T. D. Gopalan v. the Commissioner of Hindu Religious and Charitable Endowments, Madras

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 742 of 1967. Appeal from the judgment and decree dated April 4 1960 of the Madras High Court in Appeal No. 334 of 1956.' M. Natesan, K. S. Subramanian and K. Jayaram, for the appellant. A. V. Rangam and A. Subhashini, for the respondent. The Judgment of the Court was delivered biY Grover, J.-This is an appeal by certificate from a judgment of the Madras High Court. The appellant's predecessor in office T. G. Kuppuswamy Iyer filed on April 14, 1950 a suit in the District Court Madurai under s. 84(2) of the Madras Hindu Religious Endo~ents Act'. 3-Ll52SupCI./7 (1973) l S.C.R. (Act II of 1927) against the respondent and two other persons who are not parties· to the appeal for a declaration that the suit Mandapam was a private Mandapam, i.e., family property of Thoguluva Thirumalier and was not a temple covert..! l:>y the provisions of the aforesaid Act.

This suit had to be lllot;tuted because the authorities appointed under the Madras Act II u~ 1927 held that the premises No. 29 South Masi Street, Madurai wherein the idol of Sri Srinivasaperumal and certain other idols were locat~d was a temple within the meaning of the said Act. The District Judge decreed the suit in favour of the appellant but the High Court, on appeal, reversed that judgment and passed a decree holding that the premises constituted a temple. The appellant thereupon filed a petition for .,leave to appeal to this Court but the High Court refused to grant the cc. ''ficate. The matter was brought to this Court. By a judgment wh1c.. : "0 ryorted in T. D. Gopalan v. Commr. of Hindu Religious & Charitav.1 ... :'~­ dowments, Madras(1) this Court directed that the subject matter of the dispute should be ascertained with ·reference to the claim made by· the plaintiff in his plaint.

Consequently the valuation of the property should have been done acco-ding to the claim made in the plaint, namely, that the property was private property of the family caoable of alienation. Thereafter the High Court granted a certificate on determinalion of the value of the suit property. The only question which had to be decided biy the District Court and the High Court was whether the property in dispute was a private Mandapam and not a public temple. T':~ District Judge apuointed a Commissioner to submit a report regarding the physicdl features of the property. The Commissioner reported that the suit premises was a temple and in front of it there was a Garbha Graha on either side. There were two stone idols called Dwarabalakas. The implements necessary for offering puja were also found by the Commissioner. But there was no Dwejasthamba, Balipeeda or Gopuram.

There is no dispute that the premises where the temple is situate originally belonged to one Kuppiyan. 'A decree was obtained by Tirumalaiyyan against Kuppiyan and in execntion of that decree the property was put to sale by public auction. It was purchased by TirumaJa;yyan in 1885 (vide Ext. B-1-extract from the suit register dated 14-1-1885). The title to the oroperty thus vested in Tirumalaiyyan and the members .of the family who later on caine to b~ known as Thoguluva famlly. The ca'e laid in the plaint was that the Mandapam came to ~e constructed on the suit property by the members of. that (I) [1966] S•;ppl. S.CR. 154 T. D. GOP ALAN v. COMMR. RELIGIOUS ENDOWMENTS 5 8 7 (Grover, !.) family which belonged to what is known as the Saurashtra community in Madurai town. It was a private Mandapam which was in the exclu;ive and absolute control of the said family and worship was performed there for the spiritual benefit of the members of the Thoguluva Tirumalaiyyam family.

It is common ground that at all times the management and control u over the Mandapam was with some or other members of the Thoguh;va family. In 1932 or 1933 some shops in the eastern and .,1·c.\·c;·n side of the Mandapam were constructed for which the Municipality levied a tax which had been paid by the members of the Thoguluva family which was in the management of the temple. ll The learned District Judge's approach to the appreciation of the evidence, oral as well as documentary, was on the principle that once the private character of the temple was eitablished more strong proof was necessary to hold that the temple was subsequently dedicated to the public; (Babu Bhagwan D111 & Others v. Gir Har Saroop &; 01hers(1). He considered th~ ev;idence produced by the parties and, in particular, carefully analysed the evidence led on behaJ.f of the defe.ndants according to whom the Mandapam was a public temple.

While discussing the evidence of each of the witnesses the. learned judge gave detailed reasons for accepting or rejecting the evidence of a particular witness. Before him the defendant had sought to establish the dedication of the temple to the public by producing evidence on the following points : ( 1) Subscriptions were collected by G. Rama Ayyangar and his descendants from the public because the members of the Thoguluva family stopped giving any financial help to the temple; (2) Shops in the front Mandapam were constructed with public donations and even for the Kumbabishekan public funds were collected; (3) D.W. 6 who de~ 11~t lJelong to the Thoguluva family was doing the Mandagapad1; (4) There cised to be a procession on Vaikunta Ekadasi day foe expenses of.which were met by D.W. 7; (5) There were iewe!s and ?!her art1cl:s used for worship donated by members of pub!Ic which were Ill the custody of Srimathigal Sangam: (6)

On each cf the 1:1ava;atri days people who did not belong to the Thogul~va fam1!y did t~e Ubhayam; (7) The worshippers had been ,n~ak1?g p!fermgs d~rmg the daily pooja as of right and were par1Jc1patmg 1n the dally Neivedyams; ( 8) That there was a Nagan1, b~ll a~d Hundi~l in the suit temple; (9) That there was Utsava idol m the smt Mandapam. The learned District Judge found : D.Ws. 3, 4 and 8 who belonged !O the Th~guluva family had played into the hands of the opposite camp. (ii) D.W. 3 was disbelieved mainly became (I) 67 1.A.P. l. [1973] l S.C.R. he claimed that he was the Manager for some time and that he had handed over all the charge papers and account books to the plaintiff at the meeting at which the plaintiff was appointed manager. But i:n a previous tatement Ext. A-17 he had admitted that there was no record to show that he had handed over the charge to the plaintiff. (iii)

The burden of proving that donations were collected from the public was on the defendants as they were seeking to establish dedication of a temple which was <mce private in character. There was no satisfactorv evidence that donations had ever been collected l'rom memllers of the public. D.Ws. 2 and 6 who claimed to have made such contribution could not produce an~· account books which contained any ~u~h "'"'~::, di..:1vllgh they were running trade and business. (iv) Th!lre were clear contradictions in the statements of DWs. 4 and 8 on some material mailers and therefore their evidence could not be relied upon. (v) The evidence of P.W. I read with the recitals in Ext. B-5 negatived any inference of any public donation having been collected for the building of the shops or for the Kumbahishekam. (vi) The statements of DWs. 7 & 8 when considered in the light of the other evidence did not establish that the deity was taken out in a procession as alleged by the defendants. (vii)

It had not been satisfactorily proved that any non-Thoguluva performed any of the Mandagapodies on Navaratri day or that any monies were so collected for taking the deity in procession on Vaikunta Ekadasi day. (viii) The evidence of D.Ws. 2 and 6 on the question of the expenses of the Nagara, bell and Hundial was negatived by the absence of their mention in the report of the Commissioner. There was no mention of the Hundial even in some earlier affidavits or petitions. (ix) Even defendants 2 and 3 did not say in their written statements that there had been any user of the temple by the public as of right. They had only asserted that members of the Saurashtra public were worshipping there as of right.

It was pointed out by the learned judge that a temple worshipped even by a section of the public would be a public temple but the evidence which had been produced ·on behalf of the defendants was to the effect that any member. of the public whether a Saurashtra or a non-Saurashtra had.a·fight to workship there. The case as laid in th~ pleadings and as developed in the evidence was thus· inconsistent. The High Court observed that the origin and history of the shrine could not be traced with a;ny degree of continuity owing to the paucity of the evidence on the record. Reference was, ·however, made to the auction sale. It was not disputed before the High Court that the property formed the sul:1ject matter of ihe court sale comprised the suit property. Before the High T. D. GOPALAN v. COMMR. RbLiuiOG~ ENDOWMENTS (Grover, J.) Court the plaintiff relied on Ext. B-1 for two purposes : (1)

It showed that the property was private secular property and (2) the title to the property became vested in Thoguluva Tirumalliyan and members of his family. The observation of the High Court on these contentions was, "the document, Ext. B-1 (a) lends considerable support to these contentions of the plaintiff". The High Court, however, proceeded to note that in the descriptioq of the property in Ext. B-1 there was a mention of Garb ha Graha Prakaram and vacant site. etc, These terms were generally associated with only public temples. According to the High Cour: :here was no evidence to show how the worship at the shrine was conducted and who provided the necessary funds and 1 u .. : .. '" how the property was treated by the public authorities like the Governm~'" '" ···~ ~,fnnicinalitv.

It was common ground, however, that the shrine was a .iopular on<! at ieast among the members of the Saurashtra community and that Nilhyapadi pooja was being performed at the shrine just as in public tepiples. Particular reference was made by the Hizh Court to the ~xpenses of stone images which were to be installed in the suit premises in 194 7 the offer of the gift having been made by persons who did not belong to the Thoguluva family. In Ext. B-4 the donor5 offered to make three stone images at their cost and also offered a sum of Rs. 350/- for meeting all expenses in connection with the installation of newly made idols and the various ceremonies which were to be p\:rformed in connection with the same. An rnvilct(;~~' Fvt B-5 was issued in that connection for a Mahak"mbabishakam to be ce1ebrateci uu ;aru.taly 21, i54'/, In this invitation the plaintiff styled himself as the Honorary Secretary. The donors were described therein as the Udhayadars.

On March 17, 1947 the plaintiff wrote to the donors requiring them to pay Rs. 100/ - every month towards the pooja at the shrine. This. demand was said to have been made on the basis of the alleged agreement on the part of the donors to furnish the necessary ~xpenses for running the ·institution after the images were duly mstalled. The High Court felt that it was difficult to conceive of the owner of a private temple receiving gifts of images from. strangers and installing them in his temple; and it was impossible to reconcile the demamd for contributions with the claim that the temple was a private one. The High Court next proceeded to reproduce a summary of the statement of each of the witnesses produced by the defendants.

No attempt whatsoever was made to discuss the reasons which the learned Ditrict Judge had given for not accepting their evidence except for a general observation here ari there that nothing had blcen suggested in the cross-examination of. a particular witness as to why he should have made a false statement. We apprehend that the uniform practice in the matter of appreciation of eVidence has been that if the trial court has given cogent and detailed Slll'RfoME COl'RT REPORTS (1973)1 S.C.R. reasons for no~ acccptin_g the testimony of a witness the appellate court m all fairness to ii ought to deal with those reasons before proceedmg to form a contrary opinion about accepting the testii;nony which has been re1ccted by the tri~l court. We are, 'theretore, not m a pos1t10n to know on what grounds the Hich Court dt?agrced with the reason~ which prevailed with the· learned D1stnct Judge for not rely1,ng on the evidence o.f the witnesses produced by the defendants.

It seems that the approach of the High Court w.as ·also som~­ what influenced by the observations of the Judicial Committee of the Privy Council in Mundancheri Koman v. Achuthan Nair & · -0.hers( 1) that in the greater part of the Madras Presidency private temples were practically unknown and •he presumption was that the temples and their endowments formed public religious trusts. This was, however, not the case in Malabar where large tarwads often established private temples for their own use. Final· ly the High Court held that the temple was a public temple. After stating some other facts which were found, rresumably after believing the evidence produced b!y the defendant, the High Court made two observations which may be reproduced :- ( 1) "Admittedly the members of the public have been worshipping at the shrine without let or hindrance. ( 2) ....

The evidence on record shows unmistakably that this temple was being run only by contributions and by benefactions obtained from members of the public." Mr. Natesan who appears for the plaintiff-appellant has assailed the whole approach of the High Court to -the question o{ the character of the temple which, according to him, had been proved to be private in origin. It has been contended by him that the usual state of affairs to be fo11ind in Madras as per the observations of the Privy Council could not be applied to the case of Saurashtra community which migrated from the territories which now form part of the State of Gujarat ~nturies ago. This community, has, apart from several other individJ1al characteristics, maintained a tradition of having private temples. Moreover if the origin of the temple had tr-en proved to be private then according to the law laid down by the Privy Council itself in Babu Bha{?wan Din's case dedication to the public was not to be readily inferred.

Such an inference, if made, from the fact of user by the public was hazardous since it should not, in general. be consonent with Hindu sentiment or practice that worsh;ppers should be turned away: and, as worship _generally implied offer- (!) 61 I.A 405. .J. GOPALAN V. COMMR. '<ELIGlOUS ENDOWMENTS (Grover, J.) :ugs of some kind, it was not to be expected that the managers u! a private temple should in all circumstances desire to discourag~ popularity. It was further emphasised by their lordships that the value of public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as p,[ right. In Goswami Shri Mahalaxmi Vahuji v. Rannchboddas Kalidas & Others(1) it was pointed out that the appearance though a relevant circurnstance was by no means decisive.

The circumstance that the public or a section thereof had been regularly worshipping in the temple as a matter of cour'e and they could take part in the , estivals and ceremonies conducted in that temple apparently as a matter of right was a strong piece of evidence to establish its public character. If votive offerings were being made by the public and the expense. were being met by public contribution, it would be safe to presume that the temple was public. In short the origin of the temple the manner in which its affairs were managed the ri1turc and exten: cf the gifts received by it, rights exercised by devotee' in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple were factors that went to estabfah whether a t~mple was public or private. Mr. Natesari says that if the evidence of the .witnesses produced by the defenda.nts is not accepted as was not rightly accepted by the District Judge then there will be hardly any feature.~ or circumstances barring some of the physical features of the temple and the fact that people have been allowed to worship ond take part in the festivals and ceremonies and even to make some offerings, (though without their having the righ(...oto 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 tieng private. He has laid a great deal of emp':asis on the absence of any property attached to the temple which might be endO\'(ed. He says that admittedly only two shops were build by the family and out of the rents received from those shops together with other contributions made by the members of the family the expenses of the temple were being met. He has relied a great deal on the decision of a Division Bench c.f the Madras High Court in The Madras Hindu Religious Endowments Board v. V. N. D. Ammal('). There reliance had been placed on the following features : ( 1) that when the temple was built in 1919 Kumbabishekam was performed on a grand scale; (2) the respQndent had made Utsavamurthis and built Chaprams and the deities were also taken in procession on spe- <I) [1970] ~ S.C.R. 275. (I) [1953] 2 M.1..l. 618. SUl'-'EME COU.RT REPORTS [19'73] l S.C.R. cial occasions;

( 3) a Gurukkal had been engaged to perfom1 the pooja regularly and ( 4) the temple has got a Gopuram and other features which are usually found in a public temple. This is what Venkatarama Ayyar J., as he then was, observed: "It is true that the facts that there is an utsava idol and there are processions are generally indicative of t" - :act that it is ·a public temple. But then no property has been dedicated for the upkeep of the temple. The worship is maintained an.d the expenses are met frdm out of the private funds of the respondent. In the 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". At this stage the provisions of s. 9(12) of the M,adras Act 2 of 1927 which defines a temple may be noticed.

According to that definition it is a place by whatever designation known used as a place of public religious worship and dedicated or used as of right by the Hindu community or any section thereof ·as a place of public religious worship. In the Madras Hindu Religious and Charitable Endowments Act (Act 22 of 1959) the definition of "temple" is given in sub-clause (20) of s. 6. It is practically in the same terms as in the earlier Act. In our judgment the High Court was in error in holding that members of the public had been worshipping at the Mandapam in dispute without let or hindrance. In arriving at that conclusian 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 defendant's witnesses. Mr. A. V. Rangam who appears for the contesting respondent has endeavoured to take us through the evidence of the witnesses for demonstrating that the reasons given by the card the testin10ny of the defendant's witnesses. But we are learned District Judge were neither cogent nor sufficient to disunable to agree with him that the appreciation of evidence by the learned Judge was open to criticism as suggested by him. Apart from this the High Court did not consider the evidence produced by the plaintiff without which many matters could not be properly appreciated or explained.

The other finding of the High Court that the temple was being run by contributiqns and benefactions obtained from members of the public was also based mainly on the evidence produced by the defendllillts. In our T. D. GOPALAN v. COMMR. RELIGIOUS ENDOWMENTS (Grover, J.) 593 opinion the conclusion of the learned Dis•rict Judge on that point receives more support from ilie entire material 011 the record. It is significant that the High Court did not attach sufficient importance to tilree matters w'1ich, in the present casr, were cf material consequence. The first was that the origin of the Mandapam had beeu proved <o be private. The second was that its managetllent had remained throughout in the members of the Thoguluva family. Thi: third was the absence of any endowed property. There was no Gopuram or Dwajasthamba nor a Nagara bell nor Hundial in the suit temple.

The learned Di~­ trict Judge adverted to the evidence on all these and other relevant matters and we concur with him in his cooclusions. It is true that the suit temple had some physical characteristics and features which are generally to be found in a public temple. It was also established that persons who were outsiders in the sense that they did nut belong to the Thoguluva family used to come aind worship at the temple and made offerings there. Tlkre were also some jewels and other articles in the temple. But the determination of the question whether the temple was public or private did not depend on some facts or set of facts alone. The entire evidence, both documentary and oral, had to bl! considered as a wl:lele keeping in view the 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.

For all the above reasons the appeal i~ allowed, the judgment of the High Court is set aside and that of the District Judge restored. The appellant will be entitled to costs in this ' Court. Appeal allowed. V.P.S.