REPORTABL E

    IN THE SUPREME COURT OF INDIA      CIVIL APPELLATE JURISDICTION

     CIVIL APPEAL NO. 993 OF 2002

C.R. Jayaraman & Ors.           ----Appellants

Versus

M. Palaniappan & Ors.        ----Respondents

J U D G M E N T

TARUN CHATTERJEE, J.

1. This appeal is filed against the judgment and

order  dated  25th of  September,  2001  of  the

High Court of Judicature at Madras whereby

the High Court  had dismissed the L.P.A.  No.

196 of 1996 preferred by the appellants before

it.

2. The relevant facts leading to the filing of this

appeal as emerging from the case made out by

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the appellants are narrated in a nutshell for a

better understanding and determination of the

disputes between the parties:

It  is  the case of the appellants plaintiffs  before

the  trial  court  that  their  ancestor  Ellu  Iyer,

constructed and built three temples, namely, Pillaiyar

Temple,  Anjaneyaswami  Temple  and  Gopalakrishna

temple out of his own funds some time before 1890.

The  aforesaid  temples  were  throughout  treated  as

private temples of the appellants and were virtually in

their management. The members of the public never

had any right to offer worship in the temples and the

deities were never dedicated to the public. On 18th of

March,  1965,  the  mother  of  the  first  appellant  had

received a letter from three persons alleging that they

had been appointed as non-hereditary trustees of the

aforementioned  temples  by  the  Hindu Religious  and

Charitable Endowments Board (in short “the Board”),

directing  the  mother  of  the   first  appellant  to  hand

over the property and records of the temples. In the

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same year, the mother of the first appellant filed a Writ

Petition being WP No. 1492 of 1965 before the High

Court at Madras, praying for quashing the order of the

appointment  of  non-hereditary  trustees  of  the  said

temples.  On  15th of  March,  1967,  the  High  Court

allowed the Writ Petition directing the mother of the

first appellant to file an appropriate application before

the Deputy Commissioner of the Board for declaration

of the aforesaid temples as the private temples of the

family of the appellant. Thereafter, the mother of the

appellant  filed  an  application  being  O.A.  No.  28  of

1970 before  the Deputy  Commissioner  of  the Board

under  section  63(a)  of  the  Hindu  Religious  and

Charitable Endowments Act. The said application was

dismissed on 1st of October, 1973, and on appeal, the

Commissioner of the Board confirmed the said order

on 19th of December, 1973. Thereafter, the appellant

on 18th of March, 1974, filed a suit for setting aside

the order of the Commissioner being O.S. No. 169 of

1974 before the Principal Subordinate Judge, Erode,

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Tamilnadu. The trial court held the aforesaid temples

as  public  temples.  Aggrieved  by  the  judgment  and

order of the trial court, the appellants preferred first

appeal  before  the Madras High Court being A.S. No.

665  of  1982  on  13th of  August,  1982  which  was

dismissed by the High Court on 21st of  June,  1996.

Thereafter,  the appellants  preferred  a  Letters  Patent

Appeal  being  L.P.A.  No.  196  of  1996  before  the

Division Bench of the High Court which dismissed the

same. Thus, being aggrieved, the appellants preferred

the present appeal, which on grant of leave was heard

in the presence of the learned counsel for the parties.  

3. We have heard the arguments of the learned

counsel appearing on behalf of the parties and

perused the materials on record. Having done

so, we do not find any reason to interfere with

the  judgment  of  the  High  Court  which  was

based  practically  on  the  question  of  fact

arrived at not only by the High Court but also

by the trial court. Reasons are as follows :

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4. Learned  counsel  appearing  on  behalf  of  the

appellants contended that the Board was not

empowered under the Madras Hindu Religious

and  Charitable  Endowments  Act,  1959  to

declare a private temple as a public temple. We

are not in agreement with this argument of the

learned counsel for the appellants. A perusal of

the relevant provisions of the Act would clearly

show  that  there  is  no  bar  for  the  Board  to

declare  a  particular  temple  as  a  public  one.

However,  the  suit  that  was  filed  by  the

appellants  which  gave  rise  to  filing  of  this

appeal in this Court was for a declaration that

the  aforesaid  temples  were  private  in  nature

and not public  temples.  Therefore,  it was for

the plaintiffs/appellants to prove on evidence

that such temples were private in nature.  

5. Before  we  proceed  further,  we  may,  at  this

juncture,  refer  to a  decision of  this Court  in

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the case of  Hari Bhanu Maharaj of Baroda

vs.  Charity  Commissioner,  Ahmedabad

[(1986)  4 SCC 162],  in which this Court  has

categorically held that the onus of proving the

temple  as  public  or  private  vests  with  the

Board. Drawing inspiration from the aforesaid

decision  of  this  Court,  the  learned  counsel

appearing  on  behalf  of  the  appellants  had

drawn our attention to the order passed by the

Board holding that the aforesaid temples were

public in nature and submitted that the said

order of the Board was not in accordance with

law because the Board had failed to discharge

its  onus  of  proving  the  aforesaid  temples  as

public. From a plain reading of the order of the

Board, which is already on record,  we are of

the view that the Board had categorically held

on  materials  sufficient  to  prove  that  the

aforesaid temples were in fact public temples

and  not  private  temples  as  alleged  by  the

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appellants.  In  the  aforesaid  decision  of  this

Court, it was observed as follows :-  

“Even the provision of  the collection boxes for  cash  and grains  cannot by itself  be a decisive factor to conclude that the Math is a public Math. The collection boxes had been installed in the Sabha Mandap as well  as near  the  Samadhis.  Since  there  is  no evidence  that  Laxman  Maharaj  and Haribhat Maharaj  for  whom the Samadhis have  been  built  were  religious  leaders revered by the public, the provision of  the collection boxes near their Samadhis would have been only for deposit of  offerings by the  members  of  the  families  on  Guru Purnima day or in fulfilment of vows taken by them. More than this, the contents of the cash  boxes  themselves  disprove  the assumption that they have been kept there to enable the members of the public to make offerings in cash or grains during their visit to the Mandir. Of the two boxes kept in the Sabha Mandap  one  was found  to contain 1/4 pound of wheat and the other Rs. 0-8- 9.  Similarly  the  boxes  kept  near  the Samadhis were found to contain 1/4 pound of  rice  and  one  paise  respectively.  If  the members of the public had been visiting the Mandir  even  occasionally  and  depositing contributions  of  grains  and  cash  in  the collection boxes, the quantum of grains and the amount of cash would not have been so meagre and trivial as 1/4 pound of wheat and,  Rs.  0-8-9.  These  revealing  features have been lost sight of  by the High  Court and has led to fallacious conclusion.”

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In the present dispute as had been noted by the

trial court and later affirmed by the High Court in its

impugned judgment, it has been proved beyond doubt

that public offerings were accepted during the normal

days of worship by the Poojari,  and that the members

of the public visited the temple  often as a matter of

right  without  any  hindrance  or  obstruction.  The

appellants contended that as per the Hindu customs,

they  could  not  stop the  general  public  from coming

inside the temple even though the temple is a private

temple.  Though this  contention  has  some  weight  in

the light of the circumstances, yet it cannot be the sole

deciding  factor  to  determine  whether  a  temple  is  in

fact a private  one or dedicated to the public.  In the

decision  reported  in  Goswami  Shri  Mahalaxmi

Vahuji  vs.  Shah Ranchhoddas  Kalidas  (dead)  &

Ors. (AIR  1970 SC  2025),  this  Court  has  held  as

follows:

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“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:

i) Is the temple built in such imposing manner that it may prima facie appear to be a public temple?

ii) Are the members of the public entitled to worship in that temple as of right?

iii) Are  the  temple  expenses  met  from  the  contributions made by the public?

iv) Whether the sevas and unsevas conducted in the temple are those usually conducted in public temples?

v) Has  the  management  as  well  as  the  devotees  been treating that temple as a public temple?”

Taking  these  above-mentioned  points  into

consideration, the trial court as well as the High Court

proceeded  to  determine  the  nature  of  the  aforesaid

temples as to whether they were public or private in

nature. In this connection, the trial court as well  as

the High Court, on consideration of fact and evidence,

documentary and oral, came to the conclusion of fact

that the appellants could not prove by production of

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cogent evidence that the temple was or is situated in a

patta land of the appellants as they had claimed. The

High Court in its judgment passed in the first appeal

dated 21st of June, 1996, which was affirmed by the

Division Bench of the High Court in the Letters Patent

Appeal, observed as follows:

“Two  choultries  have  been  put  up  in Pillaiyar  temple  and  the  object  of constructing  those choultries  is to enable the relatives of  his predecessors and the lessons to stay there when they come to Erode  and  it would  go  to show that the object of constructing the choultry itself is to enable the persons other than the family members  of  Ellu  Iyer  to  stay  there. Therefore it cannot be stated that the temples  have  been  constructed  in their  patta  land  and  the  object  of constructing  the  temples  is  only  to benefit their family”.

6. The Poojari  of  the  aforesaid temples  deposed

before the trial  court and stated categorically

in his deposition, which was accepted by the

High Court also,  that the Pooja  articles  were

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received from the public during the Pooja time

and in turn, he used to give  Prasadam to the

public.  It  was  also  stated  by  him  that

utsavams  were  used  to  be  conducted  during

“Skanda  Sasmti”,  “Thai  Pyosam”,  and

“Panchuni  Uthiram”;  and  on  those  occasions,

the deities were taken out as a general custom

in procession through the main roads of Erode

town. It was also admitted by him that during

festival  days and also during the Pooja time,

public  used  to  come  and  offer  their  worship

before the deities and there was no direction

issued to him that he should not perform the

pooja  offered  by  the  public.  The  Poojari  had

also  admitted  before  the  Assistant

Commissioner of the Board that public used to

come  to  the  festival  without  any  obstruction

and  that  they  used  to  offer  donations  and

collect  funds  from  the  public  to  conduct

festivals in the temples. The High Court, in its

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impugned  Judgment,  relied  on  its  decision

reported  in  The  Madras  Hindu  Religious

Endowment Board vs. V.N. Deivanai Ammal

By  Power  of  Attorney  Agent  TV.

Mahalingam  Iyer,  [1952  (II)  M.L.J.  686],

which  held  that  where  there  was  an  Utsava

idol and processions were taken out, it would

indicate the fact that the temple was a public

temple.  This  principle  was  also  reiterated  in

another decision of the Madras High Court in

the case  of  Commissioner,  H.R. & C.E.  Vs.

Kalyanasundara  Mudaliar;  [1957 (II)  MLJ

463],  wherein  it  was  also  held  that  the

provisions of the settlement deed taken along

with the other features such as the existence

of  Dwajasthambam,  Balipeetham and  Utsava

Vigraham and carrying on deity in procession

and  accepting  Deeparadhana  from  the

members  of  the  public  on  that  occasion

conclusively establish that the institution was

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a place of public religious worship conducted

to or for the benefit of the Hindu community in

the village as a place of religious worship and

that it was the public and not a private temple

and fell within the definition of Section 9(12) of

the Madras Act II of 1927. We are in respectful

agreement  with  the  views  expressed  by  the

Madras  High  Court  in  the  aforesaid  two

decisions regarding the principles to be applied

to  come  to  a  finding  whether  the  temple  is

private or public in nature. The evidence at our

disposal  also  shows  that  the  public  at  large

used to offer worship to the Vinayaka Temple

in the platform of Brough Road and also the

Ajaneya  temple  in  the  bank  of  the  river

Cauvery  and  these  temples  were  always

accessible  to  the  residents  of  Erode  and  the

public had always regarded these temples with

great  esteem  and  veneration.  This  Court  in

Deoki Nandan vs. V. Murlidhar & Ors. [AIR

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1957  SC  133],  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 etc. vs.

State  of  Rajasthan  &  Ors.  [AIR  1963  SC

1638],  held that where evidence in regard to

the  foundation  of  the  temple  is  not  clearly

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

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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.

7. 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

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findings arrived at by all the Courts below that

the  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.   In  the  present  case,  as  we  have

already  held  that  all  the  Courts  below,  on

entire consideration of the materials on record,

had  held  that  the  temples  in  question  are

public  in  nature,  it  is  difficult  for  us  to

interfere  with  such  finding  of  fact  in  the

exercise of our power under Article 136 of the

Constitution of India.        

8. In view of our discussions made hereinabove,

we do not find any infirmity in the findings of

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the High Court as well as of the trial court to

hold that the aforesaid temples were public in

nature and the appellants had failed to prove

successfully  that  the  same  were  private  in

nature.   

9. For the reasons aforesaid, we do not find any

infirmity  in  the  impugned  judgment  and,

accordingly, we dismiss the appeal. In the facts

and circumstances of the case, there will be no

order as to costs.  

…………………….J          [Tarun Chatterjee]

New Delhi;         ……………………J. December 18, 2008. [Aftab Alam]

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