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PETITIONER: GURPUR GUNI VENKATARAYA NARASHIMA PRABHU& ORS.

       Vs.

RESPONDENT: B.G.  ACHIA, ASSISTANT COMMISSIONER, HINDURELIGIOUS AND CHAR

DATE OF JUDGMENT15/04/1977

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. KRISHNAIYER, V.R.

CITATION:  1977 AIR 1192            1977 SCR  (3) 632  1977 SCC  (3)  17  CITATOR INFO :  RF         1981 SC 798  (13)

ACT:             Madras  Hindu Religious and Charitable  Endowments  Act,         1951---S. 6(17) ’Public Temple’.  An inference of dedication         to the public from the fact of admission into the temple and         uses by the public is not correct.

HEADNOTE:             S.  6(17) of the Madras Hindu Religious  and  Charitable         Endowments  Act, 1951 defines a temple as "temple"  means  a         place   by  whatever  designation known, used as a place  of         public  religious  worship, and dedication to,  or  for  the         benefit  of or used as of right by, the Hindu  Community  or         any section thereof, as a place of public religious worship.             The  Deputy  Commissioner,  in a proceeding  u/s  57  of         Madras  Hindu Religious and Charitable Endowments Act,  1951         and  the Commissioner on appeal held that an ancient  temple         founded about 400 years ago known as Varadaraj  Venkataraman         Temple  at  Gurpur  in Mangalore Taluk  in  Karnataka  as  a         ’Public   Temple’.   But  in  the  suit  No.  DS.   106/1961         instituted  by  the appellant trustees of the temple  for  a         declaration  that the temple was a private temple and not  a         temple as defined in s. 6(17) or in the alternative that  it         was  a denominational or sectional temple belonging  to  the         Goud  Saraswat Brahmin Community of Gurpur, the  Subordinate         judge  South  Kanara, held on the evidence that this  was  a         denominational  or  sectional temple belonging to  the  Goud         Saraswat Community and allowed the alternative  declaration.         The  High  Court on appeal found that this was a  temple  as         defined  in s. 6(17) of the Act and taking a different  view         of  the  evidence  held  that the  temple  was  a  place  of         religious  worship dedicated to and used as of right by  the         general Hindu Community and was thus a public temple.         On appeal by certificate the Court,             HELD: (1) It is now well settled that "the mere fact  of         the public having been freely admitted to the temple  cannot         mean  that Courts should readily infer therefrom  dedication         to the public.  The 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."  [635 B-C]             Bihar State Board Religious Trust, Patna v.  Mahant  Sri

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       Biseshwar Das, [1971] 3 S.C.R. 680 (689) referred to.             (2)  In the instant case the circumstances disclosed  in         evidence do not support the inference that Hindus  generally         used  the  temple as a place of worship as  of  right.   The         evidence is to the effect (i) that the temple was founded by         37  Goud Saraswat Brahmin families of Gurpur, (ii) that  the         trustee  managing the temple belonged always to the  members         of said community, (iii) that the lended properties owned by         the temple had all been endowed by members of the Community,         (iv) that none of the witnesses claimed a right of ownership         in  the temple and the small sevas were voluntary, (v)  that         it  was the members of the Goud Saraswat  Brahmin  Community         who were allowed to participate in the more important  cere-         monies.  [634 B-D; 635D]             (3)  The High Court’s finding that "numerous  endowment"         have  been  made by Hindus not belonging  to  Goud  Saraswat         Brahmin  Community, is not subpotted by the evidence in  the         case.   In  the context of the Award (Ext.  A-13)  the  term         general  body  mentioned  therein could only  refer  to  the         members         633         of the Goud Saraswat Brahmin Community and not to the  Hindu         Community generally, because the proceeding concluded by the         decree  was confined to the members of the Community.   [635         A-B]

JUDGMENT:         CIVIL  APPLELLATE  JURISDICTION: Civil Appeal  No.  2176  of         1968.             Appeal from the Judgment and Decree dated the  18-8-1965         of the Mysore High Court in M.F.A. No. 341 of 1964.             S.T. Desai, K.N. Bhat and R.B. Datar for the Appellants.             Narayan Nettar for Respondent.             The Judgment of the Court was delivered by             GUPTA,  J. The only question disputed in this appeal  is         whether a temple, known as Varadaraj Venkataramana Temple at         Gutput in Mangalore Taluk, in Karnataka, is a public  temple         or a temple belonging to Goud Saraswat Brahmin Community  of         Gurpur.             This  is an ancient temple founded about 400 years  ago.         In  a proceeding under section 57 of the Madras Hindu  Reli-         gious  and  Charitable  Endowments  Act,  1951  (hereinafter         referred  to  as the Act), the Deputy  Commissioner  by  his         order  dated  January 17, 1961 held that the  temple  was  a         public  temple and the Commissioner on appeal  affirmed  the         order of the Deputy Commissioner on June 12, 1961.  Thereaf-         ter the appellants who are the trustees of the temple insti-         tuted  a  suit, O.S. No. 106 of 1961, in the  court  of  the         Subordinate  Judge, South Kanara,  for  a  declaration  that         the temple was a private temple and not a temple as  defined         in  section 6(17) of the Act or, in the alternative,  for  a         declaration that it was a denominational or sectional temple         belonging to the Goud Saraswat Brahmin community of  Gurpur.         There was also a prayer for cancellation or modification  of         the order of Commissioner dated June 12, 1961 affirming that         of  the Deputy Commissioner that this was a  public  temple.         The  Subordinate Judge held on the evidence that this was  a         denominational  or  sectional temple belonging to  the  Goud         Saraswat  Brahmin  community  of Gurpur and  not  a  private         temple.   He further held that there was no evidence  before         the  Deputy  Commissioner  justifying his  order  which  was         affirmed  by the Commissioner that it was a  public  temple.         He  observed that "it is incorrect to draw an  inference  of

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       dedication to the public merely from the fact of user by the         public". Accordingly, he allowed the alternative declaration         asked for by  the plaintiffs and modified the order of  June         12, 1961 made by the Commissioner affirming the order of the         Deputy Commissioner dated January 17, 1961.  From the  deci-         sion of the trial court, the respondents preferred an appeal         to  the High Court.  The appellants before us also  filed  a         cross objection contending that the Subordinate Judge should         have  held  that the temple was a private temple and  not  a         denominational  or sectional temple.  The High  Court  found         that this was a  temple  as defined in section 6(17) of  the         Act.   On the evidence also the High Court took a  different         view  from  the trial court and held that the temple  was  a         place of religious worship dedicated to and used as of right         by the general Hindu community and was thus a public temple.         On this         634         view  the  High Court allowed the appeal and  dismissed  the         cross objection.  The appeal before us is by the  plaintiffs         on certificate granted by the Karnataka High Court.             The  Subordinate  Judge held on the  evidence  that  the         temple  was founded by 37 Goud Saraswat Brahmin families  of         Gurpur,  that  the  trustees managing  the  temple  belonged         always to the members of the said community, that the landed         properties  owned  by  the temple had all  been  endowed  by         members  of this community, and that there was  no  reliable         evidence  of  endowment  of any immovable  property  by  any         person  outside  the community.  The  Subordinate  Judge  on         considering the evidence of defendants’ witness Nos. 2 to 4,         on  whom the defendants relied to prove that the temple  was         dedicated to the general Hindu community, found that none of         them  claimed  a  right of worship in  the  temple  and  the         ’sevas’  offered by them were voluntary and the income  from         such  sevas  was also small.  He further found that  it  was         only the members of the Goud Saraswat Brahmin community  who         were  allowed to participate in the more  important  ceremo-         nies.  It was observed that the fact that Hindus other  than         those belonging to the Goud Saraswat Brahmin community  were         not  prevented from worshipping in the temple did  not  "de-         prive  the temple of its sectional character", that  it  was         "incorrect to draw an inference of dedication to the  public         merely  from the fact of the user by the public".  Thus  the         decision  of the Subordinate Judge was that the  temple  was         not  a  public temple because it was not  dedicated  to  the         general Hindu community but for the benefit of Goud Saraswat         Brahmin community of Gurpur.             The  High  Court held that the definition of  temple  in         section  6(17) of the Act covers the temple   in   question.         The  definition  is  as follows:                             ""temple"  means  a  place  by  whatever                       designation  known, used as a place of  public                       religious  worship, and dedicated to,  or  for                       the  benefit  of or used as of right  by,  the                       Hindu  community or any section thereof, as  a                       place  of public  religious worship;"         Even on the findings recorded by the Subordinate Judge, this         would  be  a  temple dedicated to or for the  benefit  of  a         section  of  the  Hindu community and as such covered by the         definition.   The High  Court reversed the decision  of  the         Subordinate  Judge and held that "facts of the present  case         lend  support  to the conclusion that the temple  must  have         been  dedicated  for the benefit of and used  by  the  Hindu         community and is being used by them, as of right, as a place         of  public religious worship". The facts that  weighed  with         the High Court were that Hindus generally came to worship in

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       the temple and were not turned away and that when the  deity         is taken out in procession, members o.f the Hindu  community         other than Goud Saraswat Brahmins also offer "araties".  The         claim made by some of the witnesses for the defendants  that         they used to consult the oracle in the temple also seemed to         the  High  Court a significant circumstance.  But  the  High         Court appears to have overlooked that these witnesses admit-         ted that "before consulting the oracle,         635         the  manager  must  be told of it and it is  he,  who  could         consult  on  their behalf". The High Court  has  recorded  a         finding that "numerous endowments" have been made by  Hindus         not  belonging to Goud Saraswat Brahmin community.  This  is         not  however supported by the evidence in the case.  Another         circumstance which impressed the High Court was the  recital         in  an award (Ext. A-13) which was made part of  the  decree         (Ext. A-3) in a previous proceeding between the members   of         Goud  Saraswat Brahmin community themselves, that the  trus-         tees of the temple should place the accounts of income   and         expenditure   before   the "general  body".   This  "general         body"  according  to  the  High  Court  implied,  the  Hindu         community  generally.  In the context of the award (Ext.  A-         13)  it is however clear that the ’general  body’  mentioned         therein could only refer to the members of the  Goud  Saras-         wat  Brahmin community because the proceeding  concluded  by         the  decree  was confined to the members of  the  community.         The  law  is  now well settled that "the mere  fact  of  the         public having been freely admitted to the temple cannot mean         that courts should readily infer therefrom dedication to the         public.  The value of such public user as evidence of  dedi-         cation  depends on the circumstances which give strength  to         the  inference that the user was as of right".   (see  Bihar         State Board. Religious Trust, Patna v. Mahant Sri  Biseshwar         Das(1).   We find that the circumstances disclosed  in  evi-         dence in this case do not support the inference that  Hindus         generally used the temple as a place of worship as of right.             The appeal is accordingly allowed.  The Judgment of  the         High  Court  is set aside and that of the  trial  court  re-         stored.   In the circumstances of the case we make no  order         as to costs.         S.R.                                     Appeal allowed.         (1) [1971] 3 SCR 680 (689).         502SCI/77--2500--23 - 11-77--GIPF.         636