Kerala High Court
Kidangoor Devaswom Represented By vs K.N.Krishnan Namboothiri on 21 August, 2003
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 21ST DAY OF OCTOBER 2015/29TH ASWINA, 1937
RFA.No. 457 of 2003 (D)
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AGAINST THE ORDER/JUDGMENT IN OS 108/1998 of SUB COURT, PALA
DATED 21-08-2003
APPELLANT(S)/PLAINTIFFS:
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1. KIDANGOOR DEVASWOM REPRESENTED BY
BALAKRISHNAN, S/O.NARAYANAN NAIR, AGED 69,
KAROTTU PULICKAL HOUSE, KIDANGOOR.
2. BALAKRISHNAN NAIR, S/O.NARAYANAN NAIR,
AGED 69, KAROTTU PULICKAL HOUSE, KIDANGOOR.
3. SUBRAMANIAN MOOTHATHU SREEKUMARAN
MOOTHATHU, AGED 70 YEARS,
NARAYANA MANGALAM, KIDANGOOR SOUTH.
BY ADVS.SRI.M.NARENDRA KUMAR
SRI.SALISH ARAVINDAKSHAN
RESPONDENT(S)/DEFENDANTS:
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1. K.N.KRISHNAN NAMBOOTHIRI
S/O.NEELAKANTAN NAMBOODIRI,
KONGARAPPALLY ILLAM, KIDANGOOR.
2. * N.S.NAMBOODIRI, S/O.NARAYANAN NAMBOODIRI,
AGED 72 YEARS, HANESWARA PALACE NO.X1,
THRIPPUNITHURA 68201. (DIED LRs IMPLEADED)
3. KRISHNAN NAMBOODIRI, S/O.SUBRAMANIAN
NAMBOODIRI, AGED 45, KALLEMPILLY ILLAM,
KUMMANNOOR, KIDANGOOR.
4. APPU NAMBOODIRI, S/O.NAMPOTHU NAMBOODIRI,
AGED 38, THURUTHI ILLAM, MARIDOM, KADAPLAMATTOM.
5. SASTHA DHARMAN NAMBOODIRI, S/O.SUBRAMANIAN
NAMBOODIRI, OSSERIL, MOONNUKODU BHAGOM,
KIDANGOOR.
6. THRIVIKRAMAN NAMBOODIRI, S/O.NARAYANAN NAMBOODRI,
AGED 60, CHERUVALLY ILLAM, KUMMANNOOR, KIDANGOOR.
7. ACHUTHAN NAMBOODIRI, S/O.SANKARAN NAMBOODIRI,
AGED 78, MULAVELILPURATHU ILLAM, CHEMPILAVU P.O.
8. NEELAKANTAN NAMBOODIRI, S/O.NARAYANAN NAMBOODIRI,
MALAMEL, CHEMPLAVU.
RFA.457/03
9. HAREESWARAN NAMBOODIRI, S/O.PADMANABHAN NAMBOODIRI,
AGED 40, NELLIPPUZHA ILLAM, KIDANGOOR SOUTH.
10. RAMAKRISHNA KURUP, AZHAKATHU BUNGALOW,
MANAKKALA, ADOOR.
11. UNNI, EZHUPPARMBIL, VILAKKUMADAM.
12. O.R.NARAYANAN NAMBOODIRI, ONIYAPPALATHU
KILIMANNOOR P.O.
13. HAREESWARAN NAMBOODIRI, HARIKRISHNA (CHALATHURUTHIL)
MARIATHURUTH P.O., MALLOOSHERIKKARA, KOTTAYAM.
14. SANKARAN NAMBOODIRI, AGED 81, S/O.SANKARAN
NAMBOODIRI, MULAVELIPPURATH ILLAM, CHEMPILAVU,
KIDANGOOR.
15. NEELAKANTAN NAMBOODIRI, AGED 76
KORATTITHARA PRAYAR KARA, KIDANGOOR.
16. VISHNU NAMBOODIRI, AGED 32, S/O.VISHNU NAMBOODIRI,
THEKKUMANA, KIDANGOOR KARA, KIDANGOOR VILLAGE.
17. NAIR SERVICE SOCIETY KIDANGOOR NO.140 N.S.S.
KARAYOGAM REPRESENTED BY C.N.VELAYUDHAN NAIR,
S/O.NARAYANA PILLAI, VADAKKENAKATHU VEETTIL,
KIDANGOOR KARA, KIDANGOOR VILLAGE.
18. REGHUNTHAN NAIR, PRESIDENT SRI.SUBRAHMANYA SWAMY
KSHETRA SAMRAKSHANA SAMITHI, PERUMPADAMBIL,
PERAYAR KARA, KIDANGOOR VILLAGE.
ADDL.19. ACHUTHAN NAMBOOTHIRI, S/O.NARAYANAN NAMBOOTHIRI,
AGED 75 YEARS, KOTTARATHIL ILLAM,
KIDANGOOR P.O., PIRAYAR.
(THE LEGAL REPRESENTATIVE OF THE DECEASED 2ND RESPONDENT IS
IMPLEADED AS ADDL. R19 VIDE ORDER DATED 17.6.10 IN IA.1016/09.)
R.2,3,5& 6,19 BY ADV. SRI.S.VINOD BHAT
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16.10.2015,
THE COURT ON 21.10.2015 DELIVERED THE FOLLOWING:
ANTONY DOMINIC & P.V.ASHA, JJ.
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R.F.A.No.457 of 2003
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Dated this the 21st day of October, 2015
JUDGMENT
Antony Dominic, J.
1.Plaintiffs in O.S.108/98 on the file of the Sub Court, Pala are the appellants. They filed the suit for a declaration that the first plaintiff Devaswom is a public trust of religious and charitable nature and to frame a scheme in respect of the first plaintiff Devaswom for its administration and management. They also sought a declaration that the plaint schedule properties are of the first plaintiff and a decree for the removal of the defendants from the administration and management of the fist plaintiff Devaswom. Further, a permanent prohibitory injunction restraining the respondents from alienating the properties of the first plaintiff Devaswom or the movables kept in the Devaswom building was also sought for. By the judgment and decree under appeal, the suit was dismissed. It is aggrieved by this judgment and decree, this appeal is filed.
RFA.457/03 2
2.Among the various issues which were framed and considered, the main issues are whether the first plaintiff is a public religious trust dedicated to the public and whether the Kidangoor Sree Subrahmanya Swamy Temple is a public temple or is a private temple. Based on the conclusion of the trial court that the temple was never dedicated to the public as claimed by the plaintiffs, these issues were found against the plaintiffs. Relying on the finding on the above issues, the suit was dismissed.
3.The case of the plaintiffs is that Kidangoor Sree Subrahmanya Swamy Temple, (hereinafter, the 'Temple', for short) is situated on the shores of Meenachil river. It is averred in the plaint that the Temple is more than 3000 years old and according to the historians, Gouna Maharshi, a sage who was an ardent worshipper of Lord Balasubrahmanyan, had lived and died there. At that time, a temple for Lord Mahavishnu was being built at Kidangoor by Adiyodi Nair, a local chieftain, to beget children. It is stated that the construction of the temple and consecration of the idols were an act of penance for RFA.457/03 3 hanging an innocent man which was believed to have resulted in the extinction of male members in the Adiyodi family. Adiyodi Nair, it is stated, had a dream in which he was advised to install Balasubrahmanyan instead of Mahavishnu. Accordingly, idol of Lord Balasubrahmanyan was consecrated in the main structure in the south and the idol of Lord Vishnu was shifted to the structure in the north.
4. According to the plaintiffs, for the construction of the temple, artisans were summoned from far away places and during the course of the construction and afterwards, they had settled down in Kidangoor permanently and the description of the families of artisans is given in the plaint. According to the plaintiffs, like other members of the general public, they were also entitled to worship in the temple as of right. The plaintiffs also state that the consecration of the idol was done by the famous Tanthrikal of Tharananaloor Illom and the Santhi is a Purappeda Santhi and there is a Keeshsanthi to assist him. According to the plaintiffs, in order to assist in the performance of poojas and to otherwise attend RFA.457/03 4 to the various matters thereto, Sri.Adiyodi Nair had summoned Naranathu Moothathu, Chalackal Warriayar, Padinjaredath Pisharadi, Varrikkayil Santhi and others and that they, along with their family members, also settled down in Kidangoor. Further, it is sated that Sri.Adiyodi Nair entrusted different responsibilities to the members of these families.
5. It is also stated that since there were no Brahmins well versed in the Vedas for chanting mantras, Sri.Adiyodi Nair summoned Brahmins well versed in the vedas from other places and properties were set apart for the residence of those Brahmins. It is stated that there were 14 such Brahmin families whose entitlement was only to chant vedas and mantras. It is stated that even during the inception of the temple, Hindu devotees of the locality were entitled to worship in the temple as of right. According to the plaintiffs, subsequently, Adiyodi Nair left Kidangoor on a pilgrimage. The case of the plaintiffs is that there was complete dedication of the temple as a public temple. It is stated that after Adiyodi Nair left on pilgrimage, the 14 Brahmin RFA.457/03 5 families which were summoned by him for chanting mantras in the temple assumed the administration and management of the temple, which, according to the plaintiffs, is clearly an act of usurpation which will not clothe them with any authority or ownership of the temple or its assets. According to the plaintiffs, the Ooraima Yogam constituted by the 14 families is a clear act of illegality and was an attempt on their part to give the temple the colour of a private temple.
6.The plaintiffs have also pleaded following factual circumstances in support of their claim:
"12. That the devaswom and the temple and its assets are dedicated to the public and therefore, the hindu devotees are entitled to worship as of right is also clear from the following facts and circumstances:
A. The construction of the Oottupura and the Oottupura Malika were duly done by expending amounts from the Government Treasury which is clear indication in the fact that the temple had been dedicated to the public. At any rate it would clearly indicate that there was no grant of the RFA.457/03 6 temple to the family of defendants 1 to 12 or their predecessor-in-interest.
B. The , , were constructed by the devotees of the locality by expending money on 23rd Kumbhom 1102. The fact that it was constructed by the devotee as of right is clear from the inscription of the name of the devotee in those constructions. This is clearly a circumstance which would go to show that there is no grant of temple in favour of the family of defendants 1 to 12 and that the temple is dedicated to the public.
C. The Gopuram on the western nada and the were constructed by one Karamanappally Raman, Kallelil veettil Raman Pillai and one member of Ozhukayil house. The names of these persons are inscribed on the Gopuram which is also clearly indicative of the fact that the devotees are entitled to as of right put up structures for the upkeep of the temple.
D. The construction of the Padinjarenada, 'Kanikkamandapam' is done by S.Rama Ayyar and the construction of the eastern nada Kanikkamandapam is done by N.G.Narayanan Nair as Devotees of Lord Balasubramoniam. These are all acts done as of right and not with the permission of any of the so-called Ooralars. RFA.457/03 7 E. The so-called Ooralars filed application for Jenmikkaram and Annuity under the provisions of the Land Reforms Act on the allegation that the temple is a Religious Institution of a public nature and that therefore, the right, title and interest of the Institution vested with the Government in consideration of the payment of annuity in perpuity by the Government. This pre-supposes the fact that there is no grant of temple in favour of the so-called Ooralars.
F. The Kanikka Mandapam was constructed at Kottappuram junction by the participation of all the Hindu Devotees of the locality with the donations and other valuables received from them. This is also indicative of the fact that the public namely the Hindu Devotees are entitled to conduct the affairs of the temple as of right and not with the permission of the so-called Ooralars. G. The construction of the Kulikkadavu was undertaken by the Kerala Irrigation Department solely on the basis of the fact that this temple and its assets constituted a public trust and that the beneficiaries of the said trust are the Hindu Devotees of the locality. This would also clearly and indicative that there is no grant of temple to the family of the so-called Ooralars. H. The festival of the temple starts on the Karthika in the month of Kumbhom for a period of 10 days. A committee is constituted for the RFA.457/03 8 purpose of conducting this festival from among the members of the public. The participation of the hindu devotees are as of right and not permissive. Right from the inception of the temple the utsavam is being conducted by the public namely hindu devotees. The contributions received by the participation of the public are also duly accounted by the devaswom manager. In the absence of the grant of ownership in favour of the family of this Ooralars, the participation of the public in the utsava can be taken into consideration to hold that the hindu devotees are entitled to worship in the temple as of right. I. The vilakkumadom was constructed by Panthathala Chidambaram Chettiar and there are 9000 vilakku installed in the vilakkumadom. The name of the said Chettiar is also inscribed in the vilakkumadom.
J. ( conducted every month is of great sanctity. It is also said that participation in it by the hindu devotees would result in the increase in the of Lord Balasubramania. This is also confirmed by the ( . The hindu devotees' participation in the ( right from the inception of the temple. The fact that the hindu devotees are entitled to participate in the ( right from the inception of the temple and that it would result in the increase in the of Lord Balasubramonia would clearly indicate that the temple is a public temple and RFA.457/03 9 that the Ooralars have absolutely no ownership over the devaswom and the temple and its assets. K. One significant aspect is that Ooralars are not entitled to enter the Sreekovil. This is also indicative of the fact that there is no grant of ownership of the temple in favour of the Ooralars.
13. The main source of income of the temple consists of the following-
A. An amount of approximately Rs.50,000/- is received from the Government as annuity and jenmikkaram.
B. The offerings of the Bhandaram consists of not only cash but also gold and silver etc. As submitted hereinbefore, one of the keys of the Bhandaram is entrusted with the members of the Naranathu Moothathu family. This was being done right from the consecration of the idol in the temple.
C. The various offerings by the devotees consists of for the purpose of well being of the temple are received by the Manager. Such amounts would come to approximately one lakh per month for which no proper receipts are being issued by the devaswom manager.
D. The marriage, , are other sources of income and would fetch approximately an amount of Rs.1 lakh per month.
RFA.457/03 10 E. One elephant namely Krishnankutty was offered by the members of the family of Sambhara Madom. The said elephant was offered some 50 years back by late S.V.Harihara Ayyar of Sambhara Madom, Kidangoor. The income that accrued from the said elephant would come to Rs.15,000/- per month."
It is with the above factual averments that the plaintiffs have sought the reliefs mentioned above.
7.The first defendant has filed his written statement. According to the first defendant, the Kindangoor Devaswom and the temple are not public trusts but is a private trust owned and managed by 13 Ooralers who belong to 13 Namboothiri families at Kidangoor. It is stated that formerly there were 14 Ooraler Illoms, of which one Illom extinguished and that at present, there are only 13 Ooralers. The case of the first defendant is that in ancient times, Kidangoor Devaswom was under the control and administration of a Chieftain by name Manayil Adiyodi Nair. There were no issues in the family of Adiyodi Nair and he had an invocation that a Subrahmania temple be built on the southern bank of Meenachil river along with one RFA.457/03 11 Vishnu idol. Thus the idol Bala Subrahmania was built and consecrated, which is the present Kidangoor Sree Subrahmania Swamy Temple and as a result, Adiyodi family was blessed with children. It is stated that following this, others who had no issues also used to donate properties to the temple. At that time, Meenachil Kartha and Thekkumkor Raja were the Rulers in the eastern and western areas respectively of Kidangoor Desom. Adiyodi Nair was very much afraid of these two rulers and apprehended invasion from both sides. Therefore, Adiyodi Nair gave the temple and its properties to the 14 Namboothiri families, which had already settled down at Kidangoor and left that place and did not return. According to the first defendant, from that day onwards, the Devaswom and the temple are owned and managed by the 14 Namboothiri families who are the Ooralers of the temple and presently, there are only 13 such families.
8.It is the specific case in the written statement that Adiyodi Nair or the 14 Namboothiri families never dedicated the temple or its properties to the public RFA.457/03 12 and that the intention of Adiyodi Nair was that it should absolutely vest with the 14 Namboothiri families who were known landlords in whom Adiyodi had absolute confidence that they would administer the temple and its affairs properly. It is also stated that members of the public were not entitled to worship in the temple as of right.
9.While it is admitted that the jenmikkaram and annuity were received from the Government, according to the first defendant, that does not and cannot change the pre-existing character of the temple. It is also stated that construction of the kulikkadavu was undertaken by the Irrigation Department at the request of the Devaswom. It is also stated that for conducting annual festival in the month of Kumbham in a befitting manner, for some years, a committee was nominated each year by the Manager and that after the festival season, this committee automatically terminated. According to the first defendant, voluntary contributions made by the devotees for conducting the utsavam do not make the temple a public temple. It is also averred that no RFA.457/03 13 construction was done in the temple without the permission of the Devaswom and no worshipper could undertake any such construction as of right. Participation in the rituals and shasti and other occasions or donations made will not confer any right to the public. The first defendant contended that these voluntary offerings are made for the blessings of the presiding deity which is a custom from the day Adiyodi Nair gifted the temple to the 14 Namboothiri families.
10.The averments in paragraph 13 of the plaint regarding the source of income in the temple are also explained in paragraph 16 of the written statement. Defendants 4, 5, 7 and 8 have also filed a separate written statement adopting the contentions and averments in the written statement of the first defendant.
11.On behalf of the plaintiff, PWs.1 to 12 were examined and Exts.A1 to A26 were marked. DWs.1 to 4 and Exts.B1 to B9 were marked on behalf of the defendants. Exts.C1 to C3 were also marked. It was RFA.457/03 14 on consideration of the oral and documentary evidence thus adduced that the suit was dismissed by the trial court.
12.We heard learned counsel for the appellants and the learned counsel appearing for the respondents.
13.As we have already stated, the main issue that was considered by the trial court and which arises for consideration in this appeal is whether the temple is a public temple or not. Answer to this question would depend upon our finding on issue Nos.2 and 3. If these issues are found in favour of the plaintiff, then only the other issues arise for consideration; otherwise those issues are really academic. Therefore, we shall first examine the correctness of the findings of the trial court on issue Nos.2 and 3.
14.The fact that the temple was established by Adiyodi Nair is not a matter of dispute. While the defendants would contend that after establishing the temple, Adiyodi Nair gifted the temple to the members of the 14 Namboothiri families with the intention RFA.457/03 15 that the temple shall be maintained as a private temple and that the said status of the temple continues even as on date, the case of the plaintiffs is that Adiyodi Nair had summoned the Namboothiri families from other places on account of their knowledge of the three vedas and their duty was only chanting of mantras. According to the plaintiffs, when Adiyodi Nair left the place on a pilgrimage, the 14 Namboothiri families usurped the management and administration of the temple and since then, are retaining the temple as their private property. From these facts, it is obvious that the temple as established by Adiyodi Nair was a private temple. The question to be examined is whether there was any dedication of the temple by Adiyodi Nair or by anybody thereafter and whether Adiyodi Nair or the Namboothiri families or anybody else have held out to the general public that the temple is a public temple.
15. While examining this question, it would be of relevance to examine the judicial precedents on the point. Though various authorities were cited at the RFA.457/03 16 Bar, we do not think it necessary to burden this judgment with all those and according to us, it would suffice if reference is made to a couple of judgments. Smt.Marua Dei v. Muralidhar Nanda [AIR 1999 SC 329] is a case where proceedings were initiated under section 41 of the Orissa Hindu Religious Endowments Act, 1951 for a declaration that the temple in question is neither a public temple nor a math as defined in the Act and that it is a private spiritual institution for the worship by the applicants family members only. The Additional Assistant Commissioner of Endowments held that the institution is neither a public temple nor a math but is a private institution of the petitioners. The appellate authority dismissed the appeal. In an appeal filed before it under section 44 of the Act, the High Court held that the institution is a public temple. This judgment of the High Court was confirmed by the Apex Court. Paragraph 12 of the judgment refers to the facts and circumstances proved in the case and relied on by the High Court and paragraphs 16 to 24 refers to the judgments that were relied on by the parties. These paragraphs of the RFA.457/03 17 judgment are extracted below for reference:
"12. The High Court, after carefully analysing the oral and documentary evidence, ultimately summarised its findings as follows :-
"23. Although direct evidence of dedication is not forthcoming, yet the evidence adduced in the case is sufficient to hold that the dedication was for the benefit of the public and that the Hindu public have been using the temple premises as a place of religious worship and offering bhog as of right. The cumulative effect of the following facts and circumstances proved in the case clearly establish that the dedication was for the benefit of the public and that the temple premises are being used as of right by the public as a place of religious worship :-
(1) The existence of idols, some of which have been permanently installed and images of minor deities in the temple.
(2) The institution has external features of a public temple.
(3) Hindu religious festivals are celebrated in the temple and the members of the public participate in the same.
(4) The members of the public visit the place without restriction and are in the habit of offering worship as of right.
(5) The land on which the temple stands has not been dedicated to any private individual or a family but to the 'Samadhi Gossain' through an ancestor RFA.457/03 18 of the petitioners as the marfatdar and the land is held rent free.
(6) That the temple was constructed with the aid of public subscriptions.
(7) That Pujaris have been engaged to carry on sevapuja of the deities and to offer bhog daily. (8) Existence of a shop in the temple premises for sale of bhog articles to the visitors. (9) The devotees visiting the temples are given food and shelter in the temple.
(10) The temple is located by the side of a public road at a place quite separate from the residential house of the petitioners.
(11) Existence of a tank known as 'Chakratirtha' excavated on a land recorded as Sarbasadharan. (12) Existence of a Dharmasala in the temple premises for accommodation of the visitors. (13) Absence of evidence that any member of public was denied access to the temple at any time. (14) The petitioners have themselves held out and represented to the public that the institution is a public temple.
24. In coming to the conclusion about the private nature of the institution, the learned Commissioner of Endowments seems to have been influenced by the facts that the petitioners have ceased to hold the festivals for the last 8 to 10 years and that they also closed the main gate of the temple for about 3 years without any opposition by the public. He, however, overlooked the fact that the petitioners stopped celebration of the festivals and closed the main gate only RFA.457/03 19 after an attempt was made by the Endowment Department to assume jurisdiction over the institution. The petitioners themselves admitted in their application under Section 41 that in the year 1948-49 an Inspector of Endowments called upon them to render accounts. It also appears that subsequently there was a proposal for appointment of trustees by the Endowment Department and the members of the public filed several complaints before the Commissioner regarding mismanagement of the institution and in reply to those complaints the petitioners filed counters in Exts. H and J. The institution cannot be held to be a private one merely because the petitioners who are marfatdars stopped the festivals and closed the main gate for some years, if it otherwise satisfies the definition of a temple as given in the Act.
25. On a consideration of the facts and circumstances, as discussed above, I am satisfied that all the essential features of a public temple are found in the institution and it, therefore, clearly falls within the definition of temple as given in the Act."
"16. It would be advantageous to bear in mind the principles/tests laid down by this Court and other High Courts in the matter of finding out whether an institution is a private temple or a public temple. The decisions brought to our notice at the bar may now be noted. As early as in 1924, the Privy Council in Pujari Lakshmana Goundan v. RFA.457/03 20 Subramania Ayyar, AIR 1924 PC 44, took the view that even in a case where at the initial stage the temple is a private one by reason of the founder holding it out by representing to the Hindu public that the temple was a public temple at which all Hindus might worship, then the inference will be that he had dedicated the temple to the public. This judgment of the Privy Council was noted and cited with approval by this Court in Pratapsinhji N. Desai v. Dy. Charity Commr., Gujarat, (1987) 3 SCR 909 : (AIR 1987 SC 2064). This Court observed as follows (At Pp. 2070-71 of AIR) :
"We do not think that it would serve any purpose to refer to all the well-known decisions except a few. In Pujari Lakshmana Goundan v. Subramania Ayyar (AIR 1924 PC 44) (supra), the temple was not an ancient one and there was no deed of endowment. The question was whether the temple was a public temple or a private temple. Although the temple was a private temple, the evidence disclosed that the Pujari Lakshmana Goundan, the founder of the temple had held out and represented to the Hindu public in general that the temple was a public temple at which all Hindus might worship. Sir John Edge, in delivering the judgment of the Privy Council held that on that evidence the Judicial Committee had no hesitation in drawing the inference that the founder had dedicated the temple to the public, as it was found that he had held out the temple as a public temple. Another Privy Council decision to which we need refer is that of Babu Bhagwan Din v. Gir Har RFA.457/03 21 Swaroop, LR (1939) 67 IA 1 : (AIR 1940 PC 7), where the grant was made to one Daryao Gir and his heirs in perpetuity and the evidence showed that the temple and the properties attached thereto had throughout been treated by the members of the family as their private property appropriating to themselves the rents and profits thereof. Sir George Rankin, delivering the judgment of the Privy Council held that the fact that the grant was made to an individual and his heirs in perpetuity was not reconciliable with the view that the grantor was in effect making a wakf for a Hindu religious purpose. That very distinguished Judge referred to the earlier decisions in Pujari Lakshamana Goundan's case, and observed :
"Their Lordships do not consider that the case before them is in general outline the same as the case of the Madras temple, 29 Cal WN 112 : (AIR 1924 PC 44), in which it was held that the founder who had enlarged the house in which the idol had been installed by him, constructed circular roads for processions, built a rest house in the village for worshippers, and so forth, had held out and represented to the Hindu public that it was a public temple."
The true test as laid down by this Court speaking through Venkatarama Ayyar, J. in Deoki Nandan v. Murlidhar, 1956 SCR 756 : (AIR 1957 SC 133) in determining whether a temple is a private or a public temple, depends on whether the public at large or a section thereof, 'had an unrestricted RFA.457/03 22 right of worship' and observed :
"When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof."
The learned Judge distinguished the decision of the Privy Council in Babu Bhagwan Din v. Gir Har Saroop (AIR 1940 PC 7) (supra) on the ground that properties in that case were granted not in favour of an idol or temple but in favour of the founder who was maintaining the temple and to his heirs in perpetuity, and said :
"But, in the present case, the endowment was in favour of the idol itself, and the point for decision is whether it was private or public endowment. And in such circumstances, proof of user by the public without interference would be cogent evidence that the dedication was in favour of the public."
It was also observed while distinguishing the Privy Council decision inBabu Bhagwan Din'scase that it was unusual for rulers to make grant to a family idol. In Deoki Nandan's case the Court referred to several factors as an indicia of the temple being a public one viz. the fact that the idol is installed not within the precincts of residential quarters RFA.457/03 23 but in a separate building constructed for that purpose on a vacant site, the installation of the idols within the temple precincts, the performance of pooja by an archaka appointed from time to time for the purpose, the construction of the temple by public contribution, user of the temple by the public without interference, etc."
17. In Babu Bhagwan Din v. Gir Har Saroop, AIR 1940 PC 7, while distinguishing the case of Pujari Lakshmana Goundan's case, the Court observed as follows :-
"In these circumstances, it is not enough in their Lordships' opinion, to deprive the family of their private property to show that Hindus willing to worship have never been turned away or even that the deity has acquired considerable popularity among Hindus of the locality or among persons resorting to the annual mela. Worshippers are naturally welcome at a temple because of the offerings they bring and the repute they give to the idol: they do not have to be turned away on pain of forfeiture of the temple property as having become property belonging to a public trust. Facts and circumstances, in order to be accepted as suff-icient 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 RFA.457/03 24 user by the public is hazardous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away; and as worship generally implies offerings of some kind it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. Thus, in 61 I.A. 405 :
(AIR 1934 PC 230) the Board expressed itself as being show to act on the mere fact of the public having been freely admitted to a temple. The value of public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. Their Lordships do not consider that the case before them is in general outline the same as the case of the Madras Temple, 29 CWN 112, in which it was held that the founder who had enlarged the house in which the idol had been installed by him, constructed circular roads for processions, built a rest house in the village for worshippers, and so forth, had held out and represented to the Hindu public that it was a public temple."
18. In the Poohari Fakir Sadavarthy of Bondilipuram v. Commr. Hindu Religious and Charitable Endowments, (1962) Supp (2) SCR 276 :
(AIR 1963 SC 510), Raghubar Dayal, J., speaking for a three-Judge Bench, laid down the following tests to find out whether a particular temple is a private or a public one :-
"That an institution would be a public temple within the Hindu Religious Endowments Act, 1926, if two RFA.457/03 25 conditions are satisfied; firstly, that it was a place of public religious worship and secondly, that it was dedicated to, or was for the benefit of, or was used as of right by the Hindu Community, or any section thereof, as a place of religious worship. When there be good evidence about the temple being a private one, the mere fact that a number of people worship at the temple, is not sufficient to come to the conclusion that the temple must be a public temple to which those people go as a matter of right as it is not usual for the owner of the temple to disallow visitors to the temple, even if it be a private one."
19. In Bihar State Board of Religious Trust v. Palat Lal, (1971) 2 SCR 650 : (AIR 1972 SC 57), this Court, inter alia, observed that the fact that the worshippers from the public were admitted to the temple was not a decisive fact, because worshippers would not be turned away as they brought in offerings, and the popularity of the idol among the public was not indicative of the fact that the dedication of the properties was for public.
20. This Court in Bihar State Board Religious Trust, Patna v. Mahant Sri Biseshwar Das, (1971) 3 SCR 680 : (AIR 1971 SC 2057) held that the evidence that Sadhus and other persons visiting the temple were given food and shelter was not by itself indicative of the temple being a public temple or its properties being subject to a public RFA.457/03 26 trust; 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; that the 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; that the fact that idols were installed permanently on a pedestal and the temple was constructed on grounds separate from the residential quarters of the mahant could not lead to inference of dedication to the public.
21. In T. D. Gopalan v. Commr. of Hindu Religious and Charitable Endowments, Madras, (1973) 1 SCR 584 : (AIR 1972 SC 1716), this Court while considering a similar question, observed as follows (at p. 1720, para 11 of AIR) :-
"Moreover, if the origin of the temple had been proved to be private then according to the law laid down by the Privy Council itself inBabu Bhagwan Din's case (AIR 1940 PC 7)dedication to the public was not to be readily inferred. Such an inference, if made, from the fact of user by the public was hazardous since it should not, in general, be consonent with Hindu sentiment or practice that worshippers should be turned away; and, as worship generally implied offerings of some kind, it was not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. It was further emphasised by their Lordships that the value of RFA.457/03 27 public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. In Goswami Shri Mahalaxmi Vahuji v. Rannchboddas Kalidas (AIR 1970 SC 2025) it was pointed out that the appearance though a relevant circumstance was by no means decisive. The circumstance that the public or a section thereof had been regularly worshipping in the temple as a matter of course and they could take part in the festivals and ceremonies conducted in that temple apparently as a matter of right was a strong piece of evidence to establish its public character. If votive offerings were being made by the public and the expenses were being met by public contribution, it would be safe to presume that the temple was public. In short 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 to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple were facts that went to establish whether a temple was public or private."
22. In C. Ratnavelu Mudaliar v. Commr. for Hindu Religious and Charitable Endowments, AIR 1954 Madras 398, a Division Bench of that High Court had occasion to consider a similar question. Mr. Venkatarama Aiyar, J., as he then was, speaking for the Bench, held as follows (Para 5) :-
"In 1946, the Hindu Religious Endowments Board RFA.457/03 28 called for reports on the structure and the constitution of the building. Exhibits R-2 and R-3 are the reports submitted by the office. These reports show that the building has got all the normal features of the temple, that it has got Prakaram, Dhawajastambam, Balipeetam and Nandikeswara, and there are shrines for Bhairavar, Kasi Visalakshi, Chandikeswara, and other deities. There is a 16 pillared mandapam and there are gopurams all over the shrine. It also appears from the evidence now adduced that festivals are being regularly performed, the deity is taken in procession, and archanas are performed by the worshippers. On these materials the only conclusion possible is that the institution has for a long period come to be regarded as a place of religious worship, which the public are entitled to use as a matter of right, and this being so the institution will be a temple as defined in S. 9(12), Madras Hindu Religious Endowments Act."
23. The very same Bench of the Madras High Court in Madras Hindu Religious Endowments Board v. V. N. Deivanai Ammal by Power of Attorney agent T. V. Mahalinga Aiyar, AIR 1954 Madras 482 held that in the case of an old temple, such dedication might be presumed from long user by the public as of right. On the facts, the learned Judges found that the worship was maintained and the expenses were met from out of private funds of the respondents and in the absence of any property being dedicated for the maintenance of RFA.457/03 29 worship in the temple, it was difficult to infer dedication of the temple to the public.
24. In Goswami Shri Mahalaxmi Vahuji v. Rannchhoddas Kalidas, (1970) 2 SCR 275 : (AIR 1970 SC 2025), this Court, after considering the earlier decisions on this aspect, held as follows (at pp. 2031-32 of AIR) :-
"Though most of the present day Hindu public temples have been found as public temples, there are instances of private temples becoming public temples in course of time. Some of the private temples have acquired great deal of religious reputation either because of the eminence of its founder or because of other circumstances. They have attracted large number of devotees. Gradually in course of time they have become public temples. Public temples are generally built or raised by the public and the deity installed to enable the members of the public or a section thereof to offer worship. In such a case the temple would clearly be a public temple. If a temple is proved to have originated as a public temple, nothing more is necessary to be proved to show that it is a public temple but if a temple is proved to have originated as a private temple or its origin is unknown or lost in antiquity then there must be proof to show that it is being used as a public temple. In such cases the true character of the particular temple is decided on the basis of various circumstances. In those cases the Courts have to address themselves to various questions RFA.457/03 30 such as :-
(1) Is the temple built in such imposing manner that it may prima facie appear to be a public temple?
(2) Are the members of the public entitled to worship in that temple as of right?
(3) Are the temple expenses met from the contribution 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 as a public temple?
Though the appearance of a temples is a relevant circumstance, it is by no means a decisive one. The architecture of temples differs from place to place. The circumstance that the public or a section thereof have been regularly worshipping in the temple as a matter of course and they can take part in the festivals and ceremonies conducted in that temple apparently as a matter or right is a strong piece of evidence to establish the public character of the temple. If votive offerings are being made by the public in the usual course and if the expenses of the temple are met by public contribution, it is safe to presume that the temple in question is a public temple. In brief the origin of the temple, the manner in which its affairs are managed, the nature and extent of gifts received by it, rights exercised by the devotees in regard to worship therein, the consciousness of the manager and the RFA.457/03 31 consciousness of the devotees themselves as to the public character of the temple are factors that go to establish whether a temple is a public temple or a private temple. In Lakshmana v. Subramania (AIR 1924 PC 44) the Judicial Committee was dealing with a temple which was initially a private temple. The Mahant of this temple opened it on certain days in each week to the Hindu public free to worship in the greater part of the temple, and on payment of fees in one part only. The income thus received by the Mahant was utilised by him primarily to meet the expenses of the temple and the balance went to support the Mahant and his family. The Privy Council held that the conduct of the Mahant showed that he had held out and represented to the Hindu public that the temple was a public temple at which all Hindus might worship and the inference was, therefore, that he had dedicated it to the public. In Mundancheri Koman v. Achutan Nair (AIR 1934 PC
230), the Judicial Committee again observed that the decision of the case would depend on the inferences to be derived from the evidence as to the way in which the temple endowments had been dealt with and from the evidence as to the public user of the temples. Their Lordships were satisfied that the documentary evidence in the case conclusively showed that the properties standing in the name of the temples belonged to the temples and that the position of the manager of the temples was that of a trustee. Their Lordships further, added that if it had been shown RFA.457/03 32 that the temples had originally been private temples they would have been slow to hold that the admission of the public in later times possibly owing to altered conditions would affect the private character of the trusts. In Deoki Nandan v. Murlidar (AIR 1957 SC 133), this Court observed that the issue whether a religious endowment is a public or a private one is a mixed question of law and fact, the decision of which must depend on the application of legal concepts of a public and private endowment to the facts found. Therein it was further observed that the distinction between a public and private endowment is that whereas in the former the beneficiaries, which means the worshippers are specific individuals and in the later the general public or class thereof. In that case the plaintiff sought to establish the true scope of the dedication from the user of the temple by the public. In Narayan Bhagwant Rao Gosavi Balajiwale v. Gopal Vinayak Gosavi (AIR 1960 SC 100),this Court held that the vastness of the temple, the mode of its construction, the long user of the public as of right, grant of land and cash by the Rulers taken along with other relevant factors in that case were consistent only with the public nature of the temple."
16.This issue was subsequently considered by this Court in Narayanan Pandarathil v. Vasudevan Pillai [2014 RFA.457/03 33 (3) KLT 497] and in paragraphs 35 to 47, it was held thus:
35. Regarding the question of dedication, the learned Senior Counsel Sri. S. Sreekumar relies on Sri Radhakanta Deb and another v. Commissioner of Hindu Religious Endowments, Orissa ((1981) 2 SCC 226) and Bhagwan Din & Ors. v. Gir Har Saroop & Ors. (AIR 1940 PC 7). In Sri Radhakanta Deb (supra), it was held, "The question as to whether the religious endowment of a private nature or of a public nature has to be decided with reference to the facts proved in each case and it is difficult to lay down any test or tests which may be of universal application".
It was further held, "It is manifest that where the endowment is lost in antiquity or shrouded in mystery, there being no document or revenue entry to prove its origin, the task of the court become difficult and it has to rely merely on circumstantial evidence regarding the nature of the user of the temple".
36. Here in this particular case also, all agree to the proposition that the deity 'Vanadurga' in Pannivizha temple had its own origin as "Swayambhoo". There is no documentary evidence to show the installation of the deity by any particular person in the temple. At the same time, RFA.457/03 34 as I have noted earlier, there is enough indication that the temple as well as its properties belong to the erstwhile Illom and they were considering the temple and its properties as their properties. There is no contra evidence available in the matter other than the execution of Ext.B3. In the absence of any contra evidence, and when the preponderance of probabilities clearly point towards the fact that the temple and its properties being private temple and properties as is evident from the various documents which I have discussed earlier, it has to be considered that the temple and its properties are private properties and it did not assume the status of a public trust. Even through Ext.B3, such a status cannot be conferred as the then Oorallen, who executed the document was at the most, merely a trustee in respect of the said properties. A trustee, who has got only a limited power of administration only, cannot transform a private trust into a public trust in derogation of the rights of all other members of the Illom.
37. From the discussions made above, it is evident that there was no total divestment of the interest of the members of the Illom over the properties. There is no total renunciation or parting with the properties. They continued to hold the properties as their own. They continued to appropriate the income from those properties for their livelihood as well as for meeting the expenses in these temples at their will and pleasure. When income RFA.457/03 35 were not adequate for such purposes, the then Karanavans of the family had gone to the extent of making further allotments of properties to the shares of those managers or Oorallens for such purposes. The preponderance of probabilities point towards the fact that the temple had never assumed the status of a public temple or the properties of the temple have never assumed the status of public trust properties.
38. In Bhagwan Din (supra), it was held, "While it is certainly possible that in the course of years a private temple should have been so dealt with as to have become dedicated for the benefit of the Hindu public as a public temple, such a dedication requires to be proved". From a mere assertion that in the course of years, the temple has assumed the status of a public temple, it cannot be taken as granted without any formal proof of such fact. It was further held therein, "Facts and circumstances, in order to be accepted as sufficient proof 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 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, RFA.457/03 36 since it would not in general be consonant with Hindu sentiments or practice that worshipers should be turned away; and as worship generally implies offering of some kind it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. Thus in Mundancheri Koman v. Achuthan Nair the Board expressed itself as being slow to act on the mere fact of the public having been freely admitted to a temple. The value of public user as evidence of dedication depend on the circumstances which give strength to the inference that the user was as of right. Their Lordships do not consider that the case before them is in general outline the same as the case of the Madras temple, Pujari Lakshmana Goundan v. Subramania Ayyar (supra), in which it was held that the founder who had enlarged the house in which the idol had been installed by him, constructed circular roads for processions, built a rest house in the village for worshipers, and so forth, had held out and represented to the Hindu public that it was a public temple. The Chief Court have, in the opinion of the Board, correctly estimated the particular facts of the case before them and have rightly negatived the contentions that the temple is a public temple and that the property in suit is impressed with a trust of a public religious character."
39. In Sri Radhakanta Deb (supra), it was held in paragraph 12, RFA.457/03 37 "It may thus be noticed that this Court has invariably held that the mere fact that the members of the public used to visit the temple for the purpose of worship without any hindrance or freely admitted therein would not be a clear indication of the nature of the endowment. It is manifest that whenever a dedication is made for religious purposes and a deity installed in a temple, the worship of the deity is a necessary concomitant of the installation of the deity, and therefore, the mere factum of worship would not determine the nature of the endowment. Indeed if it is proved that the worship by the members of the public is as of right that may be a circumstance which may in some cases conclusively establish that the endowment was of a public nature. In Dhaneshwarbuwa Guru Purshottambuwa v. The Charity Commissioner, State of Bombay ((1976) 3 SCR 518 = AIR 1976 SC 871), all the aforesaid cases were summarised and the principles indicated above were reiterated."
40. In Bihar State Board Religious Trust, Patna v. Mahant Sri Biseshwar Das ((1971) 1 SCC 574), it was held 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 value of such public user as evidence of dedication depends on the circumstances which RFA.457/03 38 give strength to the inference that the user was as of right." (emphasis supplied)
41. In Sri Radhakanta Deb (supra), the Apex Court has qualified the norms required to decide whether the endowment is of a private or public nature, in the following lines:
"Thus, on a conspectus of the authorities mentioned above, the following tests may be laid down as providing sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature :
(i) 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;
(ii) 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 does not retain any control over the management. Allied to this may be a circumstance when the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large;
(iii) Where, however, a document is available to prove the nature and origin of the endowment 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 RFA.457/03 39 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;
(iv) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment."
42. The learned Senior Counsel Sri. Sidharthan as well as the learned counsel for the Society have argued that the public were not asked to go away from the temple when they had advanced for worship and that itself gives a presumption that the temple is purely a public temple. The learned Senior Counsel Sri. S. Sreekumar relies on the decision in Bihar State Board Religious Trust (supra), wherein it was held in paragraph 13 that, "The mere fact that the public was never asked to go away, or absence of proof that they were allowed on permission and invitation only cannot be conclusive evidence of the temple being one in which the public have by user acquired interest." In paragraph 14, it was held as that, "The mere fact of public having been freely admitted to the temple cannot lead to an RFA.457/03 40 inference of dedication to the public. The value of such user as an evidence of dedication depends on the circumstances."
43. In Appukutty & Ors. v. Kuniyil Achuthan (ILR 1989 (1) Ker. 218), the question was whether the temple in question belongs to the family members of Kuniyil Tarwad or a public temple. In that case, it was held that there is no acceptable evidence to show that the participation in festivals and worshiping were done by the public as of right and, therefore, it is insufficient to convert the temple into a public temple. In Appu Pattar & Anr. v. Sri Kurumba Bhagavati Devaswom Uttama Panampally Kurumba Umma & Ors. (1911 Volume XXI MLJ 588), it was held that where a temple was originally a private temple, there must be clear and strong proof of subsequent dedication to the public, to sustain a plea that the temple subsequently became a public temple. Apart from the oral assertion that from 1958 onwards, a society was manning the administration and the public were worshiping the temple and partaking in the festivals as of right and making offerings as of right, no proof has been furnished to show that there had occurred a dedication to the public after 1958. In Gangadharan Nair v. Commissioner, Malabar Devaswom Board (2013 (3) KLT 1017), T.R.Ramachandran Nair, J. speaking for the Bench held in paragraph 48 by relying on the decision of the Apex court in Tilkayat Shri Govindlalji Maharaj (supra) as follows:-
RFA.457/03 41
"The discussion above will therefore show that importance will have to be given with regard to dedication, to find out whether it is a family Temple or a public Temple. Various aspects will have to be assessed based on the intention of the propounder and other factors. Merely because public were allowed to worship, it is not conclusive to hold that it is a public religious institution. Various other factors will have to be assessed. When the evidence regarding the nature of the Temple is not clearly available, how it could be assessed, has been laid down by the Apex Court in Tilkayat Shri Govindlalji Maharaj's case (AIR 1963 SC 1638)."
44. In Goswami Shri Mahalaxmi Vahuji v. Shah Ranchhoddas Kalidas & Ors. (AIR 1970 SC 2025), it was held in paragraph 15, "Though most of the present day Hindu public temples have been founded as public temples, there are instances of private temples becoming public temples in course of time. Some of the private temples have acquired great deal of religious reputation either because of the eminence of its founder or because of other circumstances. They have attracted large number of devotees. Gradually in course of time they have become public temples. Public temples are generally built or raised by the public and the deity installed to enable the members of the RFA.457/03 42 public or a section thereof to offer worship. In such a case the temple would clearly be a public temple. If a temple is proved to have originated as a public temple, nothing more is necessary to be proved to show that it is a public temple but if a temple is proved to have originated as a private temple or its origin is unknown or lost in antiquity then there must be proof to show that it is being used as a public temple. In such cases the true character of the particular temple is decided on the basis of various circumstances. In those cases the courts have to address themselves to various questions such as-
(1) Is the temple built in such imposing manner that it may prima facie appear to be a public temple?
(2) Are the members of the public entitled to worship in that temple as of right?
(3) Are the temple expenses met from the contributions made by the public?
(4) Whether the sevas and utsavas conducted in the temple are those usually conducted in public temples?
(5) Have the management as well as the devotees been treating that temple as a public temple?"
It was further held that though the appearance RFA.457/03 43 of a temple is a relevant circumstance, it is by no means a decisive one. The circumstances to show that the public or a section thereof have been regularly worshiping in the temple as a matter of course and they can take part in the festivals and ceremonies conducted in that temple apparently as a matter of right is a strong piece of evidence to establish the public character of the temple.
45. The learned Senior Counsel Sri. Sidharthan relies on Bala Shankar Maha Shankar Bhattjee and others v. Charity Commissioner, Gujarat State (AIR 1995 SC 167) and pointed out that an idol being a juristic person, the property endowed to it vests in it; but the worshipers are the beneficiaries. It is also argued that when the origin of the temple is lost in antiquity, it is difficult to prove dedication to public worship and, therefore, it must be inferred from the proved facts and circumstances of a given case whether there was dedication to public purpose or not.
46. The learned Senior Counsel Sri. S. Sreekumar relies on Kuldip Chand & Anr. v. Advocate General to Government of H.P. & Ors. ((2003) 5 SCC 46) to prove as to illustrate as to what constitutes dedication. In paragraph 38, it was held therein that a dedication for public purposes and for the benefit of the general public would involve complete cessation of ownership on the part of the founder and vesting of the property for the religious object. In the absence of a formal and express endowment, the character of the RFA.457/03 44 dedication may have to be determined on the basis of the history of the institution and the conduct of the founder and his heirs. Here, the conduct of the members of the Illom, who were functioning as urallers of the temple, has to be gone through. The history of the property and the conduct of the members of the Illom, who were in absolute administration of the temple and its properties, clearly reveals that there was no absolute dedication.
47. In the decision in Kuldip Chand (supra), it was held that a dedication may either be complete or partial. A right of easement in favour of a community or a part of the community would not constitute such dedication where the owner retained the property for himself. Mere parting with of a right of easement cannot be said to be a dedication for constituting or creating a public trust. A dedication must be of a complete relinquishment of its rights of ownership over the property. It is the admitted case that the members of the Illom in ancient times were considered to be the rulers of the locality. No wonder that the then properties with the Illom were the absolute properties of the members of the Illom. Being rulers of the locality, it cannot be inferred that a member of the public would have attended the temple at least without the implied permission from the then rulers who own the said temple. It may be true that in all their humility, and by expressing their pious conduct, they would RFA.457/03 45 have permitted the members of the public who worship in the temple. They might not have obstructed the public from making offerings at the temple. But, it is a fact that they retain the properties as their own and they continued to enjoy the properties. Therefore, there cannot be any valid dedication in this case and further, there cannot be any creation of a public charitable trust in this case as far as the temple and its properties are concerned."
17.Bearing in mind the principles thus laid down in the above judgments, we shall now proceed to examine whether, in the light of these principles, the temple can be held to be a public temple as claimed by the appellants or is a private temple as contended by the contesting respondents. To substantiate the case that the temple is a public temple, it is for the plaintiffs to prove that the temple was dedicated to the public, Law require that such dedication must be of a complete relinquishment of right of ownership over the properties of the temple. Keeping this legal requirement in mind, we shall now proceed to examine the evidence available on record. RFA.457/03 46
18.Before we go to the details of the evidence of the appellants, it is necessary to refer to the evidence of PWs.1 and 2, who, as already mentioned, are plaintiffs 2 and 3. While the proof affidavit is almost a verbatim reproduction of the plaint, in cross, PW1 said that his claim that Adiyodi Nair had, while leaving on pilgrimage, dedicated the temple to the public, is purely hearsay and is not based on any document that he has seen. He has also stated that at the time when Adiyodi Nair left, only devotees of Brahmin community had entry into the temple. He has also stated that the temple was entrusted only to those who had entry into the temple and that "DdL_AbGA^xa" Nxa" gfdDJ_fa %U5^V_5Z 5b?_O^Ca." Again he says that "5_?BbV gfdD" private %O\N^ODaf5^Im %U_f? .fLC_\a" &x^G5V f:Oq^W %UVAm %O\J_W %U5^V" 5_Ga"."
19.PW2, in his cross examination, said that the Ooralers jointly appoint a Manager either from among themselves or from outside and it is on that basis that the temple is administered. His knowledge about RFA.457/03 47 the establishment of the temple and what all had happened thereafter, are also based on hearsay only. PW3, in his evidence, said that this knowledge is only from 1980 onwards. But he also said that in the temple festivals and processions, devotees from all communities participate.
20. The evidence of these prime witnesses of the appellants do not, in any manner, help them in their case. First of all, this is purely hearsay and is not based on any document. Secondly, PW1 himself admits that at least initially, only Brahmins had entry into the temple. He has also confirmed that the temple is a private temple and that Thantri family have ownership in the temple. Similarly PW2 has spoken about the appointment of Manager by the Ooralers themselves, which would not have been the case, had it not been a private temple. Again PW3 has spoken about the participation of devotees from all communities in the temple festivals and processions, which only indicates the communal harmony in the area and not a case of dedication either expressly or by holding out.
RFA.457/03 48
21.Among the documentary evidence relied on by the plaintiffs, Ext.A3 is the Thandaper extract which shows that the thandaper of the properties is in the name of Kidangoor Devaswom. Ext.A4 is the building tax assessment register which shows that the buildings of the temple are owned by the temple and not by the defendants. Ext.A5 is the minutes book of a meeting held on 29.1.1964. In that meeting, a committee of devotees was appointed for the conduct of the festival and for the management of the temple. Exts.A5 and A7 to A18 are produced to show the public participation as of right in the festivals in the temple. Ext.A19 is the paditharam, which, according to the plaintiffs, shows that anubhavam is in favour of the devotees. Ext.A21 is the minutes of the temple renovation committee meeting held on 30.4.1972. In that meeting, a committee of 201 devotees, with late Sri.Kidangoor Gopala Pillai as its Patron, was appointed. This document also shows that a plan for the renovation of the temple was prepared. According to the plaintiffs, with public participation, the temple was renovated. Reference was also made to the minutes of the committee meeting RFA.457/03 49 held on 1.2.1976, showing receipt of contribution of devotees for renovation of the temple. Relying on these documents, the plaintiffs seek to establish public participation in the development and management of the temple and receipt of contributions from the general public. Similarly, it is also contended that the assets of the temple are owned by the temple and Devaswom and not by the Ooralers.
22.The oral evidence adduced is that of PWs.1 to 12. PWs.1 and 2 are the plaintiffs themselves and PWs.3 to 13 are the devotees from the locality. PWs.11 and 12 are the temple employees. While PWs.1 and 2, who are the second and third plaintiffs, have supported the plaint claims, PW3 has, in his evidence, spoken about the participation of general public in kavadi procession held in connection with the annual festival in the temple. PW4, an independent witness has spoken about the kanikkamandapam installed at Kattachira, which, according to him, is in the property donated by his father. PW5, another independent witness, has spoken about the dwajaprathista and has deposed about public RFA.457/03 50 participation in connection therewith. He has also spoken about the offerings performed by him in the temple. PW6, yet another independent witness, has deposed that the idol is being taken out on the festival day in a procession outside the temple. PW7, also an independent witness, has deposed that he too has conducted utsavabali. According to him, he too was a member of the committee constituted for the construction of alankara gopuram and in cross examination, he has spoken about the collection of amounts from general public in connection with the festivals in the temple. PW8 has spoken about a koothambalam, a temple theatre where ancient art forms are performed, which, according to the plaintiffs, is available in public temples only. In cross examination, he has spoken about the participation and collection of money from general public. PW9 is the Advocate Commissioner, through whom, Exts.C1, C2 and C3 were proved. In so far as PW13, yet another independent witness, is concerned, he claims to have participated in haindavasamajam constituted for participation of general public in the affairs of the temple. As far as the evidence of RFA.457/03 51 PWs.10, 11 and 12 are concerned, being employees of the temple, they have spoken about the duties discharged by them.
23.The evidence adduced on behalf of the plaintiffs, in a nut shell, being as stated above, the question is whether it is sufficient to prove that the temple which was established by Adiyodi Nair and now administered by the defendants was ever dedicated to the general pubic to make it a public temple as claimed by the appellants. The other question is whether the aforesaid pieces of evidence would prove that the temple, established as a private temple, has acquired the characteristics of a public temple either it being held out to the public as a public temple or in any other manner. In so far as this aspect of the matter is concerned, what is relied on by the plaintiffs is that the general public worship in the temple as of right, that there is participation of the general public in the management and other affairs of the temple and its festivals, that contribution is collected from the general public in connection with the festivals and RFA.457/03 52 renovation works undertaken at the temple, that the structures in and around the temple indicate that the temple is a public temple and that the land and buildings of the temple are owned by the temple itself.
24.The evidentiary value of these pieces of evidence is to be considered in the context of the issue as to whether these would indicate that the temple is a public temple. Necessarily these pieces of evidence will have to be appreciated in the context of the principles laid down by the Apex Court and this Court in the judgments that were referred to above. Authorities are unanimous and law is settled that the worship by the general public will not clothe a private temple with the characteristic of a public temple. This is for the reason that it is not the Hindu tradition to turn away any devotee from temples, even if it is private, not only for spiritual reasons but also for the reputation that it brings and the offerings that the devotees who throng the temple make to the deity. Therefore, the mere fact that the public are worshipping in the temple RFA.457/03 53 cannot signify that the temple is a public temple. However, the situation could be different if it is proved on evidence that the general public worship in the temple as of right. But, the evidence available in this case, to our mind, do not establish any such right.
25.Similar is the case with regard to participation of the general public in the affairs of the temple. As we have already stated, there is evidence to indicate that the devotees of the locality have participated in the temple festivals, renovation and other matters connected with the temple. Merely because festivals are celebrated or persons visiting the temple are given food or shelter are not indications of the temple being a public temple (See Dhaneshwarbuwa Guru Purushottambuwa v. The Charity Commissioner, State of Bombay [(1976) 2 SCC 417]. Therefore, these facts, in our view, can be the case even if the temple is a private temple. Further, in a village in Kerala, which is dominated by the members of the Hindu community, who generally are very religious, it is common that people take initiative in the well RFA.457/03 54 being of the temple and the presiding diety. They do this by physical involvement and monetary contributions which are utilised for the purposes of the temple. That does not mean that a private temple would acquire the characteristics of a public temple or that the ownership thereof would stand divested from the owners of the temple or Ooralers. It is also the case with respect to renovation of a temple with public involvement. Similarly, the fact that the properties and buildings are owned by the Devaswom only shows that the owners themselves have dedicated the properties to the deity and that does not mean that the temple stands dedicated to the public.
26.Much arguments were raised with reference to Ext.A20, a gazette notification issued under section 4(3) of the Jenmikaram Payment (Abolition) Act, 1960 (Act 3 of 1961). According to the plaintiffs, on the introduction of Act 3 of 1961, the defendants themselves made an application for compensation, claiming that the temple is a religious institution of public nature and that the District Collector, the prescribed authority, published the notification and RFA.457/03 55 held the temple to be a religious institution of public nature. It is pointed out that since then, compensation is being received by the Devaswom and that therefore, the contention that the temple is a private temple is untenable and that the defendants are estopped from raising that contention. However, this contention was resisted by the learned counsel for the respondents by contending that the arguments now raised before this Court is contrary to the pleadings contained in the plaint, where, it is pointed out that reference is made to the provisions contained in the Kerala Land Reforms Act and not to Act 3 of 1961 and the payment of annuity thereunder. According to the respondents, arguments which have no foundation of pleadings cannot be allowed to be raised.
27.Though it is true that in the plaint reference made is only regarding the annuity paid under the provisions of the Kerala Land Reforms Act, it is a fact that Ext.A20 is a notification issued on 3.2.1962 under section 4(3) of Act 3 of 1961. This was based on an application made under Rules 4 and 5 RFA.457/03 56 of the Jenmikaram Payment (Abolition) Rules, 1961. The provisions of section 4 of Act 3 of 1961 show that the Government shall pay to every Jenmi other than a religious or charitable institution of a public nature whose right to receive payment of Jenmikaram has been extinguished, compensation according to the scales specified in the Schedule. Sub-section (2) thereof provides that where the jenmi whose right to receive payment of jenmikaram has been extinguished is, at the commencement of this Act, a religious or charitable institution of a public nature, Government shall, by way of compensation, pay to the institution every year an amount equal to the balance arrived at after deducting from the jenmikaram which such institution was entitled to receive immediately before the commencement of this Act, two and a half per cent of such jenmikaram towards collection charges. Sub-section (3) provides that if any question arises as to whether an institution is a religious or charitable institution of a public nature it shall be decided by such authority as may be prescribed.
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28.Rule 4 of the Jenmikaram Payment (Abolition) Rules, 1961 provides that the question whether an institution is a religious or charitable institution of public nature under section 4 of Act 3 of 1961 shall be decided by the Collector of the District. As per this provision, any institution desiring to get the decision of the Collector that it is a charitable or religious institution of a public nature may apply to the Collector of the District concerned, giving the details of the institution such as the name and address of the institution, the amount of jenmikaram that was annually received by such institution, prior to the commencement of the Act, the taluks from which it was due, the perpidi numbers, the nature of the religious or charitable functions that are attended to by it and the reasons for deciding it as a religious or charitable institution of a public nature. Under Rule 5, the Collector shall, on receipt of such applications, issue notice inviting objections, if any, from persons interested within fifteen days of the notice. The notice shall be published in the Gazette and at the Taluk offices of the district where from RFA.457/03 58 jenmikaram was due to the institution and served on the applicant in the manner prescribed for service of summons in the Code of Civil Procedure.
29.Ext.A20 shows that this is a notification issued by the District Collector, Kottayam in terms of Rule 5 inviting objections from interested persons against a declaration that the temple is a religious institution of public nature. Though the order that was passed by the District Collector in pursuance of this notification is not produced in this case, the defendants have not raised any contention that such a notification was not issued or that they are not in receipt of compensation in terms of section 4 of Act 3 of 1961. Therefore, we can safely proceed on the basis that in a proceedings under Act 3 of 1961, the temple was held to be a religious institution of public nature and that it was on the basis of an application made by the Ooralers that the temple is being paid compensation in terms of the provisions contained in Act 3 of 1961.
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30.The question in this background would be whether this conduct of the Ooralers and the order that was passed by the District Collector under Act 3 of 1961 would make the temple a public temple and would entitle the appellants the relief sought for in the suit. In the light of the above facts, which are not in dispute, we shall proceed on the basis that an application was made and a declaration that the temple is a public temple was made by the District Collector in exercise of his powers under section 4 (3) of Act 3 of 1961. The question is whether as a result of dedication, the temple is a public temple. That question should be decided in the light of the principles noticed in the judgments referred to earlier and the evidence on record. When the issue is thus examined, the finding that it is a religious institution of public nature, in a proceedings under Act 3 of 1961, cannot, by itself conclude the issue that the temple is a public temple to entitle the plaintiffs for the reliefs sought for. On the other hand, such a finding, at best, can only be one of the circumstances which can be pointed out to support the contention that the temple has been held out to be a RFA.457/03 60 pubic temple. As we have already stated, for a private temple to become a public temple, dedication is the essential question of fact to be proved and dedication should be of such a nature that the owners are completely divested of their ownership over the property. This is particularly so since, in Kerala, there is no presumption that a temple is a public temple and existence of private temples has been legally recognized (See - Mayne's Treatise on Hindu Law & Usage - 17th Edition; para 828). Viewed in that line, according to us, even if it is accepted that the temple has been declared as a religious institution of public nature, in exercise of the powers under section 4(3) of Act 3 of 1961, that by itself cannot confer on the temple the status of a public temple.
31.It is true that the learned counsel for the respondents relied on the judgment of the Patna High Court in Board of Religious Trust v. A.M. Amrit Das [AIR 1974 Patna 95] to contend that the mere filing of statement on the dictate of the authorities or under compulsion cannot amount to admission and that RFA.457/03 61 a plea of estoppel cannot be raised by the plaintiffs. We are unable to rely on this judgment for the reason that there is nothing before us to hold that the application made under Act 3 of 1961 was involuntary or under compulsion.
32.The plea of estoppel under section 115 of the Indian Evidence Act, 1872 can be set up only in a case where one person has, by his declaration or representation caused or permitted another person to believe a thing to be true and to act upon such belief, in any subsequent proceedings, he or his representative shall not be allowed to deny the truth of the declaration. It is having regard to the above ingredients of section 115 of the Indian Evidence Act that the courts have held that the rule of estoppel can be pressed into service only by the person to whom the declaration has been made or his representative. The onus is on the party setting up a case of estoppel by representation to show that he was either the person, or one of the persons, to whom the representation was in point of fact, or in contemplation of law, made; in other words, that he RFA.457/03 62 was actually or presumptively a representee; or else that he is entitled to raise the estoppel in right of the representee. A representee is deemed in law to include not only any person to whom the representation was directly or immediately made, but also any person to whose notice the representation, though not made to him, was intended to and did in fact, come. (See Estoppel by Representation by Spencer Bower and Turner, Third Edition).
33. In so far as this case is concerned, pleadings are absent in the plaint to set up a case of estoppel. That itself is sufficient to reject this plea. Further, the statements in the application submitted before the District Collector were not made to the plaintiffs or to anybody claiming under them, but was made to the State and therefore, the plaintiffs who are strangers to the proceedings cannot rely on section 115 of the Evidence Act and set up a plea of estoppel.
34.The conclusion, therefore, is irresistible that the plaintiffs have failed to prove that the temple is a RFA.457/03 63 public temple or that the temple was held out to be a public temple and therefore, issue Nos.2 and 3 have been correctly answered by the trial court against the plaintiffs. As we have already stated, once issue Nos.2 and 3 are decided against the plaintiffs, rest of the issues are academic and should also be answered against the appellants.
In the light of the aforesaid findings, the appeal deserves to be dismissed and we do so.
Sd/-
ANTONY DOMINIC, Judge.
Sd/-
P.V.ASHA, Judge.
kkb.