http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: T.D.GOPALAN

       Vs.

RESPONDENT: THE  COMMISSIONER  OF  HINDU  RELIGIOUS  AND  CHARI-   TABLE

DATE OF JUDGMENT04/05/1972

BENCH: GROVER, A.N. BENCH: GROVER, A.N. HEGDE, K.S.

CITATION:  1972 AIR 1716            1973 SCR  (1) 584  1972 SCC  (2) 329

ACT: Madras Hindu Religious Endowments Act (2 of 1927), s. 9(12)- Temple,   whether  public  or  private-Characteristics   for determination of.

HEADNOTE: The  members of the family of the plaintiff who belonged  to the Saurashtra community had constructed a Mandapam on  land of which they were the owners.  There were a Garbha Griha in front  of the mandapam, stone idols called  Dwarabalakas  on either  side and implements necessary for offering  puja  in the mandapam.  But there were no Dwajasthamba, Balipeeda  or Gopuram.   The authorities under the Madras Hindu  Religious Endowments  Act, 1927, held that the mandapam was  a  public temple  within the meaning of the Act.  A suit filed  for  a declaration that it was a private temple was decreed by  the trial court, but in appeal, the High Court held that it  was a  public  temple, on the grounds that, the members  of  the public  had  been worshipping at the shrine without  let  or hindrance,  and  that  the  temple was  being  run  only  by contributions  and by benefactions obtained from members  of the public. Allowing the appeal to this Court, HELD  : (1) According to the definition in the Act a  public temple  is a place by whatever designation known used  as  a place  of public religious worship and dedicated or used  as of  right by the Hindu community or a section thereof  as  a place religious worship. [592C] The  Saurashtra community maintained a tradition  of  having private  temples.  in the present case, the  management  and control  over  the mandapam was at all times  with  some  or other  members of the plaintiff’s family.  The  trial  court rightly approached the evidence, oral as well as documentary on  the  principle that once the private  character  of  the temple was established stronger proof was necessary to  hold that  the temple was subsequently dedicated to  the  public. The   evidence  produced  by  the  parties   was   carefully considered  and analysed, and, in discussing  the  evidence, the  trial  court  gave detailed reasons  for  accepting  or rejecting  the  evidence of a particular  witness.  [587C-E; 590F] The trial court held that thee was no satisfactory  evidence

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

that  any donations had ever been collected from members  of the public; that there was no evidence to establish that the deity  was ever taken out in procession or that  any  person who  was not a member of the ’family had ever performed  any religious festival in the temple; and that the case set out- by  the defendant in the pleadings that there had been  user of  the  temple by members of the Saurashtra  community  was inconsistent  with the evidence produced on their behalf  to the  effect that any member of public, whether a  Saurashtra or  non-Saurashtra, had a right to worship  therein.  [587H; 588A-C] (2)The High Court was in error in reversing the findings  of the trial Court.    No  attempt whatsoever was made  by  the High Court to discuss the reasons which the trial court  had given  for  not  accepting  the  evidence  of  the   defence witnesses.  In the matter of appreciation of evidence if the 585 trial  court had given cogent and detailed reasons  for  not accepting  the testimony of a witness, the appellate  court, in  all  fairness to it, ought to deal  with  those  reasons before  proceeding to form a contrary opinion.   Apart  from this, the High Court did not consider the evidence produced by the plaintiff (appellant) without which matters could not be  properly appreciated or explained.  The  conclusions  of the trial court receive support from the entire material  on record, and this Court is not in a position to know on  what grounds  the  High Court disagreed with  the  reasons  which prevailed  with  the  trial court for  not  relying  on  the evidence  of  the  witnesses produced  by  the  respondents. [589F-H; 590A] (3)  The  High Court also erred in not attaching  importance to the following matters : (a) the origin of the temple  had been  proved to be private, (b) the management had  remained throughout in the members of the appellant’s family, (c) the absence  of  any  endowed property and (d)  the  absence  of Dwajauthamba or Nagara bell or Hundial in the temple. [592H; 593A-B] (4)  The  origin  of  the temple, the manner  in  which  its affairs  were  managed, the nature and extent of  the  gifts received  by it, the 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 are factors which go  to  establish whether a temple is public or private.In    the    present case,the mandapam had somephysical  characteristics  and persons  which are generally found in a public  temple. It  was  also published that persons who did not  belong  to appellant’s  family used to worship at the temple  and  make offerings therein.  There were also  some jewels and   other articles  in  the  temple.  But  the  determination  of  the question           whether the temple was public or  private did  not  depend on some facts or set of facts  alone.   The entire  evidence,  both  documentary and  oral,  had  to  be considered as a whole. [573B-E] Babu  Bhagwan Din & Others v. Gir Har Saroop & Ors. 67  I.A. 1, applied. Goswami  Shri  Mahalaxmi Vahuji v.  Rannchboddas  Kalidas  & ors., [1970] 2 S. C. R. 275, followed. Mundancheri  Koman v. Achuthan Nai & Ors., 61 I.A.  405  and Mad. ras Hindu Religious Endowments Board v. V. N. D. Ammal, [1953] 2 M.L.J. 688, referred to.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 742 of 1967. Appeal  from the judgment and decree dated April 4, 1960  of the Madras High Court in Appeal No. 334 of 1956. M.  Natesan,  K.  S. Subramanian and  K.  Jayaram,  for  the appellant. A. V. Rangam and A,.  Subhashini, for the respondent. The Judgment of the Court was delivered by Grover, J.-This is an appeal by Certificate from a  judgment of the Madras High Court. The appellant’s predecessor in office T. G. Kuppuswamy  Iyer filed  on  April  14, 1950 a suit  in  the  District  Court, Madurai,  under  s.  84(2) of  the  Madras  Hindu  Religious Endowments Act, 3-L152SupCI./7 586 (Act  11  of  1927) against the  respondent  and  two  other persons who are not parties to the appeal for a  declaration that the suit Mandapam was a private Mandapam, i.e.,  family property  of  Thoguluva  Thirumalier and was  not  a  temple covered  by the provisions of the aforesaid Act.  This  suit had to be instituted because the authorities appointed under the  Madras  Act 11 of 1927 held that the  premises  No.  29 South   Masi  Street,  Madurai  wherein  the  idol  of   Sri Srinivasaperumal and certain other idols Were located was  a temple  within  the meaning of the said Act.   The  District Judge  decreed-the suit in favour of the appellant  but  the High  Court, on appeal, reversed that judgment and passed  a decree holding that the premises constituted a temple.   The appellant thereupon filed a petition for leave to appeal  to this  Court  but  the  High  Court  refused  to  grant   the certificate.   The matter was brought to this Court.   By  a judgment  which  is reported in T. D. Gopalan v.  Commr.  of Hindu  Religious  & Charitable  Endowments,  Madras(1)  this Court directed that the subject matter of the dispute should be  ascertained  with  reference to the claim  made  by  the plaintiff in his plaint.  Consequently the valuation of  the property  should have been done according to the claim  made in  the plaint, namely, that the property was  private  pro- perty  of the family capable of alienation.  Thereafter  the High  Court  granted a certificate on determination  of  the value of the suit property. The  only question which had to be decided by  the  District Court and the High Court was whether the property in dispute was  a  private  Mandapam  and not  a  public  temple.   The District  Judge appointed a Commissioner to submit a  report regarding  the  physical  features  of  the  property.   The Commissioner  reported that the suit premises was  a  temple and in front of it there was a Garbha Graha on either  side. There  were  two  stone  idols  called  Dwarabalakas.    The implements  necessary for offering puja were also  found  by the Commissioner.  But there was no Dwejasthamba,  Balipeeda or Gopuram. There  is no dispute, that the premises where the temple  is situ.ate originally belonged to one Kuppiyan.  A decree  was obtained by Tirumalaiyyan against Kuppiyan and in  execution of  that  decree  the property was put  to  sale  by  public auction.   It was purchased by Tirumalaiyyan in  1885  (vide Ext.   B-1-extract from the suit register dated  14-1-1885). The  title to the property thus vested in Tirumalaiyyan  and the  members of the family who later on came to be known  as Thoguluva family. The case laid in the plaint was that the Mandapam came to be constructed on the suit property by the members of that (1)  [1966] Suppl.  S.C.R. 154 5 87

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

family  which  belonged to what is known as  the  Saurashtra community in Madurai town.  It was a private Mandapam  which was in the exclusive and absolute control of the said family and worship was performed there for the spiritual benefit of the  members of the Thoguluva Tirumalaiyyam family.,  It  is common  ground that at all times the management and  control over  the  Mandapam was with some or other  members  of  the Thoguluva family.  In 1932 or 1933 some shops in the eastern and western side of the Mandapam were constructed for  which the  Municipality  levied a tax which had been paid  by  the members of the Thoguluva family which was in the  management of the temple. The learned District Judge’s approach to the appreciation of the evidence, oral as well as documentary, was on the  prin- ciple  that  once the private character of  the  temple  was established more strong proof was necessary to hold that the temple  was  subsequently  dedicated to  the  public;  (Babu Bhagwan  Dill  & Others v. Gir Har Saroop &  Others(1).   He considered  the  evidence produced by the  parties  and,  in particular, carefully analysed the evidence led on behalf of the  defendants according to whom the Mandapam was a  public temple.   While  discussing  the evidence  of  each  of  the witnesses  the  learned  judge  gave  detailed  reasons  for accepting or rejecting the evidence of a particular witness. Before  him  the  defendant  had  sought  to  establish  the dedication of the temple to the public by producing evidence on  the following points : (1) Subscriptions were  collected by  G.  Rama Ayyangar and his descendants  from  the  public because  the members of the Thoguluva family stopped  giving any  financial  help to the temple; (2) Shops in  the  front Mandapam were constructed with public donations and even for the  Kumbabishekan public funds were collected; (3)  D.W.  6 who  did  not belong to the Thoguluva family was  doing  the Mandagapadi;  (4) There used to be a procession on  Vaikunta Ekadasi  day the expenses of which were met by D.W.  7;  (5) There  were  jewels  and other  articles  used  for  worship donated  by members of public which were in the  custody  of Srimathigal Sangam; (6) On each of the Navaratri days people who did not belong to the Thoguluva family did the  Ubhayam; (7)  The  worshippers had been making offerings  during  the daily pooja as of right and were participating in the  daily Neivedyams, (8) That there was a Nagara, bell and Hundial in the suit temple; (9) That there was Utsava idol in the  suit Mandapam, The  learned  District Judge found : D.Ws. 3, 4  and  8  who belonged  to the Thoguluva family had played into the  hands of  the  opposite camp. (ii) D.W. 3 was  disbelieved  mainly because 67 I.A.P.I. 588 he claimed that he was the Manager for some time and that he had  handed over all the charge papers and account books  to the  plaintiff  at the meeting at which  the  plaintiff  was appointed manager.  But in a previous tatement Ext.  A-17 he had  admitted that there was no record to show that  he  had handed over the charge to the plaintiff. (iii) The burden of proving that donations were collected from the public was on the defendants as they were seeking to establish  dedication of a temple which was once private in character.  There  was no  satisfactory  evidence  that  donations  had  ever  been collected  from  members of the public.  D.Ws. 2 and  6  who claimed to have made such contribution could not produce any account books which contained any such entries although they were  running  trade  and business. (iv)  There  were  clear contradictions  in  the statements of DWs. 4 and 8  on  some

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

material  matters and therefore their evidence could not  be relied  upon.  (v)  The evidence of P.W.  1  read  with  the recitals in Ext.  B-5 negatived any inference of any  public donation having been collected for the building of the shops or for  the Kumbabishekam. (vi) The statements of DWs. 7 & 8 when  considered in the light of the other evidence did  not establish  that the deity was taken out in a  procession  as alleged   by   the  defendants.  (vii)  It  had   not   been satisfactorily  proved that any non-Thoguluva performed  any of  the  Mandagapodies on Navaratri day or that  any  monies were  so  collected for taking the deity  in  procession  on Vaikunta  Ekadasi day. (viii) The evidence of D.Ws. 2 and  6 on  the  question of the expenses of the  Nagara,  bell  and Hundial was negatived by the absence of their mention in the report  of  the Commissioner.  There was no mention  of  the Hundial  even in some earlier affidavits or petitions.  (ix) Even  defendants  2  and  3 did not  say  in  their  written statements that there had been any user of the temple by the public as of right.  They had only asserted that members  of the  Saurashtra public were worshipping there as  of  right. It  was  pointed  out by the learned  judge  that  a  temple worshipped even by a section of the public would be a public temple but the evidence which had been produced on behalf of the  defendants  was to the effect that any  member  of  the public whether a Saurashtra or a non-Saurashtra had a  right to workship there.  The case as laid in the pleadings and as developed in the evidence was thus inconsistent. The  High Court observed that the origin and history of  the shrine  could  not be traced with any degree  of  continuity owing  to  the  paucity  of  the  evidence  on  the  record. Reference  was, however, made to the auction sale.   It  was not disputed before the High Court that the property  formed the  subject  matter of the court sale  comprised  the  suit property.  Before the High  589 Court  the plaintiff relied on Ext.  B-1 for two purposes  : (1) It showed that the property was private secular property and (2) the title to the property became vested in Thoguluva Tirumalliyan and members of his family.  The observation  of the High Court on these contentions was, "the document, Ext. B-1  (a) lends considerable support to these contentions  of the plaintiff".  The High Court, however, proceeded to  note that  in the description of the property in Ext.  B-1  there was a mention of Garbha Graha Prakaram and vacant site  etc. These  terms  were  generally associated  with  only  public temples.  According to the High Court there was no  evidence to show how the worship at the shrine was conducted and  who provided  the necessary funds and further how  the  property was treated by the public authorities like the Government or the  Municipality.  It was common ground, however, that  the shrine  was a popular one at least among the members of  the Saurashtra  community  and that Nithyapadi pooja  was  being performed  at  the shrine just as in public  temples.   Par- ticular reference was made by the High Court to the expenses of  stone  images  which were to be installed  in  the  suit premises  in 1947 the offer of the gift having been made  by persons who did not belong to the Thoguluva family.  In Ext. B-4  the donors offered to make three stone images at  their cost  and  also offered a sum of Rs. 350/- for  meeting  all expenses  in connection with the installation of newly  made idols and the various ceremonies which were to be  performed in  connection with the same.  An invitation Ext.   B-5  was issued  in  that connection for a  Mahakumbabishakam  to  be celebrated  on  January 27, 1947.  In this,  invitation  the plaintiff  styled  himself  as  the  Honorary  Secretary.The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

donors  were described therein as the Udhayadars.  On  March 17, 1947 the plaintiff wrote to the donors requiring them to pay  Rs. 100/- every month towards the pooja at the  shrine. This  demand was said to have been made on the basis of  the alleged  agreement on the part of the donors to furnish  the necessary  expenses  for running the institution  after  the images were duly installed.  The High Court felt that it was difficult  to  conceive  of the owner of  a  private  temple receiving gifts of images from strangers and installing them in  his  temple; and it was impossible  to  reconcile  the demand for contributions with the claim that the temple  was a private one. The High Court next proceeded to reproduce a summary of  the statement   of  each  of  the  witnesses  produced  by   the defendants.   No attempt whatsoever was made to discuss  the reasons  which the learned District Judge had given for  not accepting  their evidence except for a  general  observation here and there that nothing had been suggested in the cross- examination of a particular witness as to why he should have made  a  false  statement.  We apprehend  that  the  uniform practice in the matter of appreciation of evidence has  been that if the trial court has given cogent and detailed 590 reasons  for  not accepting the testimony of a  witness  the appellate  court  in all fairness to it ought to  deal  with those  reasons before proceeding to form a contrary  opinion about accepting the testimony which has been rejected by the trial  court.  We are, therefore, not in a position to  know on  what grounds the High Court disagreed with  the  reasons which  prevailed  with the learned District  Judge  for  not relying  on  the evidence of the witnesses produced  by  the defendants. It seems that the approach of the High Court was also  some- what   influenced  by  the  observations  of  the   Judicial Committee  of  the  Privy Council in  Mundancheri  Koman  v. Achuthan  Nair & Others(1) that in the greater part  of  the Madras  Presidency private temples were practically  unknown  and  the  presumption  was  that  the  temples  and   their endowments  formed  public  religious  trusts.   This   was, however,  not the case in Malabar where large tarwads  often established private temples for their own use.  Finally  the High Court held that the temple was a public temple.   After stating some other facts which were found, presumably  after believing  the evidence produced by the defendant, the  High Court made two observations which may be reproduced :- (1)  "Admittedly  the  members  of  the  public  have   been worshipping at the shrine without let or hindrance. (2)  ....  The  evidence on record shows  unmistakably  that this  temple  was  being run only by  contributions  and  by benefactions obtained from members of the public." Mr.  Natesan  who appears for  the  plaintiff-appellant  has assailed  the  whole  approach  of the  High  Court  to  the question of the character of the temple which, according  to him,  had been proved to be private in origin.  It has  been contended by him that the usual state of affairs to be found in Madras as per the observations of the Privy Council could not  be  applied to the case of Saurashtra  community  which migrated  from  the territories which now form part  of  the State of Gujarat centuries ago.  This community, has,  apart from several other individual characteristics, maintained  a tradition of having private temples.  Moreover if the origin of  the temple had been proved to be private then  according to  the law I-aid down by the Privy Council itself  in  Babu Bhagwan  Din’s case dedication to the public was not  to  be readily inferred.  Such an-inference, if made, from the fact

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

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 offer- (1)  61 T.A. 405. 591 ings  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 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 Vahuii v. Rannchboddas  Kalidas  & Others(1)  it was pointed out that the appearance  though  a relevant   circumstance  was  by  no  me=   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 factors that went to  establish whether a temple was public or private. Mr. Natesan says that if the evidence of the witnesses pro- duced  by the District Judge then there will be  hardly  any features  or  circumstances  barring some  of  the  physical features  of the temple and the fact that people  have  been allowed  to  worship  and take part  in  the  festivals  and ceremonies and even to make some offerings, (though  without their having the right to worship in the temple) which would be sufficient to make a temple which was private in origin a public temple.  According to Mr. Natesan even the  witnesses of the defendants had shown consciousness of the temple beng private.   He  has  laid a great deal  of  emphasis  on  the absence  of any property attached to the temple which  might be  endowed.   He says that admittedly only two  shops  were build by the family and out of the rents received from those shops together with other contributions made by the  members of the family the expenses of the temple were being met.  He has relied a great deal on the decision of a Division Bench, of  the Madras High Court in The Madras Hindu Religious  En- dowments  Board  v. V. N. D. Ammal(1).  There  reliance  had been  placed on the following features : (1) that  when  the temple  was built in 1919 Kumbabishekam was performed  on  a grand  scale; (2) the respondent had made Utsavamurthis  and built Chaprams and the deities were also taken in procession on spe- (1) [1970]2 S.C.R. 275.-- (2) [1953] 2 M.I.J. 688. 592 cial occasions; (3) a Gurukkal had been, engaged to  perform the pooja regularly and (4) the temple has got a Gopuram and other  features which are usually found in a public  temple. This is what Venkatarama Ayyar J., as he then was,  observed : "It is true that the facts that there is an utsava idol  and there  are processions are generally indicative of the  fact that it is a public temple.  But then no property has  been

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

dedicated  for  the upkeep of the temple.   The  worship  is maintained and the expenses are met from out of the  private funds  of  the respondent.  In the absence of  any  property being  dedicated  for  the maintenance  of  worship  in  the temple,  it is difficult to hold that, the temple  has  been dedicated to the public". At this stage the provisions of s. 9 (12) of the Madras  Act 2 of 1927 which defines a temple may be noticed.   According to  that  definition it is a place by  whatever  designation known  used  as  a place of  public  religious  worship  and dedicated or used as of right by the Hindu community or  any section thereof as a place of public religious worship.   In the  Madras  Hindu Religious and Charitable  Endowments  Act (Act 22 of 1959) the definition of "temple" is given in sub- clause (20) of s. 6.- It is practically in the same terms as in the earlier Act. In our judgment the, High Court was in error in holding that members  of the public had been worshipping at the  Mandapam in  dispute without let or hindrance.  In arriving  at  that conclusion  it  appears  to  have  believed  the   witnesses produced  by  the  defendants.  It has also  relied  on  the principle  that in the absence of any evidence to show  that such  user was permissive it could be presumed that, it  was as  of  right.  We have already pointed out  that  the  High Court,  while appraising the evidence of the witnesses,  has not  discussed the reasons and grounds given by the  learned District Judge for not relying on the defendant’s witnesses. Mr.  A. V. Rangam who appears for the contesting  respondent has  endeavoured  to  take us through the  evidence  of  the witnesses  for demonstrating that the reasons given  by  the card the testimony of the defendants witnesses.  But we  are learned District Judge were neither cogent nor sufficient to disunable  to  agree  with  him  that  the  appreciation  of evidence  by  the  learned Judge was open  to  criticism  as suggested  by him.  Apart from this the High Court  did  not consider  the  evidence produced by  the  plaintiff  without which  many  matters could not be  properly  appreciated  or explained.   The other finding of the’ High Court  that  the temple  was  being  run by  contributions  and  benefactions obtained from members of the public was also based mainly on the evidence produced by the defendants.  In our  593 opinion the conclusion of the learned District Judge on that point receives more support from the entire material on  the record It  is  significant  that  the High  Court  did  not  attach sufficient importance to three matters which, in the present case, were of material consequence.  The first was that  the origin  of the Mandapam had been proved to be private.   The second  was that its management had remained  throughout  in the  members  of the Thoguluva family.  The  third  was  the absence  of any endowed property.  There was no  Gopuram  or Dwajasthamba  nor  a  Nagara bell nor Hundial  in  the  suit temple.    The  learned  District  Judge  adverted  to   the evidence,  on  all these and other relevant matters  and  we concur with him in his conclusions. It   is  true  that  the  suit  temple  had  some   physical characteristics and features which are generally to be found in  a public temple.  It was also established  that  persons who were outsiders in the sense that they did not belong  to the Thoguluva family used to come and worship at the  temple and  made offerings there.  There were also some jewels  and other articles in the temple.  But the determination of  the question  whether the temple was public or private  did  not depend  on  some facts or set of facts  alone.   The  entire

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

evidence,  both documentary and oral, had to be,  considered as  a  whole keeping in view the principles already  noticed by  us.   We are satisfied that the learned  District  Judge came  to  the correct conclusion that the  suit  temple  was private in character. For all the above reasons the appeal is allowed, the  judg- ment of the High Court is set aside and that of the District Judge restored.  The appellant will be entitled to costs  in this Court. Appeal allowed.  V.P.S. 594