Case ID: 544

Judgment:
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. M.K. Nambiyar	 M. L. Naik	 J. B. Dadachanji	 S.N. Andley	 Rameshwar Nath and P. L. Vohra	 for the appellant in C.A. 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 26(b)	 is subject to	 and can be controlled by	 a law protected by article 25(2)(b)	 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	 i.e.	 the Commudity to which the parties to the suit belong residing in the Moolky Petah	 i.e.	 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 2(2) 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 2(2) 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 2(2) 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 26(b) 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 2(2) of the Act	 as it originally stood. Dealing with the contention that the plaintiffs had the right under article 26(b) 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 25(2) 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 26(b) 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 26(b) 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	 A.S. 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 26(b)	 they held that as a denominational institution would also be a public institution	 article 25(2)(b) 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 26(b). (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 : (1)Is 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 26(b) 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 (5)If 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. (2)The 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 Dorai(1)	 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) L.R. 35 I.A. 176. 116 912 (b)providing 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 (a)to 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 26(b) 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 25(2)(b) 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 25(2)(b)	 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 25(2)(b) 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 2(4) 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) I.L.R.113 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 25(2)(b) 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 25(2)(b). 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 25(2)(b) 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 25(2)(b) 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 25(2)(b) 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 25(2)(b) is limited in its operation to Hindu temples	 and that it could 916 not have been intended that there should be imported into article 26(b) 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 25(2)(b)	 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 26(d) is subject to any law which may be passed with reference thereto	 there is no such restriction on the right conferred by article 26(b). 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 26(b) 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 25(2)(b) of the Constitution. The very Constitution which is claimed to have rendered section 3 of the Madras Act void as being repugnant to article 26(b) has	 in article 25(2)(b)	 invested it with validity	 and	 therefore	 the appellants can succeed only by establishing that article 25(2)(b) itself is inoperative as against article 26(b)). 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 25(2)(b). This contention ignores the true nature of the right conferred by article 25(2)(b). 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 25(1) or against a denomination under article 26(b). The fact is that though article 25(1) deals with rights of individuals	 article 25(2) is much wider in 918 its contents and has reference to the rights of communities	 and controls both article 25(1) and article 26(b). 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 25(2)(b) 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 26(b) 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 25(2)(b) will prevail. While	 in the former case	 article 25(2)(b) will be put wholly out of operation	 in the latter	 effect can be given to both that provision and article 26(b). We must accordingly hold that article 26(b) must be read subject to article 25(2)(b). (5)It 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 26(b). 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 25(2)(b) 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 25(2)(b) 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 25(2)(b) 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 25(2)(b) 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 25(2)(b) with that protected by article 26(b). 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 26(b)	 must yield to the overriding right declared by article 25(2)(b) 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 25(2)(b) 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 25(2)(b) 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 25(2)(b)	 then of course	 on our conclusion that article 25(2)(b) prevails as against article 26(b)	 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 25(2)(b) as to give effect to article 26(b) 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. P.W. 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. P.W. 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 25(2)(b) 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( 2)(b); and	 in our judgment	 the decree passed by the High Court strikes a just balance between the rights of the Hindu public under article 25(2)(b) and those of the denomination of the appellants under article 26(b) 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 26(b)	 the Government put forward the rights of the Hindu public under article 25 (2)(b). 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 2(2) 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 26(b) 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 26(b) can be subjected to	 and controlled by	 a law protected by article 25(2)(b) of the Constitution. Held	 that the expression " religious institutions of a public character " occurring in article 25(2) (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 25(1) deals with the rights of individuals and article 26(b) with those of religious 2 denominations	 article 25(2) covers a much wider ground and controls both. Article 26(b) must	 therefore	 be read subject to article 25(2) (b) of the Constitution. Although the right to enter a temple for purposes of worship protected by article 25(2) (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 26(b). Where the denominational rights claimed are not such as can nullify or substantially reduce the right conferred by article 25(2) (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 26(b) 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) L.R. 35 I.A. 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) L.R. 67 I.A. referred to.