Kerala High Court
As.No.71/1994 Of Addl. District Court vs Additional 5Th
Author: P. Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE P.BHAVADASAN
SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933
SA.No. 855 of 1996(B)
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[AS.NO.71/1994 OF ADDL. DISTRICT COURT, ALAPPUZHA,
OS.NO. 53/1984 OF SUB COURT, CHERTHALA]
....................
APPELLANTS/2ND PLAINTIFF/1ST RESPONDENT AND
ADDITIONAL 5TH DEFENDANT/3RD RESPONDENT:
------------------------------------------------------------------------------
*1. NARAYANAN P.G. KRISHNA VARMA THAMPAN,
KOPPIZHA PUTHIYAMADATHIL, CHENNAMPALLIPPURAM MURI,
PALLIPURAM VILLAGE, CHERTHALA TALUK. *(DIED).
2. NARAYANAN SATHEESHKUMAR, THEKKEDATHU VATTAKATTU
KOVILAKAM, CHERTHALLA KIZHAKKUM MURI,
KOKKOTHAMANGALAM VILLAGE, CHERTHALA TALUK.
*IT IS RECORDED AT THE RISK OF THE APPELLANT THAT NOBODY ELSE
NEED BE IMPLEADED IN THE PLACE OF FIRST APPELLANT, AS PER ORDER
DT. 11/2/99 ON MEMO DT. 8/2/99 (CF.619/99) .
BY ADVS. SRI.N.VISWANATHA IYER,
SRI.N.K.SUBRAMANIAN,
SRI.S.ANANTHAKRISHNAN.
RESPONDENTS/APPELLANT/4TH DEFENDANT AND RESPONDENT 2/
2ND DEFENDANT:
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1. SEKHARA PANICKER, VATHYATTU VEETTIL,
CHERTHALLA KIZHAKKU MURI, KOKKOTHAMANGALAM VILLAGE.
2. NARAYANAN UDAYA VARMA THAMPAN,
THEKKEDATHU KOTTUNGAL KOVILAKATHU,
CHERTHALLA KIZHAKKUMURI, KOKKOTHAMANGALAM MURI,
CHERTHALLA TALUK, PRESENTLY RESIDING AT
"THILAKAM", CHALAKUZHI LANE, PATTOM,
THIRUVANANTHAPURAM.
S.A. NO.855/1996-B:
**ADDL. RESPONDENTS 3 AND 4 IMPLEADED:
3. M.R. VENUGOPAL, AGED 61 YEARS, S/O. LATE RAVIVARMA THAMPURAN,
KATTUNGAL KOVILAKOM, POST VARANADU, CHERTHALA.
4. K.N. SURENDRA NATHA VARMA,S/O.LATE KERALAVARMA KOVILADHIKARIKAL,
`THRIVENI', CMC XI, POST CHERTHALA.
**ADDL. R3 & R4 ARE IMPLEADED AS PER ORDER DTD. 25/1/10
IN I.A. 170/10 OF R.S.A.
***ADDL. R5 IMPLEADED:
5. P. MOHANDAS, (56),S/O. MADATHIPARAMBIL PRABHAKARAN NAIR,
RESIDING AT KARTHIKA, MARUTHORVATTOM.P.O., CHERTHALA.
***IS IMPLEADED AS ADDL. R5 AS PER ORDER DT. 3/8/11 IN I.A. 2543/10.
R1 & ADDL. R5 BY ADV. SRI.K.V.SADANANDA PRABHU,
ADV. SOMASUNDARA MENON,
ADDL. R3 & R4 BY ADVS. SRI.P.VIJAYAKUMAR,
SRI. C.R. REGHUNATHAN,
SRI. M.V. ASHIM.
THIS SECONDAPPEALHAVING BEEN FINALLY HEARD
ON 14/10/2011, THE COURT ON 19/11/2011 DELIVERED
THE FOLLOWING:
**** ADDL.R6 IMPLEADED
6. VARANADU DEVI TEMPLE, VARANADU P.O, CHERTHALA,
ALAPPUZHA DISTRICT- 688 539, REPRESENTED BY ORRALEN AND
SENIOR MEMBER OF HOPUZHA KOVILAKAM,
SRI.K.N.BALAKERLAVARMA, AGED 73 YEARS,
S/O.KERALA VARMA THIRUMULPADU,
KOPUZHA KOVILAKAM, NOW RESIDING AT 'KERALA VILASAM',
VARANADU P.O., KOKKOTHAMANGALAM VILLAGE, CHERTHALA-688 539.
**** IS IMPLEADED AS PER ORDER DATED 23.02.2012 IN I.A.NO.3024/11.
SD/
ASSISTANT REGISTRAR.
ADDITIONAL R6 BY ADV.SRI.P.VIJAYAKUMAR
S.A. NO.855/1996-B:
APPENDIX
PETITIONERS' ANNEXURES:- NIL.
RESPONDENT'S ANNEXURES:-
ANNEXURE I:PHOTOGRAPH OF THE NEWS CONSTRUCTED OFFICE CUM GUEST HOUSE.
ANNEXURE II: PHOTOGRAPH OF THE NEWLY CONSTRUCTED STORE BUILDING.
ANNEXURE III: ANNUAL BUDGET FOR THE YEAR 2009-2010.
ANNEXURE IV: STATEMENT OF ACCOUNTS OF THE ANNUAL FESTIVAL 2011.
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY//
P.A. TO JUDGE
Prv.
P. BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - -
S.A. No. 855 of 1996
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 19th day of November, 2011.
JUDGMENT
The second plaintiff in O.S.53 of 1984 and the additional fifth defendant therein are the appellants before this court. The parties and facts are hereinafter referred to as they are arrayed before the trial court.
2.Varanadu devaswom and its assets belonged to two kovilakams, namely, Koppizha Kovilakam and Thekkedathu Kovilakam or in other words one can say that the two kovilakams were the Ooralans of the temple. Plaintiffs are members of Koppizha Kovilakam and the first and second defendants are members of Thekkedathu Kovilakam. The temple is a private one of the Kovilakams. By agreement dated 14.2.1089 M.E. and registered as No.559 of Vaikom Sub Registry Office, there was an arrangement made regarding the Ooraymaship of the two Kovilakams. Since then, the S.A.855/1996. 2 affairs of the temple are being carried on in turns. Disputes arose between the two kovilakams which led to the filing of O.S.633 of 1115 before the District Court, Alleppey. The suit was compromised and Ext.A1 dated 5.5.1117 was executed. As per Ext.A1, members of each Kovilakam was to be in charge of the administration and management of the temple in turns for eight years each. Things went on smoothly in terms of Ext.A1 till 1959. In 1959, the first defendant assumed management of the temple. Quite contrary to the terms of Ext.A1 and against the norms, usage, precedents and custom of the temple, the first defendant inducted strangers for the management of the temple. He continued till 1967. But his term of office proved detrimental to the Devaswom. It is claimed that on 2.11.1967 the Karanavans of the two Kovilakams entrusted the administration of the temple to the second plaintiff. He carried on till 1973. As per Ext.A2, he surrendered the management and administration of the temple to the Ooralans. Subsequent to that the first, third and fourth defendants styling themselves S.A.855/1996. 3 as President, Vice President and Secretary were carrying on the administration. According to the plaintiff, the first and third defendants are only puppets in the hands of the fourth defendant and the entire show is being run by him. The administration was not in terms of the Udampady already made mention of but according to the whims and fancies of the fourth respondent. The three of them squandered the wealth and assets of the devaswom and their acts are contrary to the interests of the Devaswom. Several misdeeds and mishappenings which occurred are stated in the plaint. Ultimately, it is prayed that since it has become necessary to streamline the administration and management of the temple and affairs of the Devaswom, a scheme may be framed by the court, so that the Ooralans can properly manage the temple.
3. The fourth defendant resisted the suit. He disputed the rights of the plaintiffs and Kovilakams over the devaswom. The plaintiffs have no proprietorship over the property of the temple and they are not Ooralans of the S.A.855/1996. 4 temple. He claimed that the Devaswom is a public trust. The socalled litigations and compromise entered into therein are not binding on the public and the fourth defendant. The temple is a public temple. The senior most members of the kovilakams have recognized and accepted that it is a public temple and inducted worshippers for the management of the temple. As per the udampady relied on by the plaintiffs, the exclusive rights enjoyed by the two kovilakams came to an end and a Bharana Samithy came into existence to manage and administer the affairs of the temple. Allegation of misappropriation of amounts and non-co-operation are denied by the fourth defendant. He claimed that proper accounts are being maintained and being a public trust, the suit will not lie. In short, his contentions are that the temple is a public temple and except that the kovilakam may enjoy the Ooraymaship, they have no other rights.
4. Defendants 2 and 3 remained ex-parte and the fifth defendant supported the plaintiffs. S.A.855/1996. 5
5. On the basis of the above pleadings, issues were raised. The evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts.A1 to A26 from the side of the plaintiffs. The contesting defendants had D.Ws. 1 to 7 examined and Exts.B1 to B23 were marked. On an appreciation of the evidence in the case, the trial court came to the conclusion that the temple is a private temple and since a scheme is necessary, passed a decree as follows:
"In the result a decree is passed in the following terms:
1. Holding that the scheduled temple belongs to members of Koppizha kovilakam and Thekkedathu kovilakam a scheme is allowed to be framed for the management of the same through the representatives of the said two families.
2. Defendants who are in management of the temple are allowed to be removed from office.
3. On framing a scheme and in constitution of a new administrative body for the temple the defendants in management of the temple has to S.A.855/1996. 6 surrender the temple and its assets to such body to be constituted.
4. A settlement of account with respect to income, assets and liabilities of the temple as prayed for is allowed and amount, if any, found due from any of the defendants is allowed to be realised on behalf of Devaswom.
5. Until a new scheme is framed and accordingly a new administrative body is set up 4th defendant will continue to manage the affairs of the temple subject to the following conditions.
(a) 4th defendant has to submit a report with respect to assets and liabilities of the temple as on date.
(b) 4th defendant has to submit periodical accounts once in a month with respect to the income and expenditure of the temple.
(c) Balance amount, if any, belonging to Devaswom as per the account furnished is to be remitted in court.
(d) 4th defendant shall administer only routine day today administrative affairs of the temple and with respect to matter other than routine affairs the 4th defendant has to secure court sanction.
S.A.855/1996. 7
(e) With respect to income and expenditure of temple 4th defendant has to issue receipts and written vouchers and proper accounts are to be maintained regarding the same and the same are to be made available for scrutiny.
(f) If so required, 4th defendant will be set liberty to withdraw amount if any deposited in court for the purpose of temple on his application.
(g) If there is any default on the part of the 4th defendant in abiding by the above directions the management of the temple will be taken over through a Receiver to be appointed by court.
(6) Plaintiff and defendants are at liberty to move for passing a final decree and for framing a scheme as provided above and in that regard they are at liberty to submit draft scheme for consideration of court.
(7) Parties directed to suffer their respective costs."
6. Aggrieved by the decree of the trial court, the fourth defendant carried the matter in appeal as A.S.71 of 1994 before the District Court, Alappuzha. The lower appellate court after an evaluation of the materials on S.A.855/1996. 8 record chose to differ from the trial court regarding the nature of the temple and held that the temple is a public temple and modified the preliminary decree passed by the trial court as follows:
"In the result, this appeal is allowed in part reversing and modifying the preliminary decree passed by the lower court as follows:
(a) Finding of the lower court that the Varanad Devasom belongs to the Members of the Koppizha Kovilakam and Thekkedathu Kovilakam is set aside.
(b) It is declared that Varanad Devaswom is a public trust by conversion.
(c) A scheme will be formulated after allowing parties to file draft schemes, to adduce evidence if any, and after hearing them. The parties will file draft scheme within two months from the date of this judgment before the court below.
(d) A qualified auditor shall be appointed on the expenses of Devaswom for auditing the accounts from the date of suit up to the date of this judgment.
S.A.855/1996. 9
(e) The liability of the present Manager will be settled on the basis of the audit report.
(f) If any amount is found due from the Manager the new committee to be elected as per Scheme to be framed is allowed to realise the same on behalf of the Devaswom.
(g) On formulating the scheme a fresh election will be held for electing the office bearers and the present office bearers have to hand over charge to the newly elected committee.
(h) Till the new committee is elected the present Bharansamithi is allowed to function.
(i) The present Manager is directed to keep separate accounts showing the income and expenditure of Devaswom from the date of this court till handing over charge to the new committee.
(i) All other questions are left open to be decided at the time of passing of the final decree."
7. It is the above judgment and decree that are assailed in this second appeal.
S.A.855/1996. 10
8. Notice is seen issued on the following questions of law:
"(a) Is Varanattu Bhagavathi Temple a public or private trust?
(b) Has it become a public trust by conversion?
(c) Was the lower appellate court right in framing a scheme for it as if it is a public trust?"
9. Learned counsel appearing for the appellant pointed out that the appellate court went wrong in holding that the temple is a public temple upsetting the views of the trial court that it is a private temple. Merely because the public are allowed to worship or association of some of the members in the management by itself are not sufficient to stamp the temple as a public temple. The Bharana Samithy or the Managing Committee has only the status of a Samudayam or Manusham and the proprietary right of the temple and its assets continued with the Kovilakams. Admittedly, the two kovilakams are the Ooralans of the temple. The view taken by the lower appellate court that S.A.855/1996. 11 they are only Managers and nothing more is perverse. So is the further finding of the lower appellate court that whoever is in management is termed as Ooralans. According to learned counsel, Ooralan enjoys certain privileges and rights over the temple. In support of the contention, the learned counsel relied on the decisions reported in Narayanan Narayanan Unni v. Sankaran Vasudevn Nambudiri (11 TLR 197) and Narayanan Godavarman Thampan v. Lekshmikutty Amma Narayani Amma (26 TLJ 1406). Reliance was also placed on the decision reported in Arumughanainar Pillai v. Bhagavathy Amma (1949(29) TCLR 70) for the proposition that Ooraymaship is trusteeship and is not transferable or divisible.
10. Learned counsel went on to point out that the finding of the court below that the temple is a public temple is quite unwarranted. There is no proof of any dedication to the public. Admittedly the temple belonged to the Kovilakams, who had Oorayamaship over the same. They S.A.855/1996. 12 could appoint persons for management of the temple and the constitution of the Bharana Samithy and Managing Committee has to be viewed from that angle and they are not more than 'Samudayam' or 'Manushyam'. They are under the control of the Ooralans and do not hold independent office. May be that public may make contributions to the temple. These isolated facts by themselves are not sufficient to hold that the temple is a public temple. The trial court has appreciated the evidence in the proper perspective and had rightly held that it is a private temple. In support of his contention that the temple is a private temple, learned counsel relied on the decisions reported in Bagawan Din v. Har Saroop (AIR 1940 PC 7), Ramaswami v. Commr. H.R. & C.E. (AIR 1964 Madras
317), Kunhananda Nambiar v. Kunhappa Nambiar (1961 K.L.J. 1141), Kunhunni Nambudiripad v. Cochin Devaswom Board (1964 K.L.T. 1034), G.G.V. Narasimha Prabhu v. Asst. Commissioner, H.R. & C.E. (AIR 1977 SC 1192) and Thanumalayaperumal Mudaliar v. Commr. S.A.855/1996. 13 H.R. & C.E. (1975(2) MLJ 310). Thus, it was contended that the lower appellate court was in error in holding that the temple is a public temple.
11. Learned counsel for the contesting respondents tried to support the finding of the lower appellate court that Ooralans as rightly noticed by the lower appellate court are not more than Managers. Ooralans cannot claim ownership over the temple. At best he is entitled to be in management of the temple and he is infact in the position of trustee and holds no higher right. Surprisingly enough, learned counsel also went on to contend that anyone in management can be called as an Ooralan. Therefore, it is urged that the contentions urged by the appellants have no basis. As regards the nature of the temple, learned counsel contended that there is overwhelming evidence to show that the temple is a public temple. Learned counsel relied on various decisions to point out the test to be applied to ascertain whether the temple is to be classified as public or private. The further contention S.A.855/1996. 14 was that once it is held that the temple is a public temple, relief can be claimed only by taking recourse to Section 92 of the Code of Civil Procedure.
12. The essential question that arises for consideration is whether the temple is a public or private temple. The second question that may arise for consideration is even assuming that the temple is a public temple, what are the rights of an Ooralan and finally if it is found that the temple is a public temple, can a scheme for administration of the temple be framed only by taking recourse to Section 92 of the Code of Civil Procedure.
13. Before going into the details and evidence in the case, one may first note the factors which weighed with the trial court in coming to the conclusion that the temple is a private temple. They are, (i) Founded by the two Kovilakams, (ii) Earlier in 1117 and 1118 M.E. members of the Kovilakams managed and administered the Devaswom and the local people had no say as is evident from Ext.A7, S.A.855/1996. 15
(iii) The appointment and removal of the employees of the temple vested with the Ooralans, though it has to be on the recommendation of the Bharana Samithy, (iv) There is absolutely no evidence to show that prior to 1959 outsiders had any right in the management, (v) In Travancore area the presumption is a private temple, unless shown otherwise, (vi) Relying on Arumughanainar Pillai's case (supra), 20 TCR 246, Rajasekharan Naicker v. Govindankutty Naicker (1983 K.L.T. SN.16 Case No.24) it was held that the temple was a private trust and the first defendant in 1959 had the status of a trustee only. He independently could not bring about a change and convert a private trust into a public trust without the concurrence of the other trustees.
14. Now it will be useful to refer to the appellate court judgment. It found that the temple is a public temple. The reasons given are (i) it was by Ext.B13 a Bharana Samithy was constituted with a membership of 35 persons and how those persons are to be inducted into the Bharana S.A.855/1996. 16 Samithy. Further, an Executive Committee of nine members is to be constituted for the administration of the Devaswom,
(ii) Public allowed to worship in the temple as a matter of right and Exts.A14 and A15 publications clearly indicate that public contributions were invited and received, (iii) the main source of income of the temple was from public and the income from the Devaswom assets was very meager, (iv) the temple was not within the compound of the Kovilakams,
(v) the structures and ceremonies, functions and festivals conducted with public participation and contribution, (vi) Keys of Thirvabharanam not with the members of the Kovilakam alone, but also with the members of the public,
(vii) Going by Ext.A21 order of the Taluk Land Board, the Taluk Land Board has declared the institution as a religious institution of public nature, (viii) Ext.B22 notice issued to the Devaswom under Rule 4 of the Jenmikarm Payment (Abolition) Rules, 1961 cagetorised the Devaswom as a religious institution of public nature, (ix) The evidence disclosed that the five ingredients to be satisfied as per the S.A.855/1996. 17 decision in G.S. Mahalaxmi v. Shah Ranchhoddas (AIR 1970 SC 2025) to categorise the temple as a public temple is satisfied in the present case.
15. As could be observed from the above discussion, the main issue that arises for consideration is whether the temple in question is a public temple or a private temple.
16. Religion is not defined anywhere, not even in the Constitution, though Articles 15, 25 and 26 deal with topic of religion. It is not susceptible of any rigid definition. According to the Apex Court religion is a matter of faith with individuals or communities and it is not necessarily be theistic. Religion may not only lay down code of ethical rules for its followers to accept, it may prescribe rituals and ceremonies and mode of worship which are regarded as an integral part of religion. Religion is defined as follows:
"A system of faith or worship usually involving belief in a supreme being and usually containing a moral or ethical code especially, S.A.855/1996. 18 such a system recognized and practiced by a particular church, sect or denomination."
17. In Law Lexican by P. Ramanath Iyer, it is observed as follows:
"Virtue, as founded on reverence of God, and expectation of future rewards and punishments; a system of divine faith and worship as opposed to others. That habit of reverence towards the Divine Nature, whereby we are enabled and inclined to serve and worship him, after such a manner as we conceive most acceptable to him is called religion."
18. In Words and Phrases Vol. 36A religion is defined as follows:
" "Religion" has reference to one's views of his relations to his Creator and to the obligations they impose of reverence for his being and character, and of obedience to his will."
Dr. Radhakrishnan defined religion thus:
"Religion is a specific attitude of self itself and no other though it is mixed up generally with S.A.855/1996. 19 intellectual views, aesthetic forms and moral valuations."
19. Hindu religion has three aspects, theology, ritual and mysticism. Theology deals with nature and functions of God. Rituals are certain acts and processes to establish link between the visible and invisible. Mysticism is the desire to realise 'Moksha'. According to Hindu religious belief, each man reaps as he sows, his present being determined by the past, and future being shaped by the present.
20. The word Hindu as such does not denote a religion or community. It came to be used to refer to various categories of people for the purpose of personal law. It is extremely difficult to say who a Hindu is and the answer lies in observance rather laying down any test.
21. The history of origin of Hindu religion dates back to 5000 or more years. The word Hindu is derived from the name of the river Indus, which flows through the northern India. In ancient times, it was known as Sindhu, S.A.855/1996. 20 but the persons who migrated into India called the river Hindis and the land Hindustan and the inhabitants Hindus. Thus, the religion followed by Hindus came to be called Hinduism. It was earlier believed that the basic tenants of Hinduism were brought to India by the Aryans, who invented Indus Valley civilization and settled down in the Banks of Indus river about 2000 years ago. But this theory is now treated as a myth.
22. According to Puranas, image worship in temple is believed to have commenced in 'Threthayuga' and subsequent periods. Image worship though was open to all castes, it was not considered to be the ideal and purest form of worship. Temples were intended to be worshipped by all people of all castes.
23. Interestingly the temples in Kerala are thanthrik representation of human body. Interestingly enough in Chapter XIII of Bhagavat Gita, it is stated as follows:
S.A.855/1996. 21
"
:
:"
meaning - "
."
This body, Oh son of Kunthi, is called in field ( ) and he who knows it, is called the Kshethranja.
24. There are authoritative sources regarding the structures needed for an ideal temple. The temples in Kerala differ considerably from the other parts of the country. The concept of private temple is more in vogue in Kerala. It was not unusual at all for a Namboodiri or Nair family to set apart a particular portion of the house or compound for worship. One significant aspect is that the 'Thanthri' of the temple is an important person and has a major role to play in the matters relating to all aspects of a S.A.855/1996. 22 temple. The 'Santhikaran' of the temple has also a significant role to play and the attraction of the temple to a great extent is determined by proper conduct of poojas and all rituals and ceremonies done by him.
25. In Malabar and Aliyasanthana Law by P.R.Sundara Aiyar a chapter is devoted for dealing with matters pertaining to temples. The author says that temples are said to be of four classes, namely, (i) ancient temples founded by Parasurama, (ii) temples founded by Rajas, (iii) temples founded by village communities and (iv) temples founded by individuals. According to the author, the first two classes of temples do not differ much from each other and there is no difficulty in classifying them as public institutions. However, that is not so in cases of institutions falling in classes (iii) and (iv). It may either be public or private. It is not easy to decide whether they belong to one or other class.
26. History of Kerala by K.P. Padmanabha Menon, Vo.IV at page 65 also refers to the four classes of temples in S.A.855/1996. 23 Malabar. According to the author, the chief officers in the temple are termed as 'Oorallers' and they managed through their delegates called 'Samudayams' or 'Manushyams'. The author would go on to say that Ooralans are infact in the position of trustees and they are expected to administer the affairs of the temple as a prudent trustee. According to Travancore State Manual, Vol. IV, page 245, it is stated that originally the temples in the State were managed by Ooralers. It further goes on to say that they administer the temple either directly or through their delegates 'Samudayams' or 'Manushyams'.
27. There is no presumption that the temple is a public or private temple. The issue has to be determined with reference to the facts of each case.
28. In Hindu Law of Religious and Charitable Trust by B.K.Mukherjea, Fifth Edn., at page 187 under Note 4.39A it is noticed that the origin of the temple, the manner in which its affairs were managed, the nature and extent of the gifts received by it, rights exercised by devotees in regard S.A.855/1996. 24 to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple, are factors that tend to establish whether the temple is a public or private one. Referring to various decisions, the author refers to certain tests laid down as guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature. They are, "(1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right;
(2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder dos not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large;
(3) Where, however, a document is available to prove the nature and origin of the endowment S.A.855/1996. 25 and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature;
(4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by the members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment."
29. In the Law of Hindu Religious and Charitable Endowments by Varadachari, 2nd Edn. at page 17, it is stated that endowments may be either public or private. The essential distinction, according to the author, between a public and private endowment is that in the former, the beneficial interest is vested in an uncertain and fluctuating body of persons either the public at large, or some S.A.855/1996. 26 considerable portion of it, whereas in a private endowment the beneficiaries are definite and ascertained individuals or a definite class which can be easily ascertained at any point of time. The learned author, at page 37, mentions the various tests evolved from judicial decisions that are to be adopted for judging whether an endowment is a public or private. They are as follows:
"19. (1) (a) the nature of the objects and purpose of the funds;
(b) the nature of dedication; and
(c) the existence of reversionery rights in the donor.
(2) The user by the public for worship and devotion.
(3) The association of strangers or outsiders with members of the founder's family in management. (4) The votive offerings from the public. (5) Character of worship.
(6) The appointment of Archakas and other temple servants.
(7) Subscriptions by the public for repairs or extensions to the temple.
S.A.855/1996. 27 (8) The annexure of a Dharmashalas or a Sadavari to the temple, which is open to the Hindu public.
(9) Remission of land revenue on the temple-site. (10) Supervision by native rulers and Government under the Bengal Regulation of 1810 and Madras Regulation of 1817.
(11) Size and nature of the temple and mode of its construction.
(12) Grant of land or cash by the rulers and the like."
30. Hindu Law and Usage by Mayne, 14th Edn. at page 1278 it is observed as follows:
"In order to ascertain whether a trust is a private and if the following conditions are fulfilled, (1) If the beneficiaries are ascertained individuals, (2) If the grantor has been made in favour of an individual and not in favour of a diety, (3) The temple is situated within the campus of the residence of the donor, (4) If the revenue records or entries suggest the land being in possession of an individual and not in the deity. On the other hand, an inference can be drawn that the temple S.A.855/1996. 28 along with the properties attached to it is a public trust:
(1) if the public visit the temple as of right. (2) If the endowment is the name of the deity.
(3) The beneficiaries are the public. (4) If the management is made through the agency of the public or the accounts of the temple are being scrutinized by the public.
Merely, because the festivals are celebrated or sadhus and other persons visiting the temple are given food and shelter or that the public are permitted to visit the temple it is not indicative of the temple being a public temple. In South India except in Kerala is a presumption that a temple is a public temple. there is no such presumption in Kerala State as that State comprised mostly of the territory of the erstwhile State of Travancore whee the existence of private temples was recognised.
This presumption was held to apply to temples in the district Kanyakumari in Tamil Nadu though it formed part of the erstwhile State of Travancore. The family idols are not however chattels or the property of the family. They are S.A.855/1996. 29 legal entities having, within limits, independent rights."
31. In Halsbury's Laws of England, Vol.48, 4th Edn. at page 428 Note 630 public trusts are defined as follows:
"630. Pubic trusts. Trusts for public purposes are either:
(1) charitable, in which case they are governed by the law relating to charitable trusts, or (2) for public objects which are not of a charitable character.
With certain exception, trusts for public objects which are not of a charitable character are invalid if they infringe the law which restricts the creation of perpetuities, and it seems that, even if they do not infringe the law against perpetuities, such trusts will not in general be recognised by the courts except in so far as they are for the benefit of ascertained or ascertainable beneficiaries.
Certain trusts which might appear to be public charitable trusts are in fact private trusts. In particular, a trust for the benefit of a group of persons, however in numerous whose common S.A.855/1996. 30 and distinguishing quality is their relationship to a particular individual or individuals dos not as a general rule constitute a public charitable trust, even though its purposes are such that it would have been a valid charitable trust if the range of potential beneficiaries had extended to the community at large or a section of it."
At Note 631, private trusts are also dealt with, which reads as follows:
"631. Private trusts.- Within the category of private trusts come trusts for the benefit of particular individuals, whether or not immediately ascertainable, or for the benefit of some aggregate of individuals ascertained by reference to some personal relationship, and trusts for the benefit of particular animals and for the maintenance of tombs not forming part of a church, but not trusts for the benefit of the public or a section of the public.
Private trusts are enforceable by the beneficiaries, whereas public charitable trusts are enforceable at the instance of the Attorney General."
S.A.855/1996. 31
32. In Halsbury's Laws of India, Vol.29(2), at page 38 Note 290.031, it is mentioned as follows:
"The most fundamental difference between private and public trusts depends upon the character of the person for whose benefit they are created. The essential difference is that the beneficiaries are defined in the former and ascertained individuals or who within a definite time can be definitely ascertained, but in the latter the beneficial interest must be vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description. If the class of persons is uncertain, it is a public trust. Certain trusts that might appear to be public charitable trusts are in fact private trusts. In particular, a trust for the benefit of a group of persons, however numerous, whose common and distinguishing quality is their relationship to a particular individual or individuals does not as a general rule constitute a public charitable trust, even though its purposes are such that it would have been a valid charitable trust if the range of potential beneficiaries had extended to the S.A.855/1996. 32 community at large or a section of it. In a public trust, the beneficiaries are an uncertain and fluctuating body and the trust itself is of a permanent and indefinite character and is not confined within the limits prescribed to a settlement of a private trust. It is the extensiveness of object which affords some indication of the public nature of trusts. The true criterion for deciding whether a particular trust is or is not of a private nature is whether the trust is or is not for the benefit of individuals."
33. One may now refer to the decisions cited by the learned counsel for the appellant in this regard. In the decision reported in Sarjoo v. Ayodhya Prasad (AIR 1979 Allahabad 74) it is observed as follows:
"So also the mere fact that the public were allowed to worship in the temple and also performed the Shringar is not conclusive on the point whether the temple was a public endowment. Such user is only one of the many other salient factors which have to be taken into account in determining whether the endowment had been private or public. Worshippers are S.A.855/1996. 33 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 paid of forfeiture of the temple property as having become property belonging to a public trust.
The mere fact that the managers belong to different families does not militate against the creation of a private endowment. It is possible for a few persons drawn from different families of pandas inter-related with each other, to get together and choose to make a private endowment. If they provide for the management and maintenance etc. of the temple by themselves and thereafter by their own descendants, it retains the character of a private endowment."
34. In the decision reported in Bhagwan Din v. Har Saroop (AIR 1940 PC 7) it was held as follows:
"In these circumstances it is not enough in their Lordships' opinion, to deprive the family of their private property to show that Hindus willing to worship have never been turned away or even that the deity has acquired considerable popularity among Hindus of the locality or among S.A.855/1996. 34 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 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."
35. Reliance was also placed on the decision reported in Kunhanandan Nambiar v. Kunhappa S.A.855/1996. 35 Nambiar (1961 K.L.J. 1141) wherein it was observed as follows:
"We are in respectful agreement with all that has been said by Sir George Rankin in Surendra Krisha Roy's case and would hold, that if there was a valid dedication in favour of the devaswoms concerned, even an unanimous decision among the members of tarwad - whether before or after a severance of status - for the termination of the private trust will be of no avail. The observations of the Privy Council in Konwar Doorganatha Roy's case were essentially based on the concepts of English Law regarding the rights of beneficiaries in a private trust. It has to be noted, that under that law there can be no charitable trust for the benefit of particular individuals or members of a particular family, and that a trust for the establishment of a private chapel, for example, will not be a charity in the legal sense of the word, and will be hit by the rules against perpetuity and remoteness."
36. Reliance was also placed on the decision reported Kunhunni Nambudiripad v. Cochin Devaswom S.A.855/1996. 36 Board (1964 K.L.T. 1034) wherein, after referring to various decisions on the point, it was observed as follows:
"If the temple is found to belong to the appellant's Illom, the location of the temple at some distance away, nearly 30 miles from the seat of the Illom, the existence of a lane formerly and a public road now, by the side of the temple compound, the presentation according to D.W.1 even if true, of a deeasthambham to the temple by a stranger tarwad, these and other considerations however relevant and useful in other cases, are by themselves insufficient to deprive the Illom of its ownership of the temple."
37. In the decision reported in G.G.V. Narashima Prabhu v. Asst.Commissioner H.R. & C.E. (AIR 1977 SC 1192) it was held as follows:
"The temple was one dedicated to or for the benefit of a section of the Hindu Community and as such was covered by the definition in S.6(17). The law is now well settled that the mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer therefrom dedication to the public. The S.A.855/1996. 37 value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. The circumstances in the instant case did not support the inference that Hindus generally used the temple as a place of worship as of right."
38. In the decision reported in Thanumalaya perumal Mudaliar v. Commr. H.R. & C.E. (1975 (2) M.L.J.
310) it was observed as follows:
"The fact that at one particular point of time a small extent of two acres odd was additionally granted to the deity by some strangers cannot alter the nature of the initial grant or the character of the institution from a private one to a public one."
39. Based on the above decisions, it was contended on behalf of the appellant that on going through the evidence in this case, and also the facts and circumstances as disclosed from the evidence, it would be evident that there is nothing to show that there has been a dedication to the public of the temple involved in this suit. S.A.855/1996. 38 Even assuming that outsiders have been associated with the management and administration of the temple, that by itself is not sufficient to hold that there is a dedication. Learned counsel reminded this court that the plaintiffs were the Ooralans of the temple and they could delegate the management and administration to a body of persons who are usually known as Samudayam or Manusham and that cannot be taken as a criterion to come to the conclusion that the temple is a public one. Going by the decisions referred to above, learned counsel also pointed out that the mere fact that offerings are received from the public is also not a ground to hold that the temple is a public temple. It was the above facts, which persuaded the lower appellate court to come to the conclusion that it is a public temple. Learned counsel pointed out that the lower appellate court as misdirected itself in its conclusion.
40. Learned counsel for the respondents placed considerable reliance on the decision reported in S.A.855/1996. 39 Lekshmana v. Subramania (AIR 1924 PC 44) wherein it was held as follows:
"The founder held out and represented to the Hindu public that the temple was a public temple at which all Hindus might worship, and that the inference is that he had dedicated the temple to the public."
41. Reliance was also placed on the decision reported in Ramaswami v. Commr. H.R. & C.E. (AIR 1964 Madras 317) wherein it was held as follows:
"When there is no express dedication, the character of the endowment has to be determined only from the long usage and proved facts which in this case show the temple is a public temple. From ancient times, the public have been worshipping in the temple in an open and unconcealed manner without any objection from the jagirdar and without any permission from him. We are therefore of the opinion that the evidence in this case has totally failed to rebut the strong presumption n the case of temples in our parts (Madras). On the other hand, the positive evidence, both oral and documentary, as well as S.A.855/1996. 40 long usage of the institution clearly prove that the temple is a public one."
42. Based on the above decisions, it was contended that from the custom and practice that is now being followed in the temple and also from the fact that public has been worshipping as a matter of right and at any rate an implied grant could be inferred and the lower appellate court was justified in coming to the conclusion that the temple is a public temple.
43. It may be useful to refer to a few other decisions on the point.
44. In the decision reported in Bala Shankar Maha Shankar Bhattjee v. Charity Commr. Gujarat (AIR 1995 SC 167) it was held as follows:
"All the lands gifted to the deity stand in the name of the deities, in particular large extent of agricultural lands belong to Kalika Mataji. The entires in Revenue records corroborated it. The Gazette and the historical evidence of the temple would show that the village is the pilgrimage S.A.855/1996. 41 centre. Situation of the temples on the top of the hill away from the village and worshiped by the people of Hindus at large congregated in thousands without any let or hindrance and as of right, devotees are giving their offerings in large sums in discharge of their vows, do establish that it is a public temple. It is true that there is no proof of dedication to the public. It is seen that it was lost in antiquity and no documentary evidence in that behalf is available. Therefore, from the treatment meted out to the temple and aforesaid evidence in our considered view an irresistible inference would be drawn that the temple was dedicated to the Hindu public or a section thereof and the public treat the temple as public temple and worship thereat as of right. It is true that there is evidence on record to show that there was a board with inscription thereon that "no entry without permission" and that only Darshan was being had and inside pooja was not permitted. But that is only internal regulation arranged for the orderly Darshan and that is not a circumstance to go against the conclusion that it is a public temple."
S.A.855/1996. 42
45. In the decision reported in Jammi Raja Rao v. Sri Anjaneyaswami Temple Valu (AIR 1992 SC 1110) it was held as follows:
"It is no doubt true that "the mere fact that the public is allowed to visit a temple or thakurdwara cannot necessarily indicate that the trust is public as opposed to private". But as pointed out by this court in Deoki Nandan v.Murlidhar, if the endowment was in favour of the idol itself "proof of user by the public without interference would be cogent evidence that the dedication was in favour of the public.".....
While considering the question whether the suit temple is a public temple or a private temple, it cannot be ignored that the suit temple falls in the area which was formerly part of Madras Presidency. In the greater part of the Madras Presidency, where private temples are practically unknown, the presumption is that temples and their endowments from public religious trusts. Exception is made in respect of Malabar, where the large tarwards often established private temples for their own use and there is no presumption one way or the other. Mundancheri S.A.855/1996. 43 Koman v. Achutan Nair AIR 1980 SC 2036 it has been observed that so far as Tamil Nadu is concerned there is initial presumption that a temple is a public one, it being up to the party who claims that it is a private temple, to establish that fact affirmatively and this initial presumption must be rebutted by clinching testimony and the crucial question is as to whether the public worship in the temple as of right. In the instant case, we find that the said presumption, instead of being rebutted by the appellant, is reinforced by the entries in the Inam Registers as well as by the oral evidence of Dws 1 to 4 with regard to public having free access to the suit temple for the purpose of worshipping the deity.
As pointed out by this court in Narayan Bhagwantrao Gosavi Balajiwale's case the finding that the suit temple is a public temple and not a private one is a finding of fact. In the instant case, the trial court as well as the High Court have found that suit temple is a public temple. The said finding is not open to further scrutiny of this Court unless it suffers from an error of law. we have examined the contentions urged by Shri Sitaramaiah to assail this finding, but we do not S.A.855/1996. 44 find any merit in the same. We, therefore, unhold the finding recorded by the High Court that the suit temple is a public temple and not a private one and that the appellant has failed to establish his case that he is a hereditary trustee of the same."
46. In the decision reported in C.R.Jayaraman v. . Palaniappan ((2009) 3 SCC 425) after referring to the decision in Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas Kalidas (AIR 1970 SC 2025) it was held as follows:
"This court in Deoki Nandan v. Murlidhar held that where idols were installed not within the precincts of residential quarters, but in a private building constructed for that very purpose on a vacant site and where some of the idols were permanently installed on a pedestal within the temple precincts, that is more consistent with the endowment being public rather than private.
Further, a Constitution Bench of this Court in Tilkayat Shri Govindlalji Maharaj v. Sate of Rajasthan held that where evidence in regard to the foundation of the temple is not clearly S.A.855/1996. 45 available, the answers to the questions, namely, are the members of the public 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 and are their offerings accepted as a matter of right will establish the character of the temple. Therefore, according to the above mentioned decision, the participation of members of the public in the darshan in the temple and in the daily acts of worship or in the celebrations of festive occasions are to be very important factors in determining the character of the temple.
In the present case, even though the appellant has contended that it is not possible under the Hindu custom to refuse the entry of the public into the temple, but this contention cannot be supported in the light of the discussions and rationale of the cases mentioned above.
Apart from that, the appellants could not prove by adducing any evidence that the temples were built in their private patta land as was alleged by them and the temples were situated and constructed on their own land. Since the findings arrived at by all the courts below that the S.A.855/1996. 46 temples were public in nature, are questions of fact and based on considerations of material evidence, documentary and oral, in our view, such findings of fact affirmed by the High Court in the first appeal and also affirmed by the Division Bench in the letters patent appeal, until and unless, the appellant could show that the findings arrived at were perverse."
47. In the decision reported in Deoki Nandan v. Murlidhar (AIR 1957 SC 133) it was held as follows:
"It will be convenient first to consider the principles of law applicable to a determination of the question whether an endowment is public or private, and then to examine, in the light of those principles, the facts found or established. The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. The position is thus stated in Lewin on Trusts, Fifteenth Edition, pp.15-16: S.A.855/1996. 47
"By public must be understood such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description. To this class belong all trusts for charitable purposes, and indeed public trusts and charitable trusts may be considered in general as synonymous expressions. In private trusts the beneficial interest is vested absolutely in one or more individuals who are, or within a certain time may be, definitely ascertained......"
Applying this principle, a religious endowment must be held to be private or public, according as the beneficiaries there under are specific persons or the general public or sections thereof.
Then the question is, who are the beneficiaries when a temple is built, idol installed therein and properties endowed therefor? Under the Hindu law, an idol is a juristic person capable of holding property and the properties endowed for the institution vest in it. But does it follow from this that it is to be regarded as the beneficial owner of the endowment? Though such a notion had a vogue at one time, and there is an echo of it in these proceedings, it is now established beyond all controversy that this is not the true position. It has been repeatedly held that it is only in an ideal S.A.855/1996. 48 sense that the idol is the owner of the endowed properties. ..... It cannot itself make use of them; it cannot enjoy them or dispose of them, or even protect them. In short, the idol can have no beneficial interest in the endowment. This was clearly laid down in the Sanskrit text. Thus, in his Bhashya on the Purva Mimamsa, Adhyaya 9, Pada 1, Sabara Swami has the following:
.......... ............
"Words such as 'village of Gods', 'land of Gods' are used in a figurative sense. That is property which can be said to belong to a person, which he can make use of as he desires. God however does not make use of the village or lands, according to its desires. Therefore nobody makes a gift (to Gods). Whatever property is abandoned for Gods, brings prosperity to those who serve Gods."
Likewise, Medhathithi in commenting on the expression "Devaswam" in Manu, Chap.XI, Verse 26 writes:
.......... ..........
"Property of the gods, Devaswam, means whatever is abandoned for gods, for purposes of sacrifice and the like, because ownership in the primary sense, as showing the relationshkp between the owner and the property owned, is impossible of S.A.855/1996. 49 application to gods. For the Gods do not make use of the property according to their desire nor are they seen to act for protecting the same."
Thus, according to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense (Gaunartha), and the true purpose of a gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship. In Bhupati Nath Smrititiratha v. Ram Lal Maitra, ILR 37 Cal 128, it was held on a consideration of these and other text that a gift to an idol was not to be judged by the rules applicable to a transfer to a 'sentient being', and that dedication of properties to an idol consisted in the abandonment by the owner of his dominion over them for the purpose of their being appropriated for the purposes which he intends. Thus, it was observed by Sir Lawrence Jenkins C.J. that "the pious purpose is still the legatee, the establishment of the image is merely the mode in which the pious purpose is to be effected" and that " the dedication to a deity" may be "a S.A.855/1996. 50 compendious expression of the pious purposes for which the dedication is designed."............... In Hindu Religious Endowments Board v.
Veeraraghavacharlu AIR 1937 Mad 750, Varadachariar J. dealing with this question, referred to the decision in ILR 37 Cal 128, and observed:
"As explained in the case, that purpose of making a gift to a temple is not to confer a benefit on God but to confer a benefit on those who worship in that temple, by making it possible for them to have the worship conducted in a proper and impressive manner. This is the sense in which a temple and its endowments are regarded as a public trust.""
48. In the decision reported in Bihar State Board of Religious Trusts v. Bhubneshwar Prasad Choudhary ((1974) 2 SCC 288) it was held as follows:
"(i) The only right which the family had was to have a member of the family as Manager or Shebait and the Shebait was subject to the superintendence and control by a body of outsiders, who were given the power to remove the Shebait if he did not act properly and as such S.A.855/1996. 51 it is decisive of the question as to the public character of the temple.
(ii) The members of the public were associated with the management of the temple and interest in its management was created in them thus bringing the matter directly within clause (g) of Section 2 of the Act.
(iii) The fact that this provision regarding the Panches was to come into effect only after the death of the executants of the deed, does not affect the merits of the question.
(iv) The endowment is in favour of idol itself and in such circumstances proof of user by the public without interference would be cogent evidence that dedication was in favour of the public."
49. In the decision reported in State of Bihar v. Biseshwar Das (AIR 1971 SC 2057)it was held as follows:
"The evidence showed that the temple and the gosbains profited from the increased resort to the temple by the public during the mela period. Yet, the Privy Council held that the general effect of the evidence was that the family had treated S.A.855/1996. 52 the temple as a family property and the mere fact of the members of the public having come to the temple and having made offerings and the mela having been held which gave popularity to the temple and increased its esteem in the eyes of the public and the fact that they were never turned away, were not enough to hold the temple and the properties as a public trust. At page 10 of the report their Lordships observed:
"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 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, the mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication depends on the S.A.855/1996. 53 circumstances which give strength to the inference that the user was as of right. No such evidence of any reliable kind was available to the appellant-Board in the instant case."
50. In the decision reported in G.S. Mahalaxmi v. Shah Ranchhoddas (AIR 1970 SC 2025) the test to ascertain whether the temple is a private or public one was laid down as follows:
"(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 that temple is a public temple?"
S.A.855/1996. 54
51. In the decision reported in Parasamaya Kolerinatha Madam v. Natesa Ahari (2011(4) K.L.T. SN 45 (Case No.44) it was held as follows: "There are two necessary ingredients for a structure or place to be described as a temple under the Act. First is its use as a place of public religious worship. Second is dedication of the structure or place to, or for the benefit of, or use as of right by, the Hindu community or a section thereof, as a place of public religious worship. The mere fact that members of the public are allowed to worship at a place, will not make it a public temple. The Hindu sentiments and the tenets of Hinduism do not normally exclude worshippers from a place of worship, even when it is private or part of a Math. Therefore, the crucial test is not whether the members of the public are permitted to worship, but whether the worship by the members of the public is as of right by the Hindu community or any section thereof, or whether a place has been dedicated a place of public religious worship. The origin of the temple, the manner in which the affairs are managed, the gifts received by it, the rights exercised by devotees in S.A.855/1996. 55 regard to worship therein and the consciousness of the devotees themselves as to the character of the temple, are the factors which go to show whether a temple is a public temple or a private temple. Mere installation and consecration of idols in a place will not make it a place of public religious worship. Where the evidence shows that the disputed property retained the identity as a Math and where gurupoojas (functions celebrating /important days associated with the founder or head of the math) are performed regularly, it will not lose the characteristic of a math and become a temple, merely because idols have been installed and members of a section of Hindu community offer worship. In fact, this fact is now statutorily recognized in the definition of Math in S.6(13) of the Act which makes it clear that a Math includes any place of religious worship which is appurtenant to the institution of a Math. Fact that there are some idols installed in a Math and members of the public offer worship to such idol will not make it a place of public religious worship, that is, a temple, if the other ingredients of a math exist or if it is established to be a premises belonging to a math and used by the S.A.855/1996. 56 math for its purposes. If the property in its origin was a math property, it cannot be treated as a temple merely because the math had installed idols and permitted worship by the members of the community and the premises is used for rendering charitable and religious services. The Division Bench has proceeded on the erroneous impression that existence of an idol in a math property, when worshipped by the members of the community, would convert the math property into a temple."
52. On going through the decisions, one fact becomes very clear. There is no acid test as such to ascertain whether the temple is a public or private one. Each case depends upon its own facts. Obviously, the tests laid down in the various decisions are only guidelines and cannot be treated as a straight jacket formula. Bearing the above aspects in mind, an attempt shall now be made to ascertain whether the evidence discloses that the temple in question is a private or public one.
S.A.855/1996. 57
53. It is true that the two families, namely, Koppizha Kovilakam and Thekkedathu Kovilakam are the Ooralans of the temple.
54. The trial court did not actually consider the impact of Ext.B13. Of course, the lower court does refer to the contentions of the plaintiffs that Karanavans of the two Kovilakams could not have inducted strangers into the management and administration of the Devaswom of the temple. However, the lower appellate court considered the same as a telling circumstance since there was no challenge to the validity or legality of Ext.B13, probably because the second plaintiff was made as the Manager of the Devaswom as a consequence of the terms of Ext.B13. The lower appellate court took that as a ground to hold that thereby the second plaintiff had acknowledged that the public has a right of worship and had a right to be associated with the management and administration of the temple.
55. As rightly noticed by the lower appellate court, Ext.B13 cannot be treated lightly. S.A.855/1996. 58
56. Noticing the contentions of the appellants, it is contended that it is for the Ooralans to appoint a Manager or such other suitable person for the administration and management, who are referred to as either 'Samudayam' or 'Manushyam'. But that does not show that they have abdicated their valuable rights. The ultimate control over the Devaswom and temple continued to remain with the Ooralans and administrative or managing body or committee as the case may be were to act according to the directions of the Ooralans. The Managing Committee and the Administrative Committee are subservient to the Ooralans and therefore merely because strangers are associated with the management of temple is not a criteria to hold that it is a public temple.
57. Though the contention may look attractive at the first blush, it can be seen to be hollow when one goes to the evidence in the case and facts of the case. Here, by Ext.B13, it is not a mere management or administration that is delegated, but something much more than that. May be S.A.855/1996. 59 that the Manager has to submit accounts to the Ooralans and is accountable to them. But whatever that be, Ooralans thought it fit to associate the public in the administration to meet the challenges and situation arising out of the passage of time. True, Ext.B13 by itself may not be a deciding factor, but certainly it is a factor which go in favour of holding that the temple is a public one.
58. The second plaintiff was examined as P.W.1. He speaks about various suits and agreements. He says that in 1959 when an Udampady was executed inducting members from the public for the management and administration of the temple and the Devaswom, he had strong objection to that conduct and he had informed the senior most member of the Kovilakams. In 1967 when Ext.B13 was drawn up, he assumed office as Manager, though the situation had not changed. He says that when he assumed office, he was promised that certain clauses in Ext.B13 would be deleted later. He made a valiant effort to establish that the entry of the public to the temple was S.A.855/1996. 60 restricted, but he failed in his attempt. He asserted that even without utilizing the contributions from the public, the temple and Devaswom had its own funds to run its affairs. But he admitted that for the purpose of putting up certain structures in and around the temple, contributions in large scale was solicited from the public and with public money those structures were put up.
59. There is no evidence regarding the income of the temple. It cannot be disputed that a large number of devotees visit the temple and make their offerings and contributions. Even the evidence of P.W.1 disclosed that amounts have been received from the public essentially for putting up 'Nadapanthal' etc. Even apart from the evidence of P.W.1, for putting up the structures made mention of by him, the Devaswom must have incurred huge expenses and there is nothing to show that the Devaswom had its own income to meet such expenses.
60. The place where the temple is located, the imposing structure of the temple and the unfettered right of S.A.855/1996. 61 any person to go to the temple for worship are facts which would indicate that the temple is a public temple. Ext.A17 is a notice issued by the authorities of the Devaswom requesting the public for funds and informing about the necessity to put up certain structures in the temple. Ext.A18 is a copy of the plaint in O.S. 131 of 1978 which was a suit for money. The plaintiff in the suit is the 'Bharana Samithy' of the temple. Ext.B18(c) is yet another notice informing the public about the decision to have Devaprasnam in the temple. Ext.B18(d) is yet another notice to the public informing them about the remedial measures to be adopted as found in the 'Devaprasnam' and soliciting liberal contributions from the public. Ext.B21 is the proceedings of the Taluk Land Board, wherein it is held that the Devaswom is in the nature of a public trust. Ext.B22 is a notice issued to the Devaswom wherein too it is referred to as a public trust. So also Ext.B23.
61. It is therefore very clear that whatever ceremonies or functions that were held in the temple were S.A.855/1996. 62 informed to the public and contributions were solicited from them. There is nothing to indicate that the worshipers do not have a right to worship in the temple as of right. Infact the evidence is to the contrary. One must remember that a temple which may be private to begin with can by passage of time can acquire the status of a public temple. (See AIR 1956 Madras 166)
62. As already noticed, the trial court based its conclusion on Ext.B13 of the year 1959. It refused to give any legal effect to that document and therefore did not recognise public participation in the administration and management of the affairs of the Devaswom and the temple. In doing so, the trial court omitted to note that there was no challenge to that document. The evidence in the case will clearly show that public have a right of worship in the temple and they offer contributions and offerings which were accepted by the temple authorities and were being utilized for the purpose of the temple. Further, as already noticed, the practice from 1967 of entrusting the S.A.855/1996. 63 administration and management to the Bharana Samithy consisting of members from various segments of Hindu religion cannot be easily ignored. True, they are accountable to the Ooralans, but that does not mean that they are sub-servients to the Kovilakams. It is very evident, on going through the evidence as discussed by the appellate court, that there is public participation in the affairs of the temple and also public worship as a matter of right.
63. It is very significant to note that the second set of keys of the Ara, where ornaments and other valuables of the temple are stored, are with the members chosen from public. If as a matter of fact, the temple was purely a private temple, there was no necessity nor there would have been a practice of handing over the keys to the public. The evidence shows that unless all the keys are utilized, the Ara cannot be opened. The above facts disclosed from the evidence are sufficient to show that the public had a major S.A.855/1996. 64 role to play in the administration and management of the Devaswom and the temple.
64. The following facts stand established from the evidence:
(i) True, the temple to begin with was a private one.
(ii) By passage of time, public had acquired a right to worship in the temple.
(iii) Contributions and donations are accepted and solicited from the public.
(iv) The constitution of the Bharanasamithy and the Executive Committee for the administration and management of the Devaswom and the temple consisting of members from the public shows the association of public with the affairs of the temple.
(v) Two of the keys of the Ara are with the public. S.A.855/1996. 65
(vi) Annual festivals are conducted on a large scale with the active involvement, participation and contribution from the public.
(vii) Public are informed about the various things that take place in the temple and their co-
operation is solicited.
(viii) The fact that statutory authorities have treated the Devaswom as a religious institution of public nature, to which no objections have been taken by the Ooralans.
65. One may now refer to the decision reported in G.S. Mahalaxmi's case (supra), wherein five tests have been laid down to ascertain the nature of a temple. It is noteworthy that the said decision has been followed in various subsequent decisions. There are five tests laid down in the said decision. The case on hand answers all the five tests.
66. The lower appellate court has considered the evidence in considerable detail and has come to the S.A.855/1996. 66 conclusion that the temple is a public temple. The evidence referred to above and also the various factors which have been categorised constitute overwhelming evidence to show that the temple is a public temple. The lower appellate court was right in holding so and the said finding does not call for any interference.
67. What now one has to deal with is the status of Ooralans. There is distinction in law between the Ooralan of a public temple and private temple. The Ooralan of a private temple is said to be the proprietor of the temple. In the case of a public temple, he is a mere Manager. In Malabar and Aliyasanthana Law by P.R.S. Aiyar at page 264 note 161 it is observed as follows:
"If the temple is public the manager or uralan is said to be subordinate to God. He is styled the God's uralan while the uralan or manager of a private temple is said to be the proprietor of it or to possess the uraima over it and the God is said to be the God of the uralan."
S.A.855/1996. 67
68. Normally, the office of an Ooralan from its origin has been hereditary and it vests in a family. They have the right to appoint temple employees. It has been the practice that for the proper management of the temple, Ooralan appoints a Manager, who is usually referred to as a 'Samudayam' or 'Manushyam' and he is accountable to the Ooralans. Though the Manager has considerable power and authorities, he cannot act against the will of the Ooralans. The Ooralans are in the position of trustees and they have no right to alienate the trust property. But they may create subordinate tenures consistent with the custom, usage and practice. They have no power to transfer the office.
69. The position of an Ooralan as already noticed is that of trustee. As far as the public temple is concerned, the observation by the lower appellate court to treat all those persons who are concerned with the management of the temple as Ooralans, cannot be accepted. It cannot be said that members of the Managing Committee or Executive Committee are all Ooralans as if enjoying similar rights as S.A.855/1996. 68 that of co-owners. Ooraimaship vests in a person, who is the karanavan of the tarwad. The consequence is that if that person is removed from the managership of the tarwad that would terminate the Ooraimaship also.
70. The next question that arises for consideration is the status of an Ooralan.
71. One may recollect that there was a classification of temples into two groups, namely, public temple and private temple. The status of an Ooralan as regards these two types of temples is that of a trustee. Usually if the temple is a public temple, Ooralan is subordinate to God. He is styled as God's Ooralan. In case of private temples, Ooralan or Manager of a private temple is said to be the proprietor of it or to possess the Ooraima over it and the God is said to be the God of the Ooralans.
72. Ooralans may manage the temple affairs through their delegates called 'Samudayam' or 'Manushyam'. However, the sovereign had 'melkoyma' right over the same. But that 'melkoyma' right did not allow S.A.855/1996. 69 the sovereign to totally dispossess the Ooralans or take possession of the temple or its property. However, it may have to be noticed that the temple or its properties cannot be said to be the property of Ooralan.
73. Normally, the office of Ooralan is hereditary and it vests in a family. They had the right to appoint temple employees. The Ooralan may appoint a Manager called the 'Samudayam' or 'Manushyam'. But he cannot act against the express will of the Ooralan. Ooralan has no right to alienate trust property. Obviously, they do not have the power to transfer their office.
74. It may so happen that a temple may have more Ooralans than one belonging to different families. In such cases, the Ooraima is sometimes spoken of as vested in the tarwads to which the Ooralans belong. However this misnomer cannot be said to be vested in the whole tarwad. All members do not enjoy the right to interfere with the affairs of the temple. All the members cannot be treated as Managers entitled to exercise right of management. The S.A.855/1996. 70 members of the tarwad only possess the right to succeed to the managership when he becomes the manager of the tarwad. The Karanavan of the tarwad exercises Ooraima right not on behalf of the family but on his personal right and on his own responsibility. The members of the tarwad do not hold a concurrent right. They can at best be treated as future heirs.
75. Learned counsel appearing for the contesting respondents pointed out that Ooralan is nothing but a post, the occupant of which is entitled to be in management of the temple and nothing more. He has no other rights and he is subject to the Managing Committee or the governing body as the case may be. Learned counsel went on to point out that the Ooraima right does not enable the holder to claim the managership of the devaswom, but he can do so only if the executive committee or the managing committee elects him to that post. Going further, learned counsel went on to point out that any person who occupies the post of manager can be termed as Ooralan. At any rate, according S.A.855/1996. 71 to learned counsel, the office is not transferable and that the Ooralan cannot act detriment to the interests of the Devaswom.
76. So far as the contention that the Ooralan cannot act against the interests of the Devaswom, learned counsel for the respondents might be right. But to say that he has no right as such may not be acceptable.
77. In the decision reported in Mundancheri v. Achuthan (AIR 1934 PC 230) the position of Ooralan was considered. It was held as follows:
"In these suits the defendant's predecessors sued as uralans of the temples and they are repeatedly so described in the documentary evidence, and also in the settlement register. The case for the defendant is that uralan means owner, and in the High Court and here reliance was placed on the definition in Dr. Gundert's Malayalam Dictionary, where it is said to mean the proprietor or manager of a temple. It is surmised by Odgers, J., with much probability, that the author belonged to the well known Swiss German Basel Mission on the West Coast. If this definition S.A.855/1996. 72 had been relied on before the Subordinate Judge and had he attached any weight to it, he would no doubt have referred to it in his judgment. As it is, their Lordships cannot regard it as in any way detracting from the weight of the definition in Wilson's well known Glossary, where uralan is said to mean a guardian or manager of a temple, and uraima to be the office of uralan to which is attached the superintendence of the affairs of the temple. As pointed out by Odgers, J., this is the meaning which has been attached to the word uralan whenever it has come before the High court. The Subordinate Judge has cited the following passages from the late Mr. Sundara Iyer's book on Malabar Law, in support of the view that uralan means owner:
"If the temple is public the manager or uralan is said to be subordinate to God. He is styled God's uralan, while the uralan or manager of a private temple is said to be the proprietor of it, or to possess the uraima over it, and the God is said to be the God of the uralan.
......Where the temple is a private institution, the uralan may be practically an owner. In the case of some public temples, he is not even the manager or dharmakartha which is the ordinary signification of the S.A.855/1996. 73 term, but only a subordinate manager acting under another who is the real dharmakartha.
The learned author, who belonged to a Brahmin family long settled in Malabar was one of the leaders of the Madras Bar and afterwards a Judge of the High Court, and his opinions are therefore entitled to great respect, but unfortunately, he died before the question of the ownership of these Nair temples and their endowments had been investigated in the decisions already mentioned. In this case, their Lordships are of opinion that the use of the word "uralan" in the documents exhibited clearly imports a negation of ownership in the uralan, because, as already shown, he is described as uralan of properties which are said to belong to the temples. the Subordinate Judge has relied on the fact that in some of the documents the word udama, which admittedly means owner, is used instead of urralan, but, as pointed out in the judgments of the High Court, the use of the word udama is comparatively recent, and cannot affect the inference arising from the earlier documents. In their Lordships' opinion the effect of the evidence is that the properties standing in the S.A.855/1996. 74 names of the different temples were dedicated fro the support of the temples, the karanavan of the tarwad being the uralan or trustee and the fact that the income from one temple was used for the expenses of another temple, does not affect this conclusion. from the fact that in this, as in other Nair temples, the tarwad has been making no distinction in the application of the income from tarwad and temple properties, and from the general impression that the temples and their properties belonged to the tarwads, the Subordinate Judge has inferred that there was no read dedication of the temple properties, but that for some reason tarwad properties had been put in the names of the temples."
78. In the decision reported in Arumughanainar Pillai v. Bhagavathy Amma ( 1949 (29) TCLR 70) as pointed out by the learned counsel for the respondents, it was held as follows:
"Trusteeship by its very nature is not transferable or alienable. A trustee cannot delegate his office to another, nor can he appoint S.A.855/1996. 75 another as trustee of the same property. such a deed of trust created by the trustee is void ab initio."
79. In the decision reported in Narayanan Narayanan Unni v. Sankaran Vasudevan Namburi (11 TCLR 197) it was held as follows:
"It is contended by 1st defendant that his family who hold an office in the pagoda as Kazhakakar or servants attached to the pagoda, have long been managing the affairs of the pagoda, possessing but a limited income, not as Ooralens but as Manushiyams or agents, and his present allegation that his family are not responsible to any human being, and are the agents of the deity, is opposed to probability. If the 1st defendant's family were the sole parties interested in the Devaswam, they would not have designated themselves, as they have all along done, as Manushiyam, a term which implies the existence of a superior to whom they are subordinate, and the general constitution of the pagodas on the west coast is this: There is a trustee or board of trustees calld Ooralens S.A.855/1996. 76 appointed originally as such by the rules of the country or the founders of the pagoda, in whom the general superintendence of the pagoda and its affairs is vested, and there are subordinate to the Ooralen or Ooralens other officers such as Samudayam or Manushiyam who reside on the spot and actually attend to the transaction of the affairs of the pagoda, karalens or Kachakakars (pagoda servants) and Santies or officiating priests. When the pagoda endowments are small in extent, the offices of Karalen or Kazhakam and Samudayam or Manushiyam are found combined in one and the same family apparently on economical grounds, and instances in which the families of Karalens or Kazhakams have assumed the virtual supreme control owing to the incompetency or apathy of Ooralens, are not perhaps rare, but there cannot be a pagoda without an Ooralen or trustee and as 1st defendant does not pretend that his family were originally the Ooralens, and it is admitted that 1st defendant's family held only the office of Manushiyam - a term synonymous with Samudayam - we must look elsewhere for the Ooralen. Plaintiff's witnesses say that plaintiff's S.A.855/1996. 77 family held the Ooralenship, and took part as such in the transaction of the affairs of the pagoda, and their evidence is materially corroborated by the exhibits c, D, E, F, G, H and I, which we see no sufficient reason to discredit in the circumstances of the case. The 1st defendant does not point out to anybody else as the Ooralen. His allegation is that no Ooralen exists, and the allegation, as already stated, is improbable. the actual management of the affairs of this pagoda being, as found by the Zilla 'Court, vested in the 1st defendant's family as Manushiyam, the plaintiff's family had ordinarily very little to do with the pagoda, and the silence of plaintiff so long as the Manushiyam who may be regarded as plaintiff's subordinae went on smoothly with the management, does not destroy plaintiff's rights of superintendence and supervision or proper occasions."
80. In the decision reported in Narayanan Nambudiripad v. State of Madras (1958 K.L.T. 1095) it was held as follows:
"There is no dispute that there are at least 27 Ooralans for this institution and the provision S.A.855/1996. 78 made in clause 2, without in any way giving any further recognition to their rights is a very serious abridgment on the rights of the Ooralans in the exercise of their hereditary trusteeship. As there has been a very substantial deprivation of the rights of the hereditary trusteeship for all time of the 24 Ooralans who vanish once and for all after the election contemplated under clause 2, it follows as a necessary consequence that the whole foundation of the scheme fails to the ground. The scheme as such offends the rights of the Ooralans as hereditary trustee under Art. 19(1) f."
81. On going through the above decisions, it becomes very clear that the status of an Ooralan is not as projected by the learned counsel for the respondents, but he holds certain rights, which can not normally be interfered with. At any rate, he is in the position of a trustee and if the Ooraimaship is vested in a family, it becomes the hereditary trusteeship. For all practical purposes, at any rate, he is the hereditary trustee entitled to be in management of the S.A.855/1996. 79 temple. The position of a hereditary trustee was considered by this court in the decision reported in Bhanunni v. Commissioner, H.R. & C.E. (Admn.) Department (2001 (3) K.H.C. 900) wherein it was held as follows:
"It has become necessary to ascertain the true position of hereditary trustee with regard to the temple. The attitude of the Board seems to be that the hereditary trustee is only a puppet in their hands and he can do nothing except with the permission or consent of the appropriate authorities under the Act. The question arises as to what are the powers and duties of the trustee when the provisions of the Act and scheme made Ext.P1 are considered.
One may here refer to the decision reported in Manavikrama Samorin Raja of Kozhikode's case. In the said decision, Section 45 of the Act was challenged on the ground that it exceeds the limit of reasonable restriction. Considering the contentions it was held as follows:
"Section 45 has been put in Chapter III of the Act, and that deals with the Commissioner's several powers over the endowments. By Section 20 he is vested with the power of superintendent, besides his other specific S.A.855/1996. 80 powers of control. In such circumstances the trustee cannot complain of unreasonable restrictions on his rights, because the rule is well established that persons committing breaches of trust should be removed from the office. The exercise of power is not without any control; for there is the right of appeal against the actions under Section 45(4). There is also the further safeguard by the issuance of certiorari, against the action being vitiated by excess of jurisdiction, or want of jurisdiction or by disregard of the fundamental principles of natural justice, or by error apparent on the face of the record. The general superintendent over Tribunals exercising quasi-judicial powers, which is vested in the High court under Article 227, affords sufficient scrutiny by courts, and makes the actions authorised by Section 45, reasonable restrictions in the interests of the general public for the purposes of Article 19(5). Therefore, the challenge to the constitutionality of section 45 is not justifiable."
............. ................. A trustee of a religious institution, like any other trustee, should not deal with the property for private advantage or gain. It is also well settled that a trustee is enjoined to obey all the provisions of the trust and all conditions annexed to any S.A.855/1996. 81 powers so given so as to ensure that the trust is properly administered. as long as the trustee discharges his duty in accordance with the accepted notions of law and in terms of the trust, any interference with the affairs of the institution is not called for."
82. As could be seen from above decisions, it follows that the hereditary trustee or Ooralan cannot be sidelined by the so-called Governing Body or Executive Committee which is to supervise the administration and management of the temple. He is entitled to be in management and to carry on the affairs of the temple in consonance with the custom and usage associated with the temple. In the case on hand, it would appear that the two Kovilakams are the founders of the temple though there is no definite evidence in that regard. However, it cannot be disputed that they are hereditary trustees as far as the temple in question having found that the temple is a public temple. The finding of the lower appellate court that the S.A.855/1996. 82 members of the two Kovilakams do not enjoy any privilege therefore cannot be countenanced.
83. It is very vehemently contended on behalf of the contesting respondents that once it is found that the temple is a public temple, then the hands of the courts are tied and reliefs can be claimed only in a suit under Section 92 of the Code of Civil Procedure. Therefore, it was stated that once it was found that the temple involved in the case in hand is a public temple, the court below ought not to have proceeded further and ought to have relegated the parties to take recourse to section 92 CPC for further reliefs. In support of his contention, learned counsel relied on the decision reported in Asscn. of R.D.B. Bagga Singh v. Gurnam Singh (AIR 1972 Rajasthan 263).
84. The contention has no basis. Section 92 of the Code of Civil Procedure reads as follows:
"92. Public charities.- (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the S.A.855/1996. 83 court is deemed necessary for the administration of any such trust, the Advocate General, or two or more person having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil court of original jurisdiction or in any other court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject matter of the trust is situate to obtain a decree-
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee; (cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
S.A.855/1996. 84
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.
(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863), or by any corresponding law in force in the territories which, immediately before the 1st November, 1956, were comprised in Part B States, no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.
(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied Cypres in one or more of the following circumstances, namely:-
(a) where the original purposes of the trust, in whole or in part,-
(i) have been, as far as may be, fulfilled; or
(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no S.A.855/1996. 85 such instrument, according to the spirit of the trust; or
(b) where the original purpose of the trust provide a use for a part only of the property available by virtue of the trust; or
(c) where the property available by virtue of the trust of other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or
(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or
(e) where the original purposes, in whole or in part, have, since they were laid down,-
(i) been adequately provided for by other means, or
(ii) ceased, as being useless or harmful to the community, or
(iii) ceased to be, in law, charitable, or
(iv) ceased in any other way to provide a suitable and effective method of using the S.A.855/1996. 86 property available by virtue of the trust, regard being had to the spirit of the trust."
85. Section 92 can be attracted when the following conditions are satisfied, namely, (i) the trust must be for a public purpose or religious or charitable in nature,
(ii) the plaint must allege that there is breach of such a trust or that the direction of the court is necessary for the administration of the trust, (iii) the suit must not be in the interests of the plaintiff individually, but in the interests of the trust itself, (iv) the relief claimed in the suit must be one of the reliefs mentioned in the Section. It is no doubt true that some of the reliefs prayed for in the suit fall within the ambit of Section 92. But that is not sufficient. The main prayer in the suit was one for a declaration that the temple is a private temple. It was not conceded in the plaint that it was a public trust. On the other hand, what was alleged was that the temple in question belonged to the two Kovilakams and the public had no manner of right over the same. It is well settled that the allegations in the plaint determine the S.A.855/1996. 87 applicability of Section 92. Of course, by ingenuous pleadings, the impact of Section 92 cannot be avoided. But once it is asserted that the trust in question is a private one, and there is nothing to show that the pleadings are made in order to defeat the purpose of section 92, it could not be said that once it is found that the temple is a public temple, the parties will have to be relegated to take recourse to Section 92 for further reliefs.
86. In the decision reported in Kunju Pillai Kurup v. Krishna Kurup (1952 K.L.T. SN 10) this court had occasion to hold that in the case of private trust also the civil court has jurisdiction to frame a scheme for management and administration of the private property. The relief in the plaint was in that manner. It is well settled that in order to attract Section 92, it has to be admitted that the trust is a public trust. When the status of a trust is disputed, Section 92 may not immediately apply. The courts below were therefore justified in coming to the conclusion S.A.855/1996. 88 that the suit is not hit by Section 92. No interference is called for in this regard.
87. It was then contended by the learned counsel for the respondents that since the deity is not a party to the suit, a scheme could not be framed. True, the deity is not a party. In the decision reported in K.K. Menon v. Nataraja Moopanar (1956 K.L.T. 175) it was held as follows:
"In a matter in which the deity is vitally interested the deity should be made a party and if the Shebaits have got any interest adverse to that of the deity, it is necessary that the idol should be represented by a perfectly disinterested person. Necessity, however, has got to be judged on the facts of each particular case and the controversies to which it gives rise. It is open for the court to bring the deity on the party array at the time of framing the scheme if such a course is found necessary."
So the infirmity pointed out by the contesting respondents is easily curable.
S.A.855/1996. 89
88. Counsel appearing on both sides submitted that if this court is to hold that the temple is a public temple and a scheme is necessary for the administration and management of the temple, a scheme may be settled by this court instead of remanding the matter to the court below, which would only further protract the matter.
89. The preliminary decree passed by the lower appellate court deals with several matters. One of them is Clause (c) of the preliminary decree which relates to the formulation of a scheme. The court below has directed the parties to produce draft schemes and adduce evidence in this regard.
90. Since the submission of both sides is that this is to avoid further controversies, it is only proper for this court to permit the parties to file draft schemes before this court so as to finalise a scheme that would be felt appropriate for the management and administration of the temple. However, it is declared that the two Kovilakams are the hereditary trustees of the temple and their rights in that S.A.855/1996. 90 capacity are to be protected. The preliminary decree passed by the lower appellate court is modified to the above extent.
The appeal is disposed of as above.
Post the appeal after one month for filing of draft scheme, if any. In the meanwhile steps to implead the deity will be taken by the appellant.
P. BHAVADASAN, JUDGE sb.