukkal has been engaged to perform the pooja regularly, a gopuram has been built over the temple, and members of the public are worshipping the deity.
7. In Chakkarai Cheiti v. Board of Commissioners, H.R. & C.E., Madras (1943) 56 L.W. 830 Govinda Menon, J., holding that the temple involved therein is a private one, observed:
There is nothing which prevents any. individual from constructing a place of private religious worship with all the indicia of a public institution. The question whether a house of God is to be considered as belonging to a family or group or whether it cannot be used as of right by the public cannot be determined by the nature of the buildings and the opulence with which the same has been furnished. The criterion will be whether there has been any dedication to the public' 'The mere fact that on one or two days some of the Villagers spend money for conducting certain uthsavams would not show that the members of the public have conducted festivals as a matter of right. The fact that no member of the public would come forward and depose that the temple is a public one is an important criterion in this respect.
It is significant to note that in that decision there was Exhibit B-1 o dated 4th February, 1896 and the inscription in the same was to the effect that on the 23rd Thai, Jaya (4th February, 1895) commencing from Prabhava, the Kaliyugha 4696th year, the building of Sri T. Ganapathy Subramania Swami Devasthanam at Palaverkadu, Ponneri Taluk, Ghingleput District, had been constructed and completed by the trustees of the devasthanam. There Was nothing to show that any member of the public had contributed anything towards the construction of the temple. There was also evidence in that case that there was no dedication of the temple to the general public and that no separate funds were endowed to the temple. On such facts, the Bench, in the above decision, correctly worked out the principles on which a temple could be considered as a public one. The learned Judges there held that unless a dedication to the public is proved, the temple will be considered as a private one. On a consideration of the entire evidence in that case, the Bench was not satisfied that there has been any dedication of the institution to the Hindu Public or to any Section thereof. In this view, the Bench held that the temple concerned therein was a private one, by allowing the appeal.
8. In Tilkayat Skri Govindlalji Maharaj v. State of Rajasthan : 1SCR561 the Judges of the Supreme Court at page 585 considered the indicia for declaring a temple as a private or public one. It is stated therein:
A temple belonging to a family which is a private temple is not unknown to Hindu Law. In the case of a private temple it is also not unlikely that the religious reputation of the founder may be of such a high order that the private temple founded by him may attract devotees in large numbers and the mere fact that a large number of devotees are allowed to worship in the temple would not necessarily make the private temple a public temple... where evidence in regard to the foundation of the temple is not clearly available, sometimes, judicial decisions rely on certain other facts Which are treated as relevant. Is the temple built in such an imposing manner that it may prima facie appear to be a public temple? The appearance of the temple of course cannot be a decisive factor; at best it may be a relevant factor. Are the members of the public entitled to an entry in the temple? Are they entitled to take part in offering service and taking darshan in the temple? Are the members of the public entitled to take part in the festivals and ceremonies arranged in the temple? Are their offerings accepted as a matter of right? The participation of the members of the public in the darshan in the temple and in the daily Acts of worship or in the celebrations of festival occasions may be a Very important factor to consider in determining the character of the temple.
9. In Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas and Ors. : 2SCR275 the Judges of the Supreme Court laid down certain principles for finding out as to whether a temple is a private or public one. They stated:
If a temple is proved to have originated as a public temple, nothing more is necessary to be proved to show that it is a public temple, but if a temple is proved to have originated as a private temple or its origin is unknown or lost in antiquity then there must be proof to show that it is being used as a public temple. In such cases the true character of the particular temple is decided on the basis of various circumstances. In those cases the Courts have to address themselves to various questions such as:
(1) Is the temple built in such imposing manner that it may prima facie appear to be a public temple?
(2). Are the members of the public entitled to worship in that temple as of right?
(3) Are the temple expenses met from the contributions made by the public?
(4) Whether the Sevas and Utsavas conducted in the temple are those usually conducted in public temples?
(5) Have the management as well as the devotees been treating the temple as a public temple?
Thus the principles laid down in various Supreme Court decisions are only guidelines for the purpose, of finding out as to whether there is a dedication to public or not. Whether a religious endowment is a public or a private one is a mixed question of Law and fact, the decision of which must depend on the application of legal concepts of a public and private endowment to the facts found. 'The vastness of the temple, the mode of its construction, the long user of the public as of right, grant of land and cash by the rulers taken along with other relevant factors in that case were consistent only with the public nature of the temple'. This observation is laid down in Narayan Bhagwant Rao Gosavi Balajiwele v. Gopal Vinayak Gosavi and Ors. : 1SCR773 .
10. In Mukherjea on Hindu Law of Religious and Charitable Trusts - 3rd Edition at page 131, it is stated:
The existence of any document, as has been said already, is not necessary to prove a debutter, but the absence of a document throws a heavy onus upon the party who sets up dedication to prove that a property has been inalienably conferred upon an idol. The purchase of property in the name of an idol, where the purchase-money does not come from funds appropriated to the use of the idol, is not tantamount to a dedication of the property to the idol; it may be a benami or fictitious transaction. The fact that property is ordinarily described as debutter is certainly a piece of evidence in favour of dedication, but not conclusive.
In the same book at page 145 the author has discussed various other cases regarding the principles to be borne in mind for the purpose of giving a finding as to whether a temple is a private or public one.
11. Mr. Kumaraswami Pillai, the learned Assistant Government Pleader, also cited the decision in Commissioner, Hindu Religious and Charitable Endowments, Madras v. Kalyanasundara Mudaliar : (1957)2MLJ463 wherein a Bench of our High Court held:
To fulfil the requirements of the definition of a 'temple' in Section 9(12) of the Madras Hindu Religious Endowments Act, 19,7 (Section 6(17) of the Madras Act XIX of 1951), it is necessary: (1) that the place in question should be used as a place of public religious worship; and (2) that it must be dedicated to or for the benefit of or used as of right by the Hindu community or any section thereof. That the provisions of the settlement deed in this case, taken along with the other features, such as the existence of a dwajasthambam, balipeetam and the utsava vigrahams, the carrying of the deity in procession and accepting deeparathana from the members of the public on that occasion conclusively established that the installation was a place of public religious worship, dedicated to or for the benefit of the Hindu community or, in any event, to a Section of the Hindu community in the Village as a place of religious worship, and that it was a public and not a private temple and fell within the definition of Section 9(12) of the Madras Act II of 1927. While evidence of contribution from the public will go some way in support of the contention that the temple is clearly a place of public worship, the absence of such contribution is inconclusive; it might be that the public do not go to the temple in large numbers, but in the case of a temple in an out of the way Village, with only a few houses, so long as the place is kept open as a place of public religious worship and there is proof of dedication to the public, it would matter little if actually very few members of the public make use of the place as a place of religious worship. When the entire evidence in the case is before the Court, it is of little profit to embark on an inquiry as to the party on whom the burden of proof lies.
12. In Ramaswami Jadaya Gounder V. The Commissioner, Hindu Religious and Charitable Endowments (Administration) Madras and Anr. : AIR1964Mad317 a Bench of this Court has held:
In order to constitute a temple as defined in Section 6(17) of the Madras Hindu Religious and Charitable Endowments Act, 1951, it has to be proved that the place was and is being used for public religious worship and that it has been dedicated to and for the benefit of or used as of right by the Hindu community or any Section thereof as a place of religious worship. In the case of a very ancient temple whose origin is unknown, there being no evidence as to who founded it or built it, and it is in evidence that it is a popular one situate on a hill, in which the right of worship is not confined to any particular family alone, but it has always been accessible to all the Villagers living in the locality who have been holding the temple in great Veneration, it must be held that the institution is a public one and a ' temple' as defined by Section 6(17). In respect of temples in the Madras State there is a strong presumption that they are public institutions. The situation of the temple on a hill, its accessibility to all the people residing in the locality without let or hindrance, the shrine basing built of stone, with a mandapam and a tower, the deity having several vahanams and the existence of utsava vigrahas, the existence of a car in which the deity is taken out in procession during the festival days, the expenses of the festival of the temple being met by collections from the public, the existence of a hundi in which devotees put money, and the circumstance that during festival days the public put up pandals after clearing the thorny tracts up the hills, all these features indicate that the temple is a public one.
13. In Subbiah Pillai v. Commissioner, Hindu Religious and Charitable Endowments (Admn.) Dept. (1964) 77 L.W. 94 Venkatadri, J., delivering the judgment for the Bench, took into consideration all the principles laid down in the Various decisions cited above and other decisions, and came to the conclusion in the particular circumstances of that case that the temple was a private one. Their Lordships in that case observed:
A temple Was proved to have been founded by the plaintiffs' family who had settled properties for its use and benefit; there was no evidence on record to show that any member of the public either offered moneys or endowed any property to the temple. The entire properties belonging to the temple were in the possession of the plaintiffs' family. No member of the public either interfered with their management and possession of the properties or called upon them to render any account in regard to the income of the properties. There was no cogent or clear evidence to prove that the members of the public as a matter of right were allowed to worship in the temple. The temple was situated not only adjacent, to the plaintiffs' house, but the plaintiffs have access and entrance to the temple directly from their house, and the gate will be always locked except when poojas are performed by the archakar.
Mukherjea, J., in his Tagore Law Lectures on the 'Hindu Law of Religious and Charitable Trust', 1952 Edition under the head 'Material tests for determining the public or private character of a temple' has stated at page 186:
In cases where no express dedication is proved, the character of the endowment must always be a legal inference from proved facts. As in the case of highways long user is undoubtedly a material element from which an inference of dedication may arise. If the public have been in the habit of worshipping in the temple in an open and unconcealed manner for a long period of time, and were never denied any access to it, that would be a strong evidence of dedication. With regard to the period of user, no hard and fast rule has been laid down. There is no minimum which must be fulfilled and there is no maximum which compels the inference. Each case would depend upon its own circumstances.
We are of the view that the abovesaid principles of Mukherjea, J., in his Tagore Law Lectures on the 'Hindu Law of Religious and Charitable Trust' 1952 Edition clearly and categorically bring out as to how the test should be applied for the purpose of arriving at. whether a temple is a private temple or a public temple. The Various other decisions cited above cannot be conclusive for the purpose of arriving at a decision in a given particular case. As stated by Mukherjea, J., each case. would depend upon its own circumstances and hence, in the light of the principles laid down in the above cited decisions, we have to discuss arid decide as to whether the present temple can come under the category of a public temple or a private temple.
14. One more difficulty that presents itself in this case is that the origin of this temple is unknown, there being no evidence as to who founded it or built it except for the fact that the same is a popular one. There is also no deed of dedication forthcoming in respect thereto. In the cases cited supra, the temples involved therein were of recent origin with ample materials available to decide as to dedication of the temple to the public at large or otherwise. In Ramaswami Jadaya Gounder V. The Commissioner, Hindu Religious and Charitable Endowments (Administration), Madras and Anr. : AIR1964Mad317 a Bench of this Court has held, in respect of a temple in the city of Madras, that there is a strong presumption that it was a public institution, on a discussion of the facts and circumstances of that case. In the light of these observations, it is necessary for us to discuss the evidence on record.
15. The trial Court, after elaborately discussing the evidence on record, held that the suit temple is a public religious institution as denned in the Act and that the orders of the Deputy Commissioner and the Commissioner in respect of the suit temple have to be upheld.
16. D.W. 1, the Inspector of Hindu Religions Endowment, stated in his evidence, as the first witness examined in the suit, that the plaintiff gave the statement Exhibit B-1 to him and another statement Exhibit B-2 to one Natarajan. He also produced Exhibit B-3, the statement recorded by him from persons present during his visit to the temple. He stated that there is Hanumar 'silai' and there are also Vinayakar silai and Nagar silai in the temple, and there is also the vimanam in the temple. He stated that the two persons from whom he recorded Exhibit B-3 were coming inside the temple at the time of his visit. He admitted that the plaintiff himself was doing pooja in the temple. According to him, Sri Meenakshi Amman temple and the Sivaganga Devasthanam are giving paditharam to the suit temple. In cross-examination, he stated that bajana is conducted every. Saturday in the temple, public used to come for the bajana, public are allowed to worship without restrictions, the plaintiff is living in the southern portion of the temple, a portion therein was used as mada palli and he does not know when the temple was built. D. W. 2 was a clerk in the Sivaganga Devasthanam at Madurai for ten years till 1959. He spoke to the paditharam given for the suit temple by the Sivaganga Devasthanam. He stated that he used to go to the suit temple twice a month for the purpose of seeing whether the paditharam given is used properly and that when he visited, he used to see 'pooja' being performed and public also attending the pooja. According to D.W. 2, the plaintiff used to distribute prasadam to those present at that time.
17. P. W. 1 stated that the suit bhajana matam was constructed by his ancestors of the seventh degree, that it was never a public institution and that the public never claimed any right in the suit temple. He stated that there is a statute inside the matam, that there is a Thulasimatam nearby, that there is no covering over the Pillayar and that Hanumar is installed in a room. He also stated that he is the archakar, that there is no flagstaff for the temple, that there is no maha-mantapam or ardha mantapam, that there is no palli-arai for the temple, that no tirupalli cihichi is performed, that there is no such thing as Viswaroopa-darsanam, that the temple has no uthsavamoorthi and that no festival is celebrated for the temple. P.W. 1 further stated that in the morning poqja is conducted, in the evening lighting would be done, no archana is done by paying money, no money is collected by hundial and there is no income or ho property for the bhajanai-matam. It is in evidence that bhajana would be held on one Saturday of each month and that after Gokulashtami, bhajana would be done for ten days. People will come for singing in the bhajana only at the plaintiff's request, and the plaintiff would offer sundal prasadam only to those persons who take part in the bhajana. It is the further evidence of P. W. 1 that there is no mata-palli for the temple, that the Meenakshi temple and the Sivaganga Samasthanam gave padi-tharam only on his consent, that the vimanam for the temple was built in 1938 at his cost and that if any person in his family dies, the bhajanai matam would be closed till the pollution is removed and till that time there will be no neivedyam to the deity. It was admitted by him that he used to get gingelly oil and groundnut oil for preparing neivedyam and lighting from Meenakshi Amman temple every week after signing in the register, and is getting from the Sivaganga Devasthanam the pooja samans like dhall, ghee, salt etc., after signing Exhibit B-7, that there are garbhagriham, vimanam etc., in the temple, that about thirty to forty persons would be coming for the bhajana and that the public never used to come for doing archana. The plaintiff also admitted that he signed the statement Exhibit B-2, that the contents of Exhibit B-2 are correct, that foe gave the Statement Exhibit B-1, that the contents thereof are correct and that the Inspector recorded a statement from two persons under Exhibit B-3. He also admitted that the site is recorded in the municipal records as Hanumantharayar 'idam', that the tax receipt Exhibit B-6 refers to the tax levied for the portion used as his dwelling house and that Exhibit B-3 was given by Venkatarama Ayyar and Subramania Ayyar only after the plaintiff sent for them.
18. P.W. 2, Venkatarama Ayyar who gave Exhibit B-3 stated that the public have no right in the suit temple, that he is attending the bhajana from his twelfth or thirteenth year of age, that other bhagawathars also used to come for the bhajana on invitation, that there is no hundial for the temple, that no collection is made from the public, that there is Ho dwajasthambam or ardha mantapam or maha-mantapam, that no pooja is done as per the rituals, that no procession or uthasavam is done for the temple, that no viswa-roopa-darsanam is done in the temple, that the gopuram was constructed about thirty years ago by the plaintiff and that no kumbabishekam or mandalabishekam was performed for the temple, and that if any death takes place in the plaintiff's family the bhajana-matam Would be closed till the pollution is removed. P.W. 2 admitted that there is a matapalli for the temple, that after bhajana is over, the prasadam would be distributed only to those who take part in the bhajana, that the plaintiff is doing the pooja in the temple, that public used to colne for for worship after taking vow and 'prasadam' would be given to them, that he would mostly worship Hanumar, that he used to go for worship in the temple in the morning when pooja is done, that he used to go for worship without taking any permission from anybody and that he is doing worship in this temple for more than fifty-years. This witness also admitted that he has stated before the Deputy Commissioner in O.A. No. 8 of 1961 on the side of the plaintiff that no objection was raised to the visit to the temple by the members or the public, and that he stated therein that about thirty or forty persons used to come for doing bhajana, and they are all worshippers,
19. P.W. 3, a mason, aged about seventy-one years, deposed that he built the vimanam for the suit temple, that P.W. 1 used to do pooja by offering neivedyam and that at that time the public will not come.
20. Exhibit B-2 is the statement given by the plaintiff before the Commissioner, Hindu Religious and Charitable Endowments, Madurai Division. Therein, the particulars given in the Town Survey Resettlement Final Register regarding the suit temple, have been furnished. It is mentioned that the plaintiff described the temple as 'Hanumar Koil' and that the land is being used as Koil. In that statement, the plaintiff has further stated that he used to do bhajana every Saturday, that in this bhajana outsiders also used to participate, that for this weekly bhajana, Rs. 11 would be spent, that for the daily popja, about Rs. 21/2 would be spent and that the suit temple is a famous one at Madurai. In Exhibit B-2, the plaintiff also mentioned that from time immemorial, paditharams are being received from Sri Meenakshi Sundareswarar temple and the Sivaganga Devasthanam.
21. Exhibit B-1 is the statement given by the plaintiff to the Endowment Inspector, Madurai Division, wherein the plaintiff has reiterated what all he has stated in Exhibit B-2.
22. Exhibit B-3 is the statement given by K.S. Subramania Ayyar and S. Venkatarama Ayyar (P.W. 2) before the aforesaid Inspector. They have stated therein that the suit temple is a famous temple in that locality, that the same had been established by the ancestors of the plaintiff, that the temple is being managed by the family members of the plaintiff alone, that public used to visit this temple and worship there, that prasadam used to be distributed to them and that to their knowledge, there are no properties or income whatever for the temple.
23. Exhibit B-4 is the report of the Inspector, wherein he has stated that there are idols of Hanumar, Vinayakar and Nagar in the suit temple, that the idol of Sri Hanumar is at the sanctum-sanctorum of Sri Hanumar Sannidhi, that there are vimanam and gopuram for the temple, that from the appearance of the temple building it would be clear that it is a common Hindu temple, that persons who were present at the time of his enquiry had admitted in their statements that the temple is a famous one at Madurai, that public used to participate in the bhajana conducted at the temple, and that devotees would go to the temple and perform archana there. The Inspector has further reported that a sum of Rs. 2.44 being the municipal tax for six months in respect of Sri Hanumar Temple has been levied and that the receipt is issued in the name of Sri Hanumar Temple. The Inspector also stated that there no festivals whatsoever or taking the deity in procession will be conducted there and that it is not known whether it remained under the administration of the East India Company.
24. Apart from the above said documentary evidence, there is Exhibit B-6, which is very clinching on the issue. It is a receipt for property-tax given by the Madurai Municipality. The receipt clearly reveals that the property over which this temple is situate, belongs to the temple itself and it is significant to note that it mentions the name of the assessee as ' Mr. Hanumar Koil'.
25. From the foregoing oral and documentary evidence Mr. Kothandarama Nayanar, the learned Counsel for the appellant, strenuously argued that the principles laid down in the above-cited decisions can be brought to support, in view of the evidence on record, for the purpose of declaring the suit temple as a 'private' one. It is unnecessary for us to repeat as to what all things the temple is not doing, to constitute itself as a 'private' temple. As laid down in Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas Kalidas and Ors. : 2SCR275 according to the learned Counsel for appellant the temple built is not of such an imposing nature, to attract the definition of a 'public' temple, that members of the public, as the evidence on record will prove, are not worshipping at the temple as a matter of right, that it cannot be said that, from stray instances of the Meenakshi Devasthanam and the Sivaganga Devasthanam giving paditharam, the temple expenses' are met by public contributions, that no sevas and uthsavams are conducted as are used to in public temples and that the evidence on record proves that no devotee is treating the temple as a 'public' one.
26. Mr. Kumaraswami Pillai, the learned Assistant Government Pleader pointed out the portions in the oral and the documentary evidence as indicating that the temple is being used as a public temple. He stated that broad features taken from the evidence on record, prove that the temple is a famous one, that its origin is not known, that public are entertained at the bhajana conducted there, that the plaintiff's witnesses, aged over seventy years have been worshipping for over thirty or forty years in the temple, that paditharam is being given by Meenakshi Devasthanam and the Sivaganga Devasthanam, that the statements Exhibits B-1 to B-3 indicate that the suit temple has been treated as a place of public religious worship and that the appearance of the suit temple with vimanam and the presence of the idols such as Sri Hanumar, Sri Vinayakar and Sri Nagar,. indicate that it is a place of public worship. Mr. Kumarasami Pillai also stated that m the absence of a deed of dedication, the ordinary presumption, as far as the State of Madras is concerned, is, that the temple is a public institution. No doubt, Mr. Kumaraswami Pillai stated that such presumption has to be raised only if the attendant circumstances referred to in the above-cited decisions to raise the presumption of public temple are present. According to him, the evidence on record, more especially Exhibit B-6, the tax-receipt, given by the Municipality, bearing the recital that it has been issued in the name of 'Mr. Hanumar Koil' clinchingly proves that the temple is being looked upon and treated as a place of 'public' worship. The authorities have also examined this position and have declared the temple as a public temple, but given the right of hereditary trusteeship to the plaintiff in the suit.
27. Considering the oral and documentary evidence adduced in this case, and applying the principles enunciated in several cases to decide as to the public or private nature of a temple in the given circumstances, we are of opinion that it has been amply proved in this case that the suit temple is a 'public' one. On the evidence on record, it can also be presumed that there has been a dedication of the temple to the public from time immemorial and the public arc using this temple as a place of public worship.
28. In those circumstances, the appeal is dismissed. But there will be no order as to costs.
29. I respectfully agree. That the public resort to the place as a place of public religious worship has amply been established. It is also clear that they have done so without the permission of the plaintiff or his ancestors. The plaintiff himself in his statement, Exhibit B-2, made in 1959, had stated that all the outsiders used to participate in the daily pooja and in the weekly bajan. He confirmed this in the statement, Exhibit B-1, given in i960. In his evidence the plaintiff admits that the contents of Exhibits B-2 and B-1 are correct. In particular, he admits that bajana would be conducted for worshipping the deity and that thirty to forty persons would come for it. He also admits, 'If the public come for worship we will not prevent them from worshipping'. But he adds that the public never used to come for doing archana.
30. P.W. 2 admits that the public used to come for worship, but he would say in chief-examination that it was not as a matter of right. But he admits in cross-examination that he himself used to go for worship without taking the permission of anybody. He admits that he had stated in his prior statement before the Deputy Commissioner in O.A. No. 8 of 1961 as a witness for the plaintiff that no objection was raised to the visit to the temple by the members of the public and that thirty or forty persons used to come for doing bajana. His prior statement, Exhibit B-3, Was also to the effect that the public used to visit the temple and worship.
31. It is thus clear that no permission has been taken by any member of the public for going to the temple. It is true that Hindu sentiment is against turning out any worshipper, but it is significant that all these years there has been DO instance of anybody having taken permission or having been refused permission. The evidence only shows that the public resort to the place for worship, as a matter of right. That itself proves dedication. But dedication can also hi inferred from some other circumstances.
32. Thus P.W. 1 himself admits that from time immemorial padithara samans (articles used in daily worship) are being given from Sri Meenakshi Sundareswarar temple. It includes 1/32 measure of rice daily and 1/64 measure of gingelly oil. In addition to this the Sivaganga Samasthanam was giving 15 measures of rice, and some other articles and gingelly oil worth Rs. 2-8-0. The rice alone has been stopped from 1944. The Sivaganga Samasthanam has been giving rice worth Rs. 1-15-0 and cash of Rs. 3-15-0 for the Hanumantha Jayanthi. Sri Meenakshi Sundareswarar Dsvasthnam is giving Rs. 2-1-0 for the Navarathri festival. These details are admitted by him in Exhibit B-2 and in his own evidence. He or the members of his family signed in the register, Exhibit B-7, maintained by the Sivaganga Samasthanam in token of having received the articles. It seems to me very unlikely that such paditharams would be given by Sri Meenakshi Sundareswarar Devasthanam and by the Sivaganga Samasthanam to a private temple, and that the proper inference is that the paditharams were given because it was a public temple. P.W. 1 also says that it is a famous temple. That also is more consistent with its being a public temple.
33. Again, P.W. 1 admits that the Municipality collects tax for the residential portion where he is residing, but not for the portion where the temple stands. This is also clear from Exhibit B-6, the receipt dated 7th March, 1959, given by the Municipality and which is in the name of the Hanumar Koil. Two or three comments have to be made about this. Section 83(1) of the District Municipalities Act, 1920, states:
34. Section 83(1) : - The following buildings and lands shall be exempt from the property tax
(a) places set apart for public worship and either actually so used or used for no other purpose.
Since the portion on which the temple stands is exempt from tax, it follows that the exemption is due to the fact that it has been set apart for public worship. The exemption would not have been granted, if it had been set apart for private worship.
35. Again, if the site of the temple belonged to the ancestors of the plaintiff and they had exclusively put up the temple with their funds, and the temple and the residential portion belonged to the plaintiff's ancestors and the plaintiff, we would expect the receipt to be in the name of the plaintiff, but actually it is in the name of the Hanumar Koil.
36. For the above reasons, the place in question satisfies the definition of 'temple' in Section 6(20) of the Act.