Case: T.D.Gopalan Vs. The Commissioner Of Hindu Religious And Chari- Tabl

or private. 12. Mr. Natesan says that if the evidence of the witnesses produced by the defendants is not accepted as was not rightly accepted by the District Judge then there will be hardly any features or circumstances barring some of the physical features of the temple and the fact that people have been allowed to worship and take part in the festivals and ceremonies and even to make some offerings though without their having the right to worship in the temple which would be sufficient to make a temple which was private in origin a public temple. According to Mr. Natesan even the witnesses of the defendants had shown consciousness of the temple being private. He has laid a great deal of emphasis on the absence of any property attached to the temple which might be endowed. He says that admittedly only two shops were built by the family and out of the rents received from those shops together with other contributions made by the members of the family the expenses of the temple were being met. He has relied a great deal on the decision of a Division Bench of the Madras High Court in Madras Hindu Religious Endowments Board v. V. N. D. Ammal, (1953) 2 Mad LJ 688 = (AIR 1954 Mad 482 ). There reliance had been placed on the following features : (1) that when the temple was built it 1919 Kumbabishekam was performed on a grand scale; (2) the respondent had made Utsavamurthis and built Chaprams and the deities were also taken in procession on special occasions; (3) a Gurukkal had been engaged to perform the pooja regularly and (4) the temple has got a Gopuram and other features which are usually found in a public temple. This is what Venkatarama Ayyar J., as he then was, observed."It is true that the facts that there is an utsava-idol and there are processions are generally indicative of the fact that it is a public temple. But then no property has been dedicated for the upkeep of the temple. The worship is maintained and the expenses are met from out of the private funds of the respondent. In the absence of any property being dedicated for the maintenance of worship in the temple, it is difficult to hold that the temple has been dedicated to the public." 13. At this stage the provisions of S. 9 (12) of the Madras Act 2 of 1927 which defines a temple may be noticed. According to that definition it is a place by whatever designation known used as a place of public religious worship and dedicated or used as of right by the Hindu community or any section thereof as a place of public religious worship. In the Madras Hindu Religious and Charitable Endowments Act (Act 22 of 1959) the definition of "temple is given in subclause (20) of S. 6. It is practically in the same terms as in the earlier Act. 14. In our judgment the High Court was in error in holding that members of the public had been worshipping at the Mandapam in dispute without let or hindrance. In arriving at that conclusion it appears to have believed the witnesses produced by the defendants. It has also relied on the principle that in the absence of any evidence to show that such user was permissive it could be presumed that it was as of right. We have already pointed out that the High Court, while appraising the evidence of the witnesses, has not discussed the reasons and grounds given by the learned District Judge for not relying on the defendants 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 learned District Judge were neither cogent nor sufficient to discard the testimony of the defendants witnesses. But we are 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 contributions and benefactions obtained from members of the public was also based mainly on the evidence produced by the defendants. In our opinion the conclusion of the learned District Judge on that point receives more support from the entire material on the record. 15. It is significant that the High Court did not attach sufficient importance to three matters which, in the present case, were of material consequence. The first was that the origin of the Mandapam had been proved to be private. The second was that its management had remained throughout in the members of the Thoguluva family. The third was the absence of any endowed property. There was no Gopuram or Dwajasthamba nor a Nagara bell nor Hundial in the suit temple. The learned District Judge adverted to the evidence on all these and other relevant matters and we concur with him in his conclusions. 16. It is true that the suit temple had some physical characteristic and features which are generally to be found in a public temple. I+ was also established that persons who were outsiders in the sense that they did not belong to the Thoguluva family used to come and worship at the temple and made offerings there. There were also some jewels and other articles in the temple. But the determination of the question whether the temple was public or private did not depend on some facts or set of facts alone. The entire evidence, both documentary and oral, had to be considered as a whole keeping in view the principles already noticed by us. We are satisfied that the learned District Judge came to the correct conclusion that the suit temple was private in character.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. In our judgment the High Court was in error in holding that members of the public had been worshipping at the Mandapam in dispute without let or hindrance. In arriving at that conclusion it appears to have believed the witnesses produced by the defendants. It has also relied on the principle that in the absence of any evidence to show that such user was permissive it could be presumed that it was as of right. We have already pointed out that the High Court, while appraising the evidence of the witnesses, has not discussed the reasons and grounds given by the learned District Judge for not relying on the defendants 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 learned District Judge were neither cogent nor sufficient to discard the testimony of the defendants witnesses. But we are 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 contributions and benefactions obtained from members of the public was also based mainly on the evidence produced by the defendants. In our opinion the conclusion of the learned District Judge on that point receives more support from the entire material on the record15. It is significant that the High Court did not attach sufficient importance to three matters which, in the present case, were of material consequence. The first was that the origin of the Mandapam had been proved to be private. The second was that its management had remained throughout in the members of the Thoguluva family. The third was the absence of any endowed property. There was no Gopuram or Dwajasthamba nor a Nagara bell nor Hundial in the suit temple. The learned District Judge adverted to the evidence on all these and other relevant matters and we concur with him in his conclusions16. It is true that the suit temple had some physical characteristic and features which are generally to be found in a public temple. I+ was also established that persons who were outsiders in the sense that they did not belong to the Thoguluva family used to come and worship at the temple and made offerings there. There were also some jewels and other articles in the temple.But the determination of the question whether the temple was public or private did not depend on some facts or set of facts. The entire evidence, both documentary and oral, had to be considered as a whole keeping in view the principles already noticed by us. We are satisfied that the learned District Judge came to the correct conclusion that the suit temple was private in character.