Civil Appeal No 403 of 1956
Appeal from the judgment and order dated April 11 1956 of the Madras High Court in Appeal No 145 of 1952 arising out of the judgment and decree dated March 31 1951 of the Court of the Subordinate Judge South Kanara in Original Suit No 24 of 1949
MK Nambiyar M L Naik J B Dadachanji SN Andley Rameshwar Nath and P L Vohra for the appellant in CA No 403 of 1956 and respondents in special leave Petition No 327 of 57 897 C K Daphtary Solicitor General of India B B L Iyengar and T M Sen for the respondents in SI No 403 of 56 and petitioner in special leave petition No 327 of 1957
November 8
The following Judgment of the Court was delivered by VENKATARAMA AIYAR J
The substantial question of law which arises for decision in this appeal is whether the right of a religious denomination to manage its own affairs in matters of religion guaranteed under article 26b is subject to and can be controlled by a law protected by article 252b throwing open a Hindu public temple to all classes and sections of Hindus
In the District of South Kanara which formed until recently part of the State of Madras and is now comprised in the State of Mysore there is a group of three villages Mannampady Bappanad and Karnad collectively known as Moolky Petah and in the village of Mannampady there is an ancient temple dedicated to Sri Venkataramana renowned for its sanctity
It is this institution and its trustees who are the appellants before us
The trustees are all of them members of a sect known as Gowda Saraswath Brahmins
It is said that the home of this community in the distant past was Kashmir that the members thereof migrated thence to Mithila and Bihar and finally moved southwards and settled in the region around Goa in sixty villages
They continued to retain their individuality in their new surroundings spoke a language of their own called Konkani married only amongst themselves and worshipped idols which they had brought with them
Subsequently owing to persecution by the Portuguese they migrated further south some of them settling at Bhatkal and others in Cochin
Later on a chieftain who was ruling over the Moolky area brought five of these families from Bhatkal settled them at Mannampady erected a temple for their benefit and installed their idol therein which came to be known as Tirumalaivaru or Venkataramana and endowed lands therefor
In course of time other families of Gowda 398 saraswath Brahmins would appear to have settled in the three villages constituting Moolky and the temple came to be managed by members of this community residing in those villages
In 1915 a suit 0 section No 26 of 1915 was instituted in the Court of the Subordinate Judge of South Kanara under section 92 of the Code of Civil Procedure for framing a scheme for this temple
Exhibit A 6 is the decree passed in that suit
It begins by declaring that Shri Venkataramana temple of Moolky situated in the village of Mannampadi Nadisal Mangane Mangalore taluk is an ancient institution belonging to the Gowda Saraswath Brahmin community ie the Commudity to which the parties to the suit belong residing in the Moolky Petah ie the villages of Bappanad Karnad and Mannampadi according to the existing survey demarcation
Clause 2 of the decree vests the general control and management of the affairs of the temple both secular and religious in the members of that community
Clause 3 provides for the actual management being carried on by a Board of Trustees to be elected by the members of the community aforesaid from among themselves
Then follow elaborate provisions relating to preparation of register of electors convening of meetings of the general body and holding of elections of trustees
This decree was passed on March 9 1921 and it is common ground that the temple has ever since been managed in accordance with the provisions of the scheme contained therein
This was the position when the Madras Temple Entry Authorisation Act Madras V of 1947 hereinafter referred to as the Act was passed by the Legislature of the Province of Madras
It will be useful at this stage to set out the relevant provisions of the Act as it is the validity of section 3 thereof that is the main point for determination in this appeal
The preamble to the Act recites that the policy of the Provincial Government was to remove the disabilities imposed by custom or usage on certain classes of Hindus against entry into Hindu temples in the Province which are open to the general Hindu public
899 Section 22 defines temple  as a place by whatever name known which is dedicated to or for the benefit of or used as of right by the Hindu community in general as a place of public religious worship
Section 3 1 enacts that Notwithstanding any law custom or usage to the contrary persons belonging to the excluded classes shall be entitled to enter any Hindu temple and offer worship therein in the same manner and to the same extent as Hindus in general and no member of any excluded class shall by reason only of such entry or worship whether before or after the commencement of this Act be deemed to have committed any actionable wrong or offence or be sued or prosecuted therefor
Section 6 of the Act provides that If any question arises as to whether a place is or is not a temple as defined in this Act the question should be referred to the Provincial Government and their decision shall be final subject however to any decree passed by a competent civil court in a spit filed before it within six months from the date of the decision of the Provincial Government
It is the contention of the appellants and that in our opinion is well founded that the true intent of this enactment as manifest in the above provisions was to remove the disability imposed on Harijans from entering into temples which were dedicated to the Hindu public generally
Apprehending that action might be taken to put the provisions of this Act in operation with reference to the suit temple the trustees thereof sent a memorial to the Government of Madras claiming that it was a private temple belonging exclusively to the Gowda Saraswath Brahmins and that it therefore did not fall within the purview of the Act
On this the Government passed an order on June 25 1948 Exhibit B 13 that the temple was one which was open to all Hindus generally and that the Act would be applicable to it
Thereupon the trustees filed the suit out of which the present appeal arises for a declaration that the Sri Venkataramana temple at Moolky was not a 900 temple as defined in section 22 of the Act
It was alleged in the plaint that the temple was founded for the benefit of the Gowda Saraswath Brahmins in Moolky Petah that it had been at all times under their management that they were the followers of the Kashi Mutt and that it was the head of the Mutt that performed various religious ceremonies in the temple and that the other communities had no rights to wor ship therein
The plaint was filed on February 8 1949
On July 25 1949 the Province of Madras filed a written statement contesting the claim
Between these two dates the Madras Legislature had enacted the Madras Temple Entry Authorisation Amendment Act Madras XIII of 1949 amending the definition of temple  in section 22 of Act V of 1947 and making consequential amendments in the preamble and in the other provisions of the Act
According to the amended definition a temple is a place which is dedicated to or for the benefit of the Hindu community or any section thereof as a place of public religious worship
This Amendment Act came into force on June 28 1949
In the written statement filed on July 25 1949 the Government denied that the temple was founded exclusively for the benefit of the Gowda Saraswath Brahmins and contended that the Hindu public generally had a right to worship therein and that therefore it fell within the definition of temple as originally enacted
It further pleaded that at any rate it was a temple within the definition as amended by Act XIII of 1949 even if it was dedicated for the benefit of the Gowda Saraswath Brahmins inasmuch as they were a section of Hindu community and that in consequence the suit was liable to be dismissed
On January 26 1950 the Constitution came into force and thereafter on February 11 1950 the plaintiffs raised the further contention by way of amendment of the plaint that in any event as the temple was a denominational one they were entitled to the protection of article 26 that it was a matter of religion as to who were entitled to take part in worship in a temple and that section 3 of the Act in so far as it provided for 901 the institution being thrown open to communities other than Gowda Saraswath Brahmins was repugnant to article 26b of the Constitution and was in consequence  void
On these pleadings the parties went to trial
The Subordinate Judge of South Kanara who tried the suit held that though the temple had been originally founded for the benefit of certain immigrant families of Gowda Saraswath Brahmins in course of time it came to be resorted to by all classes of Hindus for worship and that accordingly it must be held to be a temple even according to the definition of temple  in section 22 of the Act as it originally stood
Dealing with the contention that the plaintiffs had the right under article 26b to exclude all persons other than Gowda Saraswath Brahmins from worshipping in the temple he held that  matters of religion  in that Article had reference to religious beliefs and doctrines and did not include rituals and ceremonies and that in any event articles 17 and 252 which had been enacted on grounds of high policy must prevail
He accordingly dismissed the suit with costs
Against this decision the plaintiffs preferred an appeal to the High Court of Madras A section No 145 of 1952
It is now necessary to refer to another litigation inter partes the result of which has a material bearing on the issues which arise for determination before us
In 1951 the Madras Legislature enacted the Madras Hindu Religious and Charitable Endowments Act Madras XIX of 1951 vesting in the State the power of superintendence and control of temples and Mutts
The Act created a hierarchy of officials to be appointed by the State and conferred on them enormous powers of control and even management of institutions
Consequent on this legislation a number of writ applications were filed in the High Court of Madras challenging the validity of the provisions therein as repugnant to articles 19 25 and 26 of the Constitution and one of them was Writ Petition No 668 of 1951 by the trustees of Sri Venkataramana Temple at Moolky
They claimed that the institution being a denominational one it had a right under 902 article 26b to manage its own affairs in matters of religion without interference from any outside authority  and that the provisions of the Act were bad as violative of that right
By its judgment dated December 13 1951 the High Court held that the Gowda Saraswath Brahmin community was a section of the Hindu public that the Venkataramana Temple at Moolky was a denominational temple founded for its benefit and that many of the provisions of the Act infringed the right granted by article 26b and were void
Vide Devaraja Shenoy vs State of Madras 1
Against this judgment the State of Madras preferred an appeal to this Court Civil Appeal No 15 of 1953 but ultimately it was withdrawn and dismissed on September 30 1954
It is the contention of the appellants that by reason of the decision given in the above proceedings which were inter partes the issue as to whether the temple is a denominational one must be held to have been concluded in their favour
To resume the history of the present litigation Subsequent to the dismissal of Civil Appeal No 15 of 1953 by this Court the appeal of the plaintiffs AS No 145 of 1952 was taken up for hearing and on the application of the appellants the proceedings in the writ petition were admitted as additional evidence
On a review of the entire materials on record including those relating to the proceedings in Writ Petition No 668 of 1951 the learned Judges held it established that the Sri Venkataramana Temple was founded for the benefit of the Gowda Saraswath Brahmin community  and that it was therefore a denominational one
Then dealing with the contention that section 3 of the Act was in contravention of article 26b they held that as a denominational institution would also be a public institution article 252b applied and that thereunder all classes of Hindus were entitled to enter into the temple for worship
But they also held that the evidence established that there were certain religious ceremonies and occasions during which the Gowda Saraswath Brahmins alone were entitled to participate and that that right was protected by article 26b
1 903 They accordingly reserved the rights of the appellants to exclude all members of the public during those ceremonies and on those occasions and these were specified in the decree
Subject to this modification they dismissed the appeal
Against this judgment the plaintiffs have preferred Civil Appeal No 403 of 1956 on a certificate granted by the High Court
There is also before us Petition No 327 of 1957 for leave to appeal under article 136
That has reference to the modifications introduced by the decree of the High Court in favour of the appellants
It must be mentioned that while the appeal was pending there was a reorganisation of the States and the District of South Kanara in which the temple is situated was included in the State of Mysore
The State of Mysore has accordingly come on record in the place of the State of Madras and is contesting this appeal and it is that State that has now applied for leave to appeal against the modifications
The application is very much out of time and Mr M K Nambiar for the appellants vehemently opposes its being entertained at this stage
It is pointed out that not merely had the State of Madras not filed any application for leave to appeal to this Court against the decision of the Madras High Court but that it accepted it as correct and actually opposed the grant of leave to the appellants on the ground that the points involved were pure questions of fact that no substantial question of law was involved and that the judgment of the High Court had recognised the rights of all sections of the Hindu public
It is argued that when a party acquiesces in a judgment and deliberately allows the time for filing an appeal to lapse it would not be a sufficient ground to condone the delay that he has subsequently changed his mind and desires to prefer an appeal
The contention is clearly sound and we should have given effect to it were it not that the result of this litigation would affect the rights of members of the public and we consider it just that the matter should be decided on the merits so that the controversies involved might be finally settled
We have accordingly condoned the delay and have heard counsel on this application
115 904 In view of this it is unnecessary to consider the questions discussed at the Bar as to the scope of article 132 who are entitled to appeal on the strength of a certificate granted under that Article and the forum in which the appeal should be lodged
It is sufficient to say that in this case no appeal was in fact filed by the respondent
On the arguments addressed before us the following questions fall to be decided  1Is the Sri Venkataramana Temple at Moolky a temple as defined in section 2 2 of Madras Act V of 1947  2 If it is is it a denominational temple  3 If it is a denominational temple are the plain tiffs entitled to exclude all Hindus other than Gowda Saraswath Brahmins from entering into it for worship on the ground that it is a matter of religion within the protection of article 26b of the Constitution  4 If so is section 3 of the Act valid on the ground that it is a law protected by article 25 2 b and that such a law prevails against the right conferred by article 26 b and 5If section 3 of the Act is valid are the modifications in favour of the appellants made by the High Court legal and proper  On the first question the contention of Mr M K Nambiar for the appellants is that the temple in question is a private one and therefore falls outside the purview of the Act
This plea however was not taken anywhere in the pleadings
The plaint merely alleges that the temple was founded for the benefit of the Gowda Saraswath Brahmins residing in Moolky Petah
There is no averment that it is a private temple
It is true that at the time when the suit was instituted the definition of temple  as it then stood took in only institutions which were dedicated to or for the benefit of the Hindu public in general and it was therefore sufficient for the plaintiffs to aver that the suit temple was not one of that character and that it would have made no difference in the legal position whether the temple was a private one or whether it was intended for the benefit of a section of the public
But then the Legislature amended the definition of temple  905 by Act XIII of 1949 and brought within it even institutions dedicated to or for the benefit of a section of the public and that would have comprehended a temple founded for the benefit of the Gowda Saraswath Brahmins but not a private temple
In the written statement which was filed by the Government the amended definition of temple  was in terms relied on in answer to the claim of the plaintiffs
In that situation it was necessary for the plaintiffs to have raised the plea that the temple was a private one if they intended to rely on it
Par from putting forward such a plea they accepted the stand taken by the Government in their written statement and simply contended that as the temple was a denominational one they were entitled to the protection of article 26 b
Indeed the Subordinate Judge states in para
19 of the judgment that it was admitted by the plaintiffs that the temple came within the purview of the definition as amended by Act XIII of 1949
Mr M K Nambiar invited our attention to Exhibit A 2 which is a copy of an award dated November 28 1847 wherein it is recited that the temple was originally founded for the benefit of five families of Gowda Saraswath Brabmins
He also referred us to Exhibit A 6 the decree in the scheme suit 0
section No 26 of 1915 wherein it was declared that the institution belonged to that community
He contended on the basis of these documents and of other evidence in the case that whether the temple was a private or public institution was purely a matter of legal inference to be drawn from the above materials and that notwithstanding that the point was not taken in the pleadings it could be allowed to be raised as a pure question of law
We are unable to agree with this submission
The object of requiring a party to put forward his pleas in the pleadings is to enable the opposite party to controvert them and to adduce evidence in support of his case
And it would be neither legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence to come to a finding on a matter which was not in issue and decide the rights of parties on the 906 basis of that finding
We have accordingly declined to entertain this contention
We hold agreeing with the Courts below that the Sri Venkataramana Temple at Mookly is a public temple and that it is within the operation of Act V of 1947
2The next question is whether the suit temple is a denominational institution
Both the Courts below have concurrently held that at the inception the temple was founded for the benefit of Gowda Saraswath Brahmins but the Subordinate Judge hold that as in course of time public endowments came to be made to the temple and all classes of Hindus were taking part freely in worship therein it might be presumed that they did so as a matter of right and that therefore the temple must be held to have become dedicated to the Hindu public generally
The learned Judges of the High Court however came to a different conclusion
They followed the decision in Devaraja Shenoy vs State of Madras supra and hold that the temple was a denominational one
The learned SolicitorGeneral attacks the correctness of this finding on two grounds
He firstly contends that even though the temple might have been dedicated to the Gowda Saraswath Brahmins that would make it only a communal and not a denominational institution unless it was established that there were religious tenets and practices special to the community and that that had not been done
Now the facts found are that the members of this community migrated from Gowda Desa first to the Goa region and then to the south that they carried with them their idols and that when they were first settled in Moolky a temple was founded and these idols were installed therein
We are there
fore concerned with the Gowda Saraswath Brahmins not as a section of a community but as a sect associated with the foundation and maintenance of the Sri Venkataramana Temple in other words not as a mere denomination but as a religious denomination
From the evidence of P W 1 it appears that the Gowda Saraswath Brahmins have three Gurus that those in Moolky Petah are followers of the head of the Kashi Mutt and that it is he that performs some of the 907 important ceremonies in the temple
Exhibit A is a document of the year 1826 27
That shows that the head of the Kashi Mutt settled the disputes among the Archakas and that they agreed to do the puja under his orders
The uncontradicted evidence of P W I also shows that during certain religious ceremonies persons other than Gowda Saraswath Brahmins have been wholly excluded
This evidence leads irresistibly to the conclusion that the temple is a denominational one as contended for by the appellants
The second ground urged on behalf of the respondent is that the evidence discloses that all communities had been freely admitted into the temple and that though P W I stated that persons other than Gowda Saraswath Brahmins could enter only with the permission of the trustees there was no instance in which such permission was refused
It was contended that the inference to be drawn from this was that the Hindu public generally had a right to worship in the temple
The law on the subject is well settled
When there is a question as to the nature and extent of a dedication of a temple that has to be determined on the terms of the deed of endowment if that is available and where it is not on other materials legally admissible and proof of long and uninterrupted user would be cogent evidence of the terms thereof
Where there
fore the original deed of endowment is not available and it is found that all persons are freely worshipping in the temple without let or hindrance it would be a proper inference to make that they do so as a matter of right and that the original foundation was for their benefit as well
But where it is proved by production of the deed of endowment or otherwise that the original dedication was for the benefit of a particular community the fact that members of other communities were allowed freely to worship cannot lead to the inference that the dedication was for their benefit as well
For as observed in Babu Bhagwan Din vs Gir Har Saroop 1 it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away
On the findings of the Court 1 1939 L R 67 I A 1 908 below that the foundation was originally for the benefit of the Gowda Saraswath Brahmin community the fact that other classes of Hindus were admitted freely into the temple would not have the effect of enlarging the scope of the dedication into one for the public generally
On a consideration of the evidence we see no grounds for differing from the finding given by the learned Judges in the court below that the suit temple is a denominational temple founded for the benefit of the Gowda Saraswath Brahmins supported as it is by the conclusion reached by another Bench of learned Judges in Devaraja Shenoy vs State of Madras supra
In this view there is no need to discuss whether this issue is res judicata by reason of the decision in Writ Petition No 668 of 1951
3 On the finding that the Sri Venkataramana Temple at Moolky is a denominational institution founded for the benefit of the Gowda Saraswath Brahmins the question arises whether the appellants are entitled to exclude other communities from entering into it for worship on the ground that it is a matter of religion within the protection of article 26 b
It is argued by the learned Solicitor General that exclusion of persons from entering into a temple cannot ipso facto be regarded as a matter of religion that whether it is so must depend on the tenets of the particular religion which the institution in question represents and that there was no such proof in the present case
Now the precise connotation of the expression matters of religion  came up for consideration by this Court in The Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1 and it was held therein that it embraced not merely matters of doctrine and belief pertaining to the religion but also the practice of it or to put it in terms of Hindu theology not merely its Gnana but also its Bakti and Karma Kandas
The following observations of Mukherjea J as he then was are particularly apposite to the present discussion   in the first place what constitutes the essential 1  909 part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself
If the tenets of any religious sect of the Hindus prescribe  that offerings of food should be given to the idol at particular hours of the day that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character all of them are religious practices and should be regarded as matters of religion within the meaning of article 26 b
 It being thus settled that matters of religion in article 26 b include even practices which are regarded by the community as part of its religion we have now to consider whether exclusion of a person from entering into a temple for worship is a matter of religion according to Hindu Ceremonial Law
There has been difference of opinion among the writers as to whether image worship had a place in the religion of the Hindus as revealed in the Vedas
On the one hand we have hymns in praise of Gods and on the other we have highly philosophical passages in the Upanishads des cribing the Supreme Being as omnipotent omnicient and omnipresent and transcending all names and forms
When we come to the Puranas we find a marked change
The conception had become established of Trinity of Gods Brahma Vishnu and Siva as manifestations of the three aspects of creation preservation and destruction attributed to the Supreme Being in the Upanishads as for example in the following passage in the Taittiriya Upanishad Brigu Valli First Anuvaka  That from which all beings are born by which they live and into which they enter and merge
 The Gods have distinct forms ascribed to them and their worship at home and in temples is ordained as certain means of attaining salvation
These injunctions have had such a powerful hold over the minds of the 910 people that daily worship of the deity in temple came to be regarded as one of the obligatory duties of a Hindu It was during this period that temples were constructed all over the country dedicated to Vishnu Rudra Devi Skanda Ganesha and so forth and wor ship in the temple can be said to have become the practical religion of all sections of the Hindus ever since
With the growth in importance of temples and of worship therein more and more attention came to be devoted to the ceremonial law relating to the construction of temples installation of idols therein and conduct of worship of the deity
and numerous are the treatises that came to be written for its exposition
These are known as Agamas and there are as many as 28 of them relating to the Saiva temples the most important of them being the Kamikagama the Karanagama and the Suprubedagama while the Vikhanasa and the Pancharatra are the chief Agamas of the Vaishnavas
These Agamas contain elaborate rules as to how the temple is to be constructed where the principal deity is to be consecrated and where the other Devatas are to be installed and where the several classes of worshippers are to stand and worship
The following passage from the judgment of Sadasiva Aiyar J in Gopala Muppanar vs Subramania Aiyar 1 gives a summary of the prescription contained in one of the Agamas  In the Nirvachanapaddhathi it is said that Sivadwijas should worship in the Garbagriham Brahmins from the ante chamber or Sabah Mantabam Kshatriyas Vysias and Sudras from the Mahamantabham the dancer and the musician from the Nrithamantabham east of the Mahamantabham and that castes yet lower in scale should content themselves with the sight of the Gopuram
 The other Agamas also contain similar rules
According to the Agamas an image becomes defiled if there is any departure or violation of any of the rules relating to worship and purificatory ceremonies known as Samprokshana have to be performed for restoring the sanctity of the shrine
Vide judgment of 1 911 Sadasiva Aiyar J in Gopala Muppanar vs Subramania Aiyar supra
In Sankaralinga Nadan vs Raja Rajeswara Dorai1 it was held by the Privy Council  affirming the judgment of the Madras High Court that a trustee who agreed to admit into the temple persons who were not entitled to worship therein according to the Agamas and the custom of the temple was guilty of breach of trust
Thus under the ceremonial law pertaining to temples who are entitled to enter into them for worship and where they are entitled to stand and worship and how the worship is to be conducted are all matters of religion
The conclusion is also implicit in article 25 which after declaring that all persons are entitled freely to profess practice and propagate religion enacts that this should not affect the operation of any law throwing open Hindu religious institutions of a public character to all classes and sections of Hindus
We have dealt with this question at some length in view of the argument of the learned Solicitor General that exclusion of persons from temple has not been shown to be a matter of religion with reference to the tenets of Hinduism
We must accordingly hold that if the rights of the appellants have to be determined solely with reference to article 26 b then section 3
of Act V of 1947 should be held to be bad as infringing it
4 That brings us on to the main question for deter mination in this appeal whether the right guaranteed under article 26 b is subject to a law protected by article 25 2 b throwing the suit temple open to all classes and sections of Hindus
We must now examine closely the terms of the two articles
article 25 omitting what is not material is as follows  1 Subject to public order morality and health and to the other provisions of this Part all persons are equally entitled to freedom of conscience and the right to freely profess practise and propagate religion
2 Nothing in this article shall affect the operation of any existing law or prevent the State from making any law           1 1908 LR 35 IA 176
116 912 bproviding for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus
Article 26 runs as follows Subject to public order morality and health
every religious denomination or any section thereof shall have the right ato establish and maintain institutions for religious and charitable purposes b to manage its own affairs in matters of religion c to own and acquire movable and immovable property and d to administer such property in accordance with law
 We have held that matters of religion in article 26b include the right to exclude persons who are not entitled to participate in the worship according to the tenets of the institution
Under this Article therefore the appellants would be entitled to exclude all persons other than Gowda Saraswath Brahmins from entering into the temple for worship
Article 252b enacts that a law throwing open public temples to all classes of Hindus is valid
The word public includes in its ordinary acceptation any section of the public and the suit temple would be a public institution within article 252b and section 3 of the Act would therefore be within its protection
Thus the two Articles appear to be apparently in conflict
Mr M K Nambiar contends that this conflict could be avoided if the expression religious institutions of a public character is understood as meaning institutions dedicated to the Hindu community in general though some sections thereof might be excluded by custom from entering into them and that in that view denominational institutions founded for the benefit of a section of Hindus would fall outside the purview of article 252b as not being dedicated for the Hindu community in general
He sought support for this contention in the law relating to the entry of excluded classes into Hindu temples and in the history of legislation with reference thereto in Madras
According to the Agamas a public temple enures 913 where it is not proved to have been founded for the benefit of any particular community for the benefit of all Hindus including the excluded classes
But the extent to which a person might participate in the worship therein would vary with the community in which he was born
In Venkatachalapathi vs Subbarayadu 1 the following statement of the law was quoted by the learned Judges with apparent approval Temple of course is intended for all castes but there are restrictions of entry
Pariahs cannot go into the court of the temple even
Sudras and Baniyas can go into the hall of the temple
Brahmins can go into the holy of the holies
 In Gopala Muppanar vs Subramania Aiyar Supra Sadasiva Aiyar J observed as follows at p 258 It is clear from the above that temples were intended for the worship of people belonging to all the four castes without exception
Even outcastes were not wholly left out of the benefits of temple worship their mode of worship being however made subject to severe restrictions as they could not pass beyond the Dwajastambam and some times not beyond the temple outer gate and they could not have a sight of the images other than the procession images brought out at the times of festivals
 The true Position therefore is that the excluded classes were all entitled to the benefit of the dedication though their actual participation in the worship was insignificant
It was to remove this anomaly that legislation in Madras was directed for near a decade
First came the Malabar Temple Entry Act Madras XX of 1938
Its object was stated to be  to remove the disabilities imposed by custom and usage on certain classes of Hindus in respect of their entry into and offering worship in Hindu temples
Section 24 defined temple  as  a place which is used as a place of public worship by the Hindu community generally except excluded classes 
Sections 4 and 5 of the Act authorised the trustees to throw such temples open to persons belonging to the excluded classes under 1 1890 ILR113 Mad
914 certain conditions
This Act extended only to the District of Malabar
Next came the Madras Temple Entry Authorisation and Indemnity Act Madras Act XXII of 1939
The preamble to the Act states that  there has been a growing volume of public opinion demanding the removal of disabilities imposed by custom and usage on certain classes of Hindus in respect of their entry into and offering worship in Hindu temples  and that  it is just and desirable to authorize the trustees in charge of such temples to throw them open to the said classes 
Section 3 of the Act authorised the trustees to throw open the temples to them
This Act extended to the whole of the Province of Madras
Then we come to the Act which has given rise to this litigation Act V of 1947
It has been already mentioned that as originally passed its object was to lift the ban on the entry into temples of communities which are excluded by custom from entering into them and I temple  was also defined as a place dedicated to the Hindus generally
Now the contention of Mr Nambiar is that article 252b must be interpreted in the background of the law as laid down in Gopala Muppanar vs Subramania Aiyar supra and the definition of temple  given in the statutes mentioned above and that the expression  religious institutions of a public character  must be interpreted as meaning institutions which are dedicated for worship to the Hindu community in general though certain sections thereof were prohibited by custom from entering into them and that in that view denominational temples will fall outside article 252b
There is considerable force in this argument
One of the problems which had been exercising the minds of the Hindu social reformers during the period preceding the Constitution was the existence in their midst of communities which were classed as untouchables
A custom which denied to large sections of Hindus the right to use public roads and institutions to which all the other Hindus had a right of access purely on grounds of birth could not be considered reasonable and defended on any sound democratic 915 principle and efforts were being made to secure its abolition by legislation
This culminated in the enactment of article 17 which is as follows  Untouchability  is abolished and its practice in any form is forbidden
The enforcement of any disability arising out of  Untouchability  shall be an offence punishable in accordance with law Construing article 252b in the light of article 17 it is arguable that its object was only to permit entry of the excluded classes into temples which were open to all other classes of Hindus and that that would exclude its application to denominational temples
Now denominational temples are founded ex hypothesis for the benefit of particular sections of Hindus and so long as the law recognises them as valid and article 26 clearly does that what reason can there be for permitting entry into them of persons other than those for whose benefit they were founded  If a trustee diverts trust funds for the benefit of persons who are not beneficiaries under the endowment he would be committing a breach of trust and though a provision of the Constitution is not open to attack on the ground that it authorises such an act is it to be lightly inferred that article 252b validates what would but for it be a breach of trust and for no obvious reasons of policy as in the case of article 17  There is it should be noted a fundamental distinction between excluding persons from temples open for purposes of worship to the Hindu public in general on the ground that they belong to the excluded communities and excluding persons from denominational temples on the ground that they are not objects within the benefit of the foundation
The former will be hit by article 17 and the latter protected by article 26 arid it is the contention of the appellants that article 252b should not be interpreted as applicable to both these categories and that it should be limited to the former
The argument was also advanced as further supporting this view that while article 26 protects denominational institutions of not merely Hindus but of all communities such as Muslims and Christians article 252b is limited in its operation to Hindu temples and that it could 916 not have been intended that there should be imported into article 26b a limitation which would apply to institutions of one community and not of others
Article 26 it was contended should therefore be construed as falling wholly outside article 252b which should be limited to institutions other than denominational ones
The answer to this contention is that it is impossible to read any such limitation into the language of article 25 2 b
It applies in terms to all religious institutions of a public character without qualification or reserve
As already stated public institutions would mean not merely temples dedicated to the public as a whole but also those founded for the benefit of sections thereof and denominational temples would be comprised therein
The language of the Article being plain and unambiguous it is not open to us to read into it limitations which are not there based on a priori reasoning as to the probable intention of the Legislature
Such intention can be gathered only from the words actually used in the statute and in a Court of law what is unexpressed has the same value as what is unintended
We must therefore hold that denominational
institutions are within article 25 2 b
It is then said that if the expression  religious institutions of a public character in article 25 2 b is to be interpreted as including denominational institutions it would clearly be in conflict with article 26 b and it is argued that in that situation article 26 b must on its true construction be held to override article 25 2 b
Three grounds were urged in support of this contention and they must now be examined
It was firstly argued that while article 25 was stated to be  subject to the other provisions of this Part Part 111 there was no such limitation on the operation of article 26 and that therefore article 26 b must be held to prevail over article 25 2 b
But it has to be noticed that the limitation  subject to the other provisions of this Part occurs only in cl
1 of article 25 and not in el
Clause 1 declares the rights of all persons to freedom of conscience and the right freely to profess practise and propagate religion
It is t is right that 917 is subject to the other provisions in the Fundamental Rights Chapter
One of the provisions to which the right declared in article 25 1 is subject is article 25 2 A law therefore which falls within article 25 2 b will control the right conferred by article 25 1 and the limitation in article 25 1 does not apply to that law
It is next contended that while the right conferred under article 26d is subject to any law which may be passed with reference thereto there is no such restriction on the right conferred by article 26b
It is accordingly argued that any law which infringes the right under article 26 b is invalid and that section 3 of Act V of 1947 must accordingly be held to have become void
Reliance is placed on the observations of this Court in The Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt supra at page 1023 in support of this position
It is undoubtedly true that the right conferred under article 26b cannot be abridged by any legislation but the validity of section 3 of Act V of 1947 does not depend on its own force but on article 252b of the Constitution
The very Constitution which is claimed to have rendered section 3 of the Madras Act void as being repugnant to article 26b has in article 252b invested it with validity and therefore the appellants can succeed only by establishing that article 252b itself is inoperative as against article 26b
And lastly it is argued that whereas article 25 deals with the rights of individuals article 26 protects the rights of denominations and that as what the appellants claim is the right of the Gowda Saraswath Brahmins to exclude those who do not belong to that denomination that would remain unaffected by article 252b
This contention ignores the true nature of the right conferred by article 252b
That is a right conferred on all classes and sections of Hindus to enter into a public temple and on the unqualified terms of that Article that right must be available whether it is sought to be exercised against an individual under article 251 or against a denomination under article 26b
The fact is that though article 251 deals with rights of individuals article 252 is much wider in 918 its contents and has reference to the rights of communities and controls both article 251 and article 26b
The result then is that there are two provisions of equal authority neither of them being subject to the other
The question is how the apparent conflict between them is to be resolved
The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other they should be so interpreted that if possible effect could be given to both
This is what is known as the rule of harmonious construction
Applying this rule if the contention of the appellants is to be accepted then article 252b will become wholly nugatory in its application to denominational temples though as stated above the language of that Article includes them
On the other hand if the contention of the respondents is accepted then full effect can be given to article 26b in all matters of religion subject only to this that as regards one aspect of them entry into a temple for worship the rights declared under article 252b will prevail
While in the former case article 252b will be put wholly out of operation in the latter effect can be given to both that provision and article 26b
We must accordingly hold that article 26b must be read subject to article 252b
5It remains to deal with the question whether the modifications made in the decree of the High Court in favour of the appellants are valid
Those modifications refer to various ceremonies relating to the worship of the deity at specified times each day and on specified occasions
The evidence of P W I establishes that on those occasions all persons other than Gowda Saraswath Brahmins were excluded from participation thereof
That evidence remains un contradicted and has been accepted by the learned Judges and the correctness of their finding on this point has not been challenged before us
It is not in dispute that the modifications aforesaid relate according to the view taken by this Court in The Commisssioners Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 919 supra to matters of religion being intimately connected with the worship of the deity
On the finding that the suit temple is a denominational one the modifications made in the High Court decree would be within the protection of article 26b
The learned Solicitor General for the respondents assails this portion of the decree on two grounds
He firstly contends that the right to enter into a temple which is protected by article 252b is a right to enter into it for purposes of worship that that right should be liberally construed and that the modifications in question constitute a serious invasion of that right and should be set aside as unconstitutional
We agree that the right protected by article 252b is a right to enter into a temple for purposes of worship and that further it should be construed liberally in favour of the public
But it does not follow from this that that right is absolute and unlimited in character
No member of the Hindu public could for example claim as part of the rights protected by article 252b that a temple must be kept open for worship at all hours of the day and night or that he should personally perform those services which the Archakas alone could perform
It is again a well known practice of religious institutions of all denominations to limit some of its services to persons who have been specially initiated though at other times the public in general are free to participate in the worship
Thus the right recognised by article 252b must necessarily be subject to some limitations or regulations and one such limitation or regulation must arise in the process of harmonising the right conferred by article 252b with that protected by article 26b
We have held that the right of a denomination to wholly exclude members of the public from worshipping in the temple though comprised in article 26b must yield to the overriding right declared by article 252b in favour of the public to enter into a temple for worship
But where the right claimed is not one of general and total exclusion of the public from worship in the temple at all times but of exclusion from certain religious services they being limited by the rules of 117 920 the foundation to the members of the denomination then the question is not whether article 252b over rides that right so as to extinguish it but whether it is possible so to regulate the rights of the persons protected by article 252b as to give effect to both the rights
If the denominational rights are such that to give effect to them would substantially reduce the right conferred by article 252b then of course on our conclusion that article 252b prevails as against article 26b the denominational rights must vanish
But where that is not the position and after giving effect to the rights of the denomination what is left to the public of the right of worship is something substantial and not merely the husk of it there is no reason why we should not so construe article 252b as to give effect to article 26b and recognise the rights of the denomination in respect of matters which are strictly denominational leaving the rights of the public in other respects unaffected
The question then is one of fact as to whether the rights claimed by the appellants are strictly denominational in character and whether after giving effect to them what is left to the public of the right of worship is substantial That the rights allowed by the High Court in favour of the appellants are purely denominational clearly appears from the evidence on record
PW 1 put forward two distinct rights on behalf of the Gowda Saraswath Brahmins
He firstly claimed that no one except members of his community had at any time the right to worship in the temple except with their permission but he admitted that the members of the public were in fact worshipping and that permission had never been refused
This right will be hit by article 25 2 b and cannot be recognised
PW I put forward another and distinct right namely that during certain ceremonies and on special occasions it was only members of the Gowda Saraswath Brahmin community that had the right to take part therein and that on those occasions all other persons would be excluded
This would clearly be a denomi national right
Then the question is whether if this right is recognised what is left to the public of their 921 right under article 252b is substantial
The learned Solicitor General himself conceded that even apart from the special occasions reserved for the Gowda Saraswath Brahmins the other occasions of worship were sufficiently numerous and substantial and we are in agreement with him
On the facts therefore it is possible to protect the rights of the appellants on those special occasions without affecting the substance of the right declared by article 25 2b and in our judgment the decree passed by the High Court strikes a just balance between the rights of the Hindu public under article 252b and those of the denomination of the appellants under article 26b and is not open to objection
Then it is said that the members of the public are not parties to the litigation and that they may not be bound by the result of it and that therefore the matter should be set at large
Even if the members of the public are necessary parties to this litigation that cannot stand in the way of the rights of the appellants being declared as against the parties to the action
Moreover the suit was one to challenge the order of the Government holding that all classes of Hindus are entitled to worship in the suit temple
While the action was pending the Constitution came into force and as against the right claimed by the plaintiffs under article 26b the Government put forward the rights of the Hindu public under article 25 2b
There has been a full trial of the issues involved and a decision has been given declaring the rights of the appellants and of the public
When the appellants applied for leave to appeal to this Court that application was resisted by the Government inter alia on the ground that the decree of the High Court was a proper decree recognising the rights of all sections of the public
In view of this there is no force in the objection that the public are not as such parties to the suit
It is their rights that have been agitated by the Government and not any of its rights
In the result both the appeal and the application for special leave to appeal must be dismissed
922 The parties will bear their own costs throughout
The appellants will take their costs out of the temple funds
Appeals Dismissed


Summary:
This was an appeal by the trustees of the ancient and renowned temple of Sri Venkataramana of Moolky Petta who were managing the temple on behalf of the Gowda Saraswath Brahmins in accordance with a Scheme framed in a suit under section 92 of the Code of Civil Procedure
After the passing of the Madras Temple Entry Authorisation Act Madras V of 1947 which had for its object the removal of the disability of Harijans from entering into Hindu public temples the trustees made a representation to the Government that the temple was a private one and therefore outside the operation of the Act
But the Government did not accept that position and held that the Act applied to the temple
Thereupon the trustees brought the suit out of which the appeal arises  for a declaration that the temple was not one as defined by section 22 of the Act but was a denominational one having been founded exclusively for the Gowda Saraswath Brahmins
It was contended that section 3 of the Act was void as being repugnant to article 26b of the Constitution which vouchsafed to a religious denomination the right to manage its own affairs in matters of religion
The trial court found against the appellants
It held that matters of religion did not include rituals and ceremonies
But on appeal the High Court while holding that the public were entitled to worship in the temple passed a limited decree in favour of the appellants by reserving to the latter the right to exclude the general public during certain ceremonies in which the members of the denomination alone were entitled to participate
The question for decision was whether the rights of a religious denomination to manage its own affairs in matters of religion under article 26b can be subjected to and controlled by a law protected by article 252b of the Constitution
Held that the expression  religious institutions of a public character  occurring in article 252 b of the Constitution contemplates not merely temples dedicated to the public as a whole but also those founded for the benefit of sections thereof and includes 114 896 denominational temples as well
While article 251 deals with the rights of individuals and article 26b with those of religious 2 denominations article 252 covers a much wider ground and controls both
Article 26b must therefore be read subject to article 252 b of the Constitution
Although the right to enter a temple for purposes of worship protected by article 252 b must be construed liberally in favour of the public that does not mean that that right is absolute and unlimited in character
It must necessarily be subject to such limitation or regulation as arises in the process of harmonising it with the right protected by article 26b
Where the denominational rights claimed are not such as can nullify or substantially reduce the right conferred by article 252 b that Article should be so construed as to give effect to them leaving the rights of the public in other respects unaffected
The expression matters of religion  occurring in article 26b of the Constitution includes practices which are regarded by the community as part of its religion and under the ceremonial law pertaining to temples who are entitled to enter into them for worship and where they are entitled to stand for worship and how the worship is to be conducted are all matters of religion
The Commissioner Hindu Religious Endowments Madras vs Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt   Gopala Muppanar vs Subramania Aiyar 1094 and Sankaralinga Nadan vs Raja Rajeswara Dorai 1908 LR 35 IA 176 referred to
Held further that it is well settled that where the original dedication is proved to have been for the benefit of a particular community the fact that members of other communities were allowed to worship cannot lead to the inference that the dedication was also for their benefit
Babu Bhagwan Din vs Gir Hay Saroop 1939 LR 67 IA referred to