584

T.D.GOPALAN

v.

THE COMMISSIONER OF HINDU RELIGIOUS AND CHARI·

TABLE ENDOWMENTS, MADRAS . ~

May 4, 1972

[K. S. HEGDB AND A. N. GROVER, JJ.]

Mudras Hi11d11 Religious Endowments Act (2 of 1927), s. 9(12)­

Templt, whethe1· public or privak-CharlicteriJ·tr'cs for detern1inatlon of.

'1be members of the family of the plaintiff who belonged to the

"1uwbtra community had construe~ a Mandapam on land of whitoh

they were the owners. There were a Oarbha Oriha in front of the malt­

dapam,

o!Dne

idols called Dwarabalakaa on either side 'and implement..

neee8W'y for offering puja in the mandapam. But there were no Dwa}a•·

1hamba, 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 wa,, 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 P,uhlic.

Allowing the appeal to this Court,

HELD :

(1) According to the definition in the Act a public

temp.e 1s

n place by \Vhatever designation known used as a place of public rcligiou!

worship and dedicated or used as of right by the Hindu community or a

section thereof .ls a place religious worship. [592C]

The Saurashtra community maintained a tradition of havin& private

tempJe,. In the present cose, the management and control over the man­

dapam \Va~ at all times with some or other members of the plaintiff's

family. The trial court rightly approached the evidence, oral as well a!

documentary on the principle that once the private character of the temple

was established stronger proof was necessary to hold that the temple was

>ubscqucntly dedicated

to

the public. The evidence produced by the

parties was carefully cor.sidercd 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; 590FJ

·rte trin.1 court held that 'there was no satisfactory evidence 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 proce!­

sion or that any person who \Vas not a member of the !family had ever

>JerformcJ any religious festival in the temple; and that the case set out

hy the defendant in the pleadings that thero 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, "vhether a Sn.urashtra or non-Saurasbtra. had a right to worship therein.

f587H; .<SSA-CJ

(2 • The High Court was in error in reversing the finding.o of the trial

Court.'

No attempt

what..aever was made by th<J High Court to discuss the

re-a~ns hich the trial court had given for not accepting the evidence of

the defcnc~ witnesses. In the matter of appreciation of ev'idence if the

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T. D. GOPALAN V. COMMR. RELIGIOUS ENDOWMENTS 585

(Grover, J.)

trial com! had given cogent and detailed reasons for not ,.Q:epting the

testimony of a witness, the appellate court, in all fairness !IO it, ought to

deal with those reasons before proceeding to form a contrary opinion.

Apart from this, the

High Court did not

coMider the evidence produc:W

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 reciord, and this Court is not in a pooi-

tion 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. L589F-H; 590AJ

(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 appeUant's family, (c) the absence of anr endowed property and (d)

the absence of Dwajasthamba or tVagara be! or Hundial in the temple.

[592H; 593A-BJ

( 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

cxercioed 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 !be present case, the mandapam had

some

physical characteristic& and features which are generally found in a

public temple.

It was also established 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 9eterminatioo of the question whether the temple wa~ 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-EJ

Babu Bha11wan Din & Others v. Gir Har Saroop & Ors. 67 I.A. 1,

applied.

Goswami Shri Maha!axmi 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, U953] 2

M.L.J. 688, referred to.

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

G appellant. .

A. V. Rangam and A. Subhashini, for the respondent.

The Judgment of

the Court was delivered biY

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

Endo~ents Act'.

3-Ll52SupCI./7

586 SUPREME COURT REPORTS (1973) l S.C.R.

(Act II 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

covert..! l:>y the pro­

visions of the aforesaid Act. This suit had to be lllot;tuted

because the authorities appointed under the Madras Act II u~

1927 held that the premises No. 29 South Masi Street, Madurai

wherein the idol of Sri Srinivasaperumal and certain other idols

were locat~d 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 appel­

lant thereupon filed a petition for .,leave to appeal to this Court

but the High Court refused to grant the cc. ''ficate. The matter

was brought to this Court. By a judgment wh1c.. : "

0ryorted in

T. D. Gopalan v. Commr. of Hindu Religious & Charitav.

1

... :'~­

dowments, 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 acco-ding to the claim

made in the plaint, namely, that the property

was private

pro­

perty of the family caoable of alienation. Thereafter the High

Court granted

a certificate on determinalion of the value of the

suit property.

The only question which had to be decided

biy the District

Court and the High Court

was whether the property in dispute

was a private Mandapam and not a public temple.

T':~ District

Judge apuointed a Commissioner to submit a report regarding the

physicdl 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

situate originally belonged to one Kuppiyan. 'A decree was

obtained by Tirumalaiyyan against Kuppiyan and in execntion

of

that decree the property was put to sale by public auction. It

was purchased by TirumaJa;yyan in 1885 (vide Ext. B-1-extract

from the suit register dated 14-1-1885). The title to the oro­

perty thus vested in Tirumalaiyyan and the members .of the family

who later on caine to b~ known as Thoguluva famlly.

The ca'e laid in the plaint was that the Mandapam came to

~e constructed on the suit property by the members of. that

(I) [1966] S•;ppl. S.CR. 154

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T. D. GOP ALAN v. COMMR. RELIGIOUS ENDOWMENTS 5 8 7

(Grover, !.)

"' family which belonged to what is known as the Saurashtra com­

munity

in Madurai town. It was a private Mandapam which

was in the

exclu;ive 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

u over the Mandapam was with some or other members of the

Thoguh;va family. In 1932 or 1933 some shops in the eastern

and

.,1·c.\·c;·n

side of the Mandapam were constructed for which

the Municipality levied a tax which had been paid by the mem­

bers of the Thoguluva family which was in the management of

the temple.

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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 eitab­

lished more strong proof was necessary to hold that the temple

was subsequently dedicated to the public; (Babu Bhagwan D111

& Others v. Gir Har Saroop &; 01hers(1). He considered th~

ev;idence produced by the parties and, in particular, carefully

analysed the evidence led on behaJ.f of the defe.ndants 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

par-

ticular 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

de~ 11~t lJelong to the Thoguluva family was doing the Manda­

gapad1; (4) There cised to be a procession on Vaikunta Ekadasi

day foe expenses of.which were met by D.W. 7; (5) There were

iewe!s and ?!her art1cl:s used for worship donated by members of

pub!Ic which were Ill the custody of Srimathigal Sangam:

(6) On each cf the 1:1ava;atri days people who did not belong

to the Thogul~va fam1!y did t~e Ubhayam; (7) The worshippers

had been ,n~ak1?g p!fermgs d~rmg the daily pooja as of right and

were par1Jc1patmg 1n the dally Neivedyams; ( 8) That there was

a Nagan1, b~ll a~d Hundi~l in the suit temple; (9) That there

was Utsava idol m the smt Mandapam.

The learned District Judge found : D.Ws. 3, 4 and 8 who

belonged !O the Th~guluva family had played into the hands of

the opposite camp. (ii) D.W. 3

was disbelieved mainly

became

(I) 67 1.A.P. l.

588 SUPREME COURT REPORTS [1973] l S.C.R.

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

i:n a previous tatement Ext. A-17 he had

ad­

mitted that there was no record to show that he had handed over

the charge

to the plaintiff. (iii) The burden of proving that

dona­

tions were collected from the public was on the defendants as

they were seeking to establish dedication of a temple which was

<mce private in character. There was no satisfactorv evidence

that donations had ever been collected l'rom memllers of the

public.

D.Ws. 2 and 6 who claimed to have made such

con­

tribution could not produce an~· account books which contained

any ~u~h "'"'~::, di..:1vllgh they were running trade and business.

(iv) Th!lre were clear contradictions in the statements of DWs.

4 and 8 on some material mailers and therefore their evidence

could not

be relied upon. (v) The evidence of P.W. I 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 Kumbahishekam. (vi) The state­

ments 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

affi­

davits 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·fight to workship

there. The case

as laid in

th~ 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 a;ny 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 sul:1ject matter of

ihe court sale comprised the suit property. Before the High

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T. D. GOPALAN v. COMMR. RbLiuiOG~ ENDOWMENTS (Grover, J.) 589

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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 Tiru­

malliyan 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 plain­

tiff". The High Court, however, proceeded to note that in the

descriptioq of the property in Ext. B-1 there was a mention of

Garb ha Graha Prakaram and vacant site. etc, These terms were

generally associated with only public temples. According to the

High Cour: :here was no evidence to show how the worship at the

shrine

was conducted and who provided the necessary funds and 1 u .. : .. '" how the property was treated by the public authorities like

the Governm~'" '" ···~ ~,fnnicinalitv. It was common ground,

however, that the shrine was a .iopular on<! at ieast among the

members of the Saurashtra community and that Nilhyapadi pooja

was being performed at the shrine just as in public tepiples. Par­

ticular reference was made by the Hizh Court to the ~xpenses of

stone

images which

were to be installed in the suit premises in

194 7 the offer of the gift having been made by persons who did

not belong to the Thoguluva family. In Ext. B-4 the donor5

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

p\:rformed in connection with the same. An

rnvilct(;~~' Fvt B-5 was issued in that connection for a Maha­

k"mbabishakam to be ce1ebrateci uu ;aru.taly 21, i54'/, In this

invitation the plaintiff styled himself as the Honorary Secretary.

The 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

~xpenses for running the ·institution after the images were duly

mstalled. 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 impos­

sible to reconcile the demamd 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 Ditrict Judge had given for not accepting their evidence

except for a

general observation here ari there that nothing had

blcen 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

eVid­

ence has been that if the trial court has given cogent and detailed

590 Slll'RfoME COl'RT REPORTS (1973)1 S.C.R.

reasons for no~ acccptin_g the testimony of a witness the appellate

court m all fairness to ii ought to deal with those reasons before

proceedmg to form a contrary opinion about accepting the testi­

i;nony which has been re1ccted by the tri~l court. We are, 'there­

tore, not m a pos1t10n to know on what grounds the Hich Court

dt?agrced with the reason~ which prevailed with the· learned

D1stnct Judge for not

rely1,ng on the evidence o.f the witnesses

produced

by the defendants.

It seems that the approach of the High Court w.as

·also som~­

what influenced by the observations of the Judicial Committee of

the Privy Council in Mundancheri Koman v. Achuthan Nair &

· -0.hers(

1

) that in the greater part of the Madras Presidency pri­

vate temples were practically unknown and •he 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. Final·

ly the High Court held that the temple was a public temple. After

stating some other facts which were found, rresumably after

believing the evidence produced

b!y 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

o{ 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 fo11ind 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 ~nturies ago. This

community, has, apart from several other

individJ1al

characteris­

tics, maintained a tradition of having private temples. Moreover

if the origin of the temple had tr-en proved to be private then

according to the law laid down by the Privy Council itself in

Babu Bha{?wan Din's case 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 worsh;ppers

should be turned away: and,

as

worship _generally implied offer-

(!) 61 I.A 405.

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' .J. GOPALAN V. COMMR. '<ELIGlOUS ENDOWMENTS 591

(Grover, J.)

:ugs of some kind, it was not to be expected that the managers

u! a private temple should in all circumstances desire to dis­

courag~ 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 p,[ right. In Goswami Shri Mahalaxmi Vahuji v.

Rannchboddas Kalidas & Others(1) it was pointed out that the

appearance though a relevant circurnstance 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

cour'e and they could take part in the , estivals 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 expense.

were

being met by public contribution, it would be safe to pre­

sume that the temple was public. In short the origin of the

temple the manner in which its affairs were managed the ri1turc

and exten: cf the gifts received by it, rights exercised by devotee'

in regard to worship therein, the consciousness of the manager

and

the consciousness of the devotees themselves as to the

pub­

lic character of the temple were factors that went to estabfah

whether a t~mple was public or private.

Mr. Natesari says that

if the evidence of the .witnesses

pro­

duced by the defenda.nts is not accepted as was not rightly accept­

ed by the District Judge then there will be hardly any feature.~

or circumstances barring some of the physical features of the

temple and the fact that people have been allowed to worship

ond take part in the festivals and ceremonies and even to make

some offerings, (though without their having the righ(...oto wor­

ship 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 con­

sciousness of the temple tieng private. He has laid a great deal

of emp':asis on the absence of any property attached to the

temple which might

be

endO\'(ed. 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

c.f the Madras High Court in The Madras Hindu Religious En­

dowments Board v. V. N. D. Ammal('). 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

respQndent had made Utsavamurthis and built

Chaprams and the deities were also taken in procession on spe-

<I) [1970] ~ S.C.R. 275. (I) [1953] 2 M.1..l. 618.

592 SUl'-'EME COU.RT REPORTS [19'73] l S.C.R.

cial occasions; ( 3) a Gurukkal had been engaged to perfom1

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

t" -:act that it is ·a public temple. But then no pro­

perty has been dedicated for the upkeep of the temple.

The worship

is maintained an.d the expenses

are met frdm

out

of the private funds of the respondent. In the

ab­

sence of any property being dedicated for the main­

tenance 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 M,adras 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 Reli­

gious 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 conclu­

sian it appears to have believed the witnesses produced by the

defendants.

It has also relied on the principle that in the

ab­

sence 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 testin10ny of the defendant's witnesses. But we are

learned District Judge were neither cogent nor sufficient to dis­

unable 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 contributiqns and

benefactions obtained

from members of the public was also based

mainly

on the evidence produced by the

defendllillts. In our

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T. D. GOPALAN v. COMMR. RELIGIOUS ENDOWMENTS (Grover, J.) 593

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opinion the conclusion of the learned Dis•rict Judge on that point

receives more support from ilie entire material 011 the record.

It is significant that the High Court did not attach sufficient

importance to tilree matters w'1ich, in the present casr, were cf

material consequence. The first was that the origin of the Man­

dapam had beeu proved <o be private. The second was that

its managetllent had remained throughout in the members of the

Thoguluva family. Thi: 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

Di~­

trict Judge adverted to the evidence on all these and other rele­

vant matters and we concur with him in his cooclusions.

It is true that the suit temple had some physical characteris­

tics 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 nut belong to the Thoguluva family

used to come aind worship at the temple and made offerings

there. Tlkre 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

bl! considered as a wl:lele keeping in view the prin­

ciples 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

i~ 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.