Case: Commissioner For Hindu Religious & Charitableendowments, My Vs. Ratnavarma Heggade (Deceased) By His L.Rs

SHINGHAL, J. (for himself and Ray, C.J.)1. This appeal by special leave arises out of the judgment of the High Court of Mysore dated August 30, 1968, upholding the order of District Judge, South Kanara, dated November 9, 1956. By that order the District Judge set aside the decision of the Board of Commissioners for Hindu Religious Endowments, Madras, hereinafter referred to as the Board, that the institution known as Sri Manjunatha temple at Dharamasthal, Puttur taluk, South Kanara district was a temple as defined in clause (12) of Section 9 of the Madras Hindu Religious Endowments Act, 1926, (Madras Act II of 1927), hereinafter referred to as the Act. The Commissioner under the Madras Hindu Religious and Charitable Endowments Act feels aggrieved because the impugned judgment has the effect of taking the temple out of the control provided by the Act. The respondent in this appeal was the "supplemental" petitioner before the District Judge and was brought on record on the death of Manjayya Heggade who was the original petitioner in the petition under sub-section (2) of Section 84 of the Act.2. The controversy relates to the Manjunatha temple, in Dharmasthal, which is now the name of a village in Belthangady taluk of South Kanara district of Tamil Nadu. The original name of the village was Mallarmadi. The locality in which the temple is situated was called Kukya Kudume, but it came to be known as Dharamasthal after the visit of Sri Vadiraja Swamiar of Sode Mutt, Udipi, in the sixteenth century, to which reference will be made in a while.3. It is not in dispute that, even according to the Heggade, Dharamasthal has a number of institutions including the following main institutions :"1. Nelleyadi Beedu,2. Chandranatha Basthi,3. Manjunatha temple,4. Ammanvaru temple, and5. Heggadeship."These institutions have been shown in exhibit A 59 which is said to be a rough sketch of the Dharmasthal. It is also not in dispute before us that "Daivas" were first established in Nelleyadi Beedu, by an ancestor of Heggade who was a Jain, and were worshipped there. Heggade began to give charity to persons of all religions, and the institution became well-known and travellers began to visit it in large numbers. It is the common case of the parties that Sri Vadiraja Swamiar of Sode Mutt, Udipi, who was a sanyasi, happened to pass that way and was invited by Heggade to stay there. The Swamiar however refused to accept food there on the ground that it was "Bhuta Kshetra". Heggade felt very sorry as the great sanyasi was starving in his house. It is said that Heggade thereupon arranged to instal the idol of Sri Manjunatha in the "garbagriha". The Swamiar was appeased and performed the first "pooja" in that temple, which thereafter came to be known as Dharmasthal. This is said to have happened in the sixteenth century and is, at any rate, said to be the origin of the Manjunatha temple in the Dharmasthal campus.4. The Board started proceedings under Section 84(1) of the Act to decide whether Sri Manjunatha temple was a temple as defined in clause (2) of Section 9 of the Act. Heggade urged before the Board, inter alia, that all the institutions in Dharmasthal formed a single unit representing a private institution, that it had been founded by his ancestors on their own private land, that there was no dedication to the Hindus and they could not claim any right of worship, that Dharmasthal was Jain in character, that it was a charitable but not a religious institution, that his status was not akin to that of a mere trustee and that "Heggadeship" was intimately and inseparably connected with the Dharmasthal institution and Manjunatha temple.5. The Board made an enquiry and reached the conclusion that Manjunatha temple was a separate entity and was the most important institution and that it was not the private property of the Heggade. It also held that it was not a Jain institution, but was a Hindu temple, and that it was a religious and not merely a charitable institution for its charity was connected with the temple. The Board also held that the public had used the temple freely ever since its foundation. It accordingly decided the Manjunatha was a temple as defined in the Act even though its trusteeship vested in Heggade who were Jains.6. As has been stated, an application was made by Manjayya Hedge to the District Judge, under sub-section (2) of Section 84 of the Act for setting aside the Boards decision. It was specifically pleaded in that application that the entire institution known as Dharmasthal was a "composite" institution and that his ancestors always claimed that the Manjunatha Devaru, its properties and deities belonged to them personally and that its patta stood in their names from time immemorial. On that basis, it was pleaded further that as the properties were outside the scope of the enquiry under Section 84 of the Act, the Act "did not apply and the Board had no jurisdiction to hold an enquiry under Section 84". A counter-affidavit was filed on behalf of the Board in which it was pleaded that Manjunatha temple of Dharmasthal was "an independent entity being a separate temple, owning its own its own property and having separate income". It was pleaded further that there were properties in the name of the deity of the Manjunatha in Mysore State and other places. The District Judge did not frame any issue but formulated some points for determination including the points whether Manjunatha Devaru was only a part of the institution known as Dharmasthal, and not a separate institution in itself, and whether the provisions of the Act did not apply to it ? He recorded the evidence and held that Manjunatha temple was one of the 3 or 4 shrines maintained from the income of the institution known as Dharmasthal, Heggade was a component part of the institution, the temple stood on the private land of Heggade, the Manjunatha shrine was a Hindu institution but it was so mixed up and connected with other Jain institutions that it was practically impossible to separate it, and that Dharmasthal was a happy blending of charity and religion. The District Judge held further that the Manjunatha shrine was the private temple of the Heggade, it had not been dedicated to the Hindu public, and it was not used by the public as of right. The District Judge did not decide whether the shrine of Ammanvaru and other deities was a Jain institution. He accordingly held that though the Manjunatha shrine may be a Hindu shrine, it was private property of the Heggade and the provisions of the Act were not applicable to it. The District Judge accordingly set aside the order of the Board dated March 9, 1949.7. The Commissioner filed an appeal to the High Court against that judgment of the District Judge dated November 9, 1956. One of the main questions presented for determination before the High Court was whether "all the institutions" of Dharmasthal formed a single composite institution. It was not in dispute before the High Court that, apart from the question of Manjunatha temple being an adjunct to the composite Dharmasthal institution, the temple was not an institution at all. Even the Heggade did not deny the existence of Manjunatha temple as an institution and took the specific plea in his affidavit dated July 22, 1949 that the Manjunatha deity "is a private institution belonging to the Heggade". The High Court examined the "crucial question" whether Manjunatha was a temple within the definition of the Act and whether it was a "religious endowment" under Section 9(11). It held that the Manjunatha temple was an adjunct to the composite institution of Dharmasthal and according to the customs and usages of the institution that temple could not be separated from the rest of the institution, that Dharmasthal was both a religious and charitable institution, that Manjunatha was a deity worshipped both by the Hindus and the Jains in accordance with their respective faiths and that it was neither an exclusively Hindu deity nor an exclusively Jain deity. The High Court referred to the pleadings and the evidence and held that the institution was founded by a Jain, its administration remained exclusively Jain since its inception, and that as Jains also worshipped along with Hindus, it could not be inferred that there was an implied dedication to the Hindus exclusively. The High Court thus held that the temple was not a temple as defined in the Act, and it was therefore not necessary to examine the question whether it was a private temple of the Heggade. In the result, the High Court took the view that the Act did not apply to the institution and the Board had no jurisdiction over it. It therefore dismissed the appeal with costs.8. The commissioner has obtained special leave, and this is how the appeal has come up here for consideration.9. As the controversy in this case relates to the applicability of the Act to the Manjunatha temple, it will be convenient to examine its relevant provisions.10. The preamble of the Act states, inter alia, that it is meant to provide for the better administration and governance of "certain Hindu religious endowments" described in it. Section 2 makes it clear that the Act applies "to all Hindu public religious endowments". Private religious endowments are therefore outside its scope. Then there is an explanation to the following effect :"Explanation. - For the purpose of this Act, Hindu public religious endowments do not include Jain religious endowments.The effect of the section therefore is to exclude not only private religious endowments, but also Jain religious endowments and it is around the provisions of Section 2 that the controversy in this case has centred. The exclusion of Jain religious endowments had been emphasised by Section 3(b) which empowers the local Government to remove the exclusion and extend the provisions of the Act, and the rules framed thereunder, to Jain religious endowments, subject to such restrictions and modifications as may be considered proper. As no such extension has been notified, the Act does not cover Jain religious endowments. It is confined to Hindu religious "endowments" and will not be applicable where there is no such endowment at all."11. The expression "religious endowment" or "endowment" has been defined in clause (11) of Section 9 as follows :"(11) Religious endowment or Endowment means all property belonging to, or given or endowed for the support of maths or temples or for the performance of any service or charity connected therewith and includes the premises of maths or temple but does not include gifts of property made as personal gifts or offerings to the head of a math or to the archaka or other employee of a temple.It follows that "all property" belonging to, or given or endowed for the support of a temple or for the performance of any service or charity connected with the temple will constitute its endowment, including the premises of the temple. It would therefore be necessary to examine whether there is evidence to prove any such endowment in respect of SRI Manjunatha temple. In this connection it will be necessary to examine which property, if any, was endowed to the temple, and by whom, and which, if any, could be said to be the premises of the temple to the exclusion of all other temples ?"12. The expression "temple" has been defined by clause (12) of Section 9 in these terms :"(12) Temple means a place, by whatever designation known, used as a place of public 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 religious worship.The definition thus emphasises that only those temples will fall within the purview of the Act which are places of "public religious worship" and are "dedicated" to, or for the benefit of, or are used "as of right" by the Hindu community."13. It May be mentioned in this connection that, as has been stated, the District Judge has held that although the Manjunatha temple may be a Hindu temple, it is the private temple of the Heggade and is not a temple expressly dedicated to Hindus or a temple which could be said to have been used or resorted to by the Hindu public as of right. The High Court has, on appeal, held on the other hand, that Manjunatha is neither an exclusively Hindu deity nor an exclusively Jain deity and that it is not therefore a temple as defined in the Act. It has therefore not examined the other question whether it is a public or a private temple. As regards the property of the temple, the High Court has held that it is an "adjunct" to the composite institution consisting of Hindu and Jain gods and daivas worshipped by Hindus and Jains.14. For the parties have argued at length on the questions whether Manjunatha temple is an exclusively Hindu temple and whether it is a place of public religious worship dedicated to or used as of right by the Hindu community as a place of religious worship. There is considerable evidence for deciding these questions, but even if it were assumed that the decisive of the controversy, for the other question would still remain whether it is an "endowment" ? It will be recalled that by virtue of Section 2, the Act applies only to Hindu public religious "endowments".15. The definition of "religious endowment" and "endowment" in clause (11) of Section 9 is common. Accordingly, the questions which arise for consideration in this connection are whether the temple has property belonging to, or given or endowed for its support or for the performance of any service or charity connected therewith. It has not been disputed before us, and is in fact beyond controversy, that there is considerable movable and immovable property of the Dharmasthal as a whole i.e. the entire complex or campus consisting of Nelleyadi Beedu, Chandranath Basthi, Manjunatha temple, Ammanvaru temple and the Heggadeship. But the question is whether there is any such property exclusively of the Manjunatha temple so as to constitute a Hindu religious endowment for purposes of Section 2 of the Act ?16. It will be recalled that it is not in dispute here that it were the "daivas" who were first established in Nelleyadi Beedu and were worshipped there by an ancestor of Heggade who was a Jain. The High Court has in fact found that it has been clearly established by the evidence on the record that the institution was founded by a Jain and that ever since its inception its administration has remained in the hands of a Jain, namely, the Heggade. So when Vadiraja Swamiar of Sode Mutt Udipi, came there as mentioned earlier, there was only worship of Jain "daivas" and of "no God". This is to be found in the report (Ex. A 108) of T. Narayan Nambiyar in the matter of the Manjunatha temple, which was taken in evidence and has been relied upon by the High Court. It was at the instance of the Swamiar that the idol of Manjunatha was brought and installed in the "garbagriha" and it was he who performed the first pooja. It was therefore the Swamiar who was responsible for the installation of the Manjunatha idol, which was a lingam, in a campus where there were shrines of devas like Nelleyadi Beedu, the Chandranatha Basthi and several other buildings. It could not therefore be said that the mere installation of the idol of Manjunatha brought into existence any such property as could be said to belong to that deity or given or endowed for the support of its temple or for the performance of any service of charity connected therewith.17. There is, on the other hand, evidence to show that all the buildings and institutions of the Dharmasthal, which was the composite name of the entire campus or complex consisting of the buildings mentioned in plan Ex. A 59, were situated in the land belonging to the Heggade, and of which he held a patta. This is evident from Ex. A 103 which is a certified copy of the statement of Kumara Heggade dated July 31, 1820, which appears to have been read in evidence with the consent of the parties. To the same effect is the statement of U. Seetharamayya dated October 12, 1954 who was acquainted with Dharmasthal since 1908. As it is, the Manjunatha temple does not have even a separate "prakaram". The shrine of Ammanvaru is in close proximity of the Manjunatha temple and within the same "prakaram". It has not been disputed before us that, as has been stated by U. Seetharamayya, PW 2, its important deities are Kalarahu, Kalarhayi, Kumarswami and Kanya Kumari some of which, at any rate, are the same as the Jain deities worshipped in Nelleyadi Beedu and Badinade both of which are admittedly Jain institutions. Moreover, Kanya Kumari in Ammanvaru shrine cannot be said to be Parvati, the consort of Shiva, for M. Govinda Pai RW 12, who claims to have studied Hindu and Jain religions and was examined on behalf of the Board, has stated that Parvati and Kany Kumari are "not identical". The shrine of Annappa Daiva is also situated within the common "prakaram". The existence of the shrines of Ammanvaru and Annappa Daiva in the same "prakaram" as the Manjunatha temple therefore shows that Manjunatha temple cannot even claim to have any exclusive premises of its own so as to constitute an endowment within the meaning of clause (11) of Section 9 of the Act.18. The High Court has found it as a fact that the shrine of Manjunatha is an "adjunct to the composite institution of Dharmasthal and according to the customs and usages of the said institution, the shrine of Shri Manjunatha cannot be separated from the rest". In arriving at this conclusion the High Court has taken into consideration those facts which have been established by the evidence on the record. It will be sufficient to make a brief reference to the following 14 facts which have been mentioned by the High Court :"(i) All the shrines in Dharmasthal were founded by the Heggade who was a Jain.(ii) All the shrines are situated in close proximity on "warg" lands of which the patta is the name of Heggade.(iii) The rituals of all the shrines are interconnected.(iv) All places of worship participate in the installation of the Heggade (Exs. A 58 and A 108).(v) The pooja is reciprocal e.g. whenever there is an important ceremony in Manjunatha shrine, special pooja has to be performed in Chandranatha Basthi which is a Jain institution (Ex. A 108).(vi) All prasadam is normally given only from Ammanvaru shrine and not from Manjunatha temple, (PWs 3, 4 and 5).(vii) The festivals, including that relating to "makara shankranti", of all the shrines, are common (PW 2 and exhibits A 69 and A 70).(viii) All offerings are made and received for the entire institution and not for any particular deity (Exs. A 69, A 70 and A 108), and the public do not make any distinction in making the offerings and whatever is given is for Dharmasthal as a whole (Ex. A 108).(ix) On Heggade"s death, pooja is stopped in all institutions until purification (Ex. A 108).(x) "Hoilus" or complaints are made to Dharmasthal as a whole and prasadam is given to the complainants from Ammanvaru shrine (Ex. A 72).(xi) Chandranatha Basthi, which is Jain institution, is closely interlinked with all the other institutions in Dharmasthal.(xii) The paraphernalia of "daivas" (who are Jain deities) is kept in Manjunatha and Ammanvaru shrines (Ex A 108).(xiii) There is extraordinary unity of interest between the Heggade and Dharmasthal (Exs. A 107 and A 103) and no distinction is made between the office of Heggade and the deities (Ex. A 104).(xiv) The deities which had been installed before the installation of the lingam in the Manjunatha temple continued to enjoy their previous importance (Ex. A 105) and Dharmasthal could not be said to have been dedicated to Manjunatha but to the earlier deities."19. To the above may be added the following further facts :"(i) The entire income of all the institutions constitutes one common fund from which the expenses of all the shrines and the Heggade are met (Report Ex. B 2 of RW 3).(ii) The vast charity which is undertaken was in existence even before the installation of the lingam in Manjunatha shrine (RW 3).(iii) While the "lingam" Was installed in Manjunatha temple by Vadiraja Swamiar of Sode Mutt, Udipi, as an exclusively Hindu God, in its present "garbagriha" which exclusively contains that lingam and has no non-Hindu God, the Jain daivas have continued to be worshipped side by side, in the adjacent Ammanvaru shrine. Even in the presence of the Swamiar, the Heggade was present at the time of worship and offered Kanikam (RW 9). Whosoever went to Dharmasthal, weather a Hindu or a Jain, worshipped Manjunatha and the other deities and daivas alike (Ex. A 108).(iv) It may be that Brahmins perform pooja in Manjunatha temple, but that is done in the presence of the Heggade (RW 11) who also worships Manjunatha and controls all the institutions as one integral Dharamasthal.(v) The Jain shrine of Anna Daiva is also within the same prakaramin which the temples of Manjunatha and Ammanvaru are situated."20. It therefore appears that the High Court was justified in taking the view that Manjunatha temple is part and parcel of the composite institution known as Dharmasthal and is so inseparably connected with it that it is its integral part. It cannot therefore be held that the Manjunatha temple is an "endowment" within the meaning of clause (11) of Section 9 of the Act for it has not been proved that any property belongs to it, or has been given or endowed for its support or for the performance of any service or charity connected therewith, or that it has any such premises of its own as could be said to form its own endowment.21. It would follow from what has been said above that even if the Manjunatha temple is assumed to be a place used, as of right, for public religious worship by Hindus, it could come under the purview of the Act only if it could be established that it was a religious endowment within the meaning of Section 2, but this has not been proved to be so. On the other hand it appears that the present institution of Dharmasthal was originally a Jain religious and charitable institution to which property was endowed by the ancestors of the present Heggade who was himself a Jain. It was that endowment which spread and gained more and more importance over the years because of the offerings made largely by Hindu and Jain devotees and worshipers. But it has not been established that there is any endowment which could be said to belong exclusively to Manjunatha temple. Even if any such endowment was made by someone in the name of Manjunatha temple (as stated by K. C. Nambayar RW 3), it was taken to be an endowment for the entire institution known as Dharmasthal and was treated as such. The Manjunatha temple cannot therefore be said to be a Hindu religious endowment within the meaning of Section 2. The provisions of the Act are not applicable to it, and the Board clearly erred in holding otherwise.22. It has been argued by Mr. Chowdhary for the appellant that generally speaking Hindus include Jains. According to him, the underlying assumptions in the Act is that Jains are also Hindus, and that the fact that Jains also worship in a Hindu temple will not detract from the fact that it is a Hindu temple as it is not necessary that a Hindu temple should be a place exclusively for Hindu public religious worship. Reference in this connection has been made to All India Sai Samaj (Registered) by its President D. Bhima Rao, Mylapore v. Deputy Commissioner for Hindu Religious and Charitable Endowments (Administration) Department, Madras-34, [(1967) 2 MLJ 618 (Mad)]; State of Madras by the Secretary, Revenue Department, Madras v. Urumu Seshachalam Chettiar Charities, Tiruchirapalli, by its Board of Trustees [(1960) 2 MLJ 591 (Mad) and S. Kannan v. All India Sai Samaj (Registered) by its President, D. Bhima Rao, Mylapore [(1974) 1 MLJ 174 (Mad)]. It will be sufficient to say that what Section 9(12) of the Act requires by way of definition of a temple is that for purposes of the Act a temple should be dedicated for public religious worship, as of right, and it would not detract from its character as such if Jains also worship there. The argument of Mr. Chowdhary is, however, futile because, as has been mentioned, the provisions of the Act will not be attracted to the Manjunatha temple in the absence of any evidence to prove the existence of an endowment for it.23. It has next been argued by Mr. Chowdhary that unless the temple of Manjunatha could be shown to be a Jain endowment, it would come within the definition of temple in the Act. This argument has only to be stated to be rejected because, as has been shown, there is no evidence to show that there is any endowment for the Manjunatha temple as such, and the temple is a part and parcel of Dharmasthal which came to be endowed in the facts and circumstances mentioned above.24. An ancillary argument has been made that an inference of Hindu endowment for the benefit of the public should be drawn from the facts that the deity belongs to the Hindu Trinity, the architecture of the temple is that of a Hindu temple, the rituals are performed by brahmins according to Hindu form of worship and honey is used for "abhisheka" which is contrary to the Jain form of worship. We have already assumed that the temple possesses the characteristics which make it a Hindu temple, but even so there is no justification for the argument that there is any endowment for it as such.25. Then it has been argued by Mr. Chowdhary that Manjunatha temple is not an "adjunct" to the composite institution of Dharmasthal for it is the most important temple in the campus. It has been urged that mere common management and control cannot justify the argument that Manjunatha temple is an inseparable part of the Dharmasthal. It is not necessary to examine this argument once again, for we have given our reasons for taking a contrary view.26. Another argument of Mr. Chowdhary is that formal dedication of the endowment to the temple of Manjunatha was not necessary and that its user by the Hindus as of right would be enough to prove the initial dedication. Reliance for the argument has been placed on B. K. Mukherjea on the Hindu Law of Religious and Charitable Trusts, third edition, page 27, which makes a mention of the rituals to be observed when a donor wants to consecrate a temple and establish a deity in it. It may be that, in a given case, it may be difficult to prove the original dedication because of the lapse of considerable time but, in the present case it would not be possible to conclude that there was any such dedication because there is nothing to show how Vadiraja Swamiar, who installed the lingam in Manjunatha temple, could be said to be a donor when the property did not belong to him.

Decision:
0[ds]It will be sufficient to say that what Section 9(12) of the Act requires by way of definition of a temple is that for purposes of the Act a temple should be dedicated for public religious worship, as of right, and it would not detract from its character as such if Jains also worship there. The argument of Mr. Chowdhary is, however, futile because, as has been mentioned, the provisions of the Act will not be attracted to the Manjunatha temple in the absence of any evidence to prove the existence of an endowment forfor the argument has been placed on B. K. Mukherjea on the Hindu Law of Religious and Charitable Trusts, third edition, page 27, which makes a mention of the rituals to be observed when a donor wants to consecrate a temple and establish a deity in it. It may be that, in a given case, it may be difficult to prove the original dedication because of the lapse of considerable time but, in the present case it would not be possible to conclude that there was any such dedication because there is nothing to show how Vadiraja Swamiar, who installed the lingam in Manjunatha temple, could be said to be a donor when the property did not belong to him.It therefore appears that the High Court was justified in taking the view that Manjunatha temple is part and parcel of the composite institution known as Dharmasthal and is so inseparably connected with it that it is its integral part. It cannot therefore be held that the Manjunatha temple is an "endowment" within the meaning of clause (11) of Section 9 of the Act for it has not been proved that any property belongs to it, or has been given or endowed for its support or for the performance of any service or charity connected therewith, or that it has any such premises of its own as could be said to form its own endowment.21. It would follow from what has been said above that even if the Manjunatha temple is assumed to be a place used, as of right, for public religious worship by Hindus, it could come under the purview of the Act only if it could be established that it was a religious endowment within the meaning of Section 2, but this has not been proved to be so. On the other hand it appears that the present institution of Dharmasthal was originally a Jain religious and charitable institution to which property was endowed by the ancestors of the present Heggade who was himself a Jain. It was that endowment which spread and gained more and more importance over the years because of the offerings made largely by Hindu and Jain devotees and worshipers. But it has not been established that there is any endowment which could be said to belong exclusively to Manjunatha temple. Even if any such endowment was made by someone in the name of Manjunatha temple (as stated by K. C. Nambayar RW 3), it was taken to be an endowment for the entire institution known as Dharmasthal and was treated as such. The Manjunatha temple cannot therefore be said to be a Hindu religious endowment within the meaning of Section 2. The provisions of the Act are not applicable to it, and the Board clearly erred in holding otherwise.