His Holiness Sri Vishwothama Thirtha Swamiar of Sode Mutt v. the State of Mysore

Judgment

HIS HOLINESS SRI VISHWOTHAMA THIRTHA SWAMIAR OF SODE MUTT THE STATE OF MYSORE (B. P. 8rNHA, C. J., P. B. GAJENDRAGADKAR and RAGHUBAR DAYAL, JJ.) Temple-Large number of pilgrims visi'.ting and worshiping-If private or puhlic-Madras Temple Entry Authorisatio11 AC!, 19'7( Mad. V. of 1947), s. 2( 1). The shrine in suit which was originally founded by Shri Madhavacharya, a Hindu saint was managed for a long time in rotation by the heads of eight Mutts which were also founded by the said saint for ei~ht of his disciples. Large number of pilgrims from all over the country visited this shrine without any restraint, took part in the worship there, made offerings to the deity and received the prasad. The institution was managed with the monetary aid received from the State and contributions raised by the said heads of the ei_ght Mutts from devotees resident in different parts of the country.

The question arising for decision was whether the shrine in question was a ''temple" within the meaning of s. 2(1) of the Madras Temple Entry Authorization Act, 1947. Held, that in the absence of good evidence that a temple was a private one, the mere fact that it was visited by a large number of persons among the Hindu Public without any res .. traint for a number of years, was ~ood evidence or the fact that the temple had been dedicated to the Hindu Public and was for its benefit. Vibhudapriya v. Lakshmindra, (1927) L. R. 54 I. A. 228, referred to. BahuBhaqwan Din v. Gir Har Saroop, (1939) L. R. 67 I. A. I, :ind Sri Venkataramana lJemrau v. State of Mysore, [1958] S.C.R. 895, followed. In the instant case the finding that the Hindu Public had a right to worship in the temple was sufficient to make the institution a "temp1e'' within the definition of that term in the Act. even if the temple be appurtenant to a Mutt. CrvIL APPELLATE JURISDICTION : Civil Appeal No. 84 of 1959.

A'Jlpeal from the judgment and decree dated August 17, 1954, of the Madras High Court in A. S. No. 304 of 1951. December 18. 11111 H;, Jl<lwn ,,;v......,...,,.. ThWllM Bu-omiar •f S•tk Mwt 190 SUPREME OOURT REPORTS [1962] SUPP. A. V. Viswanatha Sastri and R. Gopalakrishnan, for the appellants. B. R. L. Iyengar and T. M. Stn, for respandent No. I. n,s,.1 .. JM;m• 1961. December 18. The Judgment of the R.,,.,,b., v.,.1 J. Court waR d1>livered by RAGHUBAR DAYAL, J.-The only question for determination in this appeal on a. certificate granted hy thr Madras Hiph Court is whether what has been described in the plaint 1\8 Shri Krishna Mutt in Shivalli Village, in South Kanara District, is a temple as defined in s. 2( I) of thA Madras Temple Ent.ry Authorization Act, 11147 (Madras Act V of I 947), hereinafter called the Act. Sub-section (l) of a. 2 of the Act reads :

" 'temple' mrans a pla.oe, by whatever name known, which is dedicated to, or for the benPfit of, or used a.s of right b}, the Hindu community or any section thereof, as a place of public religious wor1thip, anj includes subsidiary shrini>s and mantapams attached to Puch place ;" TbP Government of Madras, in exercise of of thP powers conferred on them under s. 6 of the A<'t, decided on June 3, I 948, that Shri Krishna Mntt wa.a a tt>mp le. The plaintiffs, who represent the heads of six of the eight mutts established at Udipi b:v Shri Madvacharya, instituted the suit for declaration that the Shri Krishna Mutt (not one of the eight mutts) was not such a temple and for the setting a~id" of the order of the Government of Madr1ts. The hi>ads of the other two mutts were impleaded as defendants Nos. 2 and 3. The Ftat3 of Madras is defondant No. I. Thi• State of )fadras alone> contested the 3uit and stated that the Shri Krishna Mutt was a temple as defined in the Act.

The Trial Court and the High Court held in favour of the defendant's I I contention with the result. that the plaintiff's suit stood dismissed. The plaintiffa have therefore come up m appeal. The case of the plaintiffa-appellants as disclosed in the plaint may first be stated. The great Saint and Savant Shri Madvacharya established the Mutt at Udipi in South Kanara District, for the propagation of the Dwaita system of thought. He himself resided there. He initiated eight disciiples and thus originated the 'Astha Mutts' (eight mutts) of Udipi. These disciples had to reside in the mutts and engage themselves in the study and propagation of learning. The way in which the ima.ge of Shri Krishna was installed in the Mutt is described thus :

"That the 'Shri Madva Vijaya', the life historv of the great teacher has it, that the Shri Krishna's image was acquired from a heap of Gopi ChaJ?dan from Dwarka brought by the sailors of a native craft whirh got stra.nded near Malpe where the teacher used to go every morning for his ablutions and tapas. Tradition has it that thr image is the same that had been worshipped bv Rukmini at Dwaraka in pre-historic days. The image was consecrated and installed by the great teacher in his mutt at Udipi and he began to worship it. This according to history and tradition is the origin of what came to be called popularly the Shri Krishna Mutt at Udipi." Shri Madvacharya, who installed the consecrated idol. in a shrine of his Mutt, worshipped it during his life-time and ordained that the worship be con. tinned by one or other of his eight disciples.

In order to regularise the worship of Shri Krishna and to give equal opportunities to the eight discipfes it was arranged that the worship be conducted by each. .of the disciples by rotation (pariyayam). Worship has continued according to this system for the several His Holiness Sri Vi1hwothama Thirth'J Swomiar o-jVSode Mutt Thi State of !lysor1 Raghubar Da_yal J. lHJ His Holi111s1 Sri YUAloo-• T•ar• .S&OOtkv of Sod.Mull Tiu S14i. •J MJmt R<11wbar D.,.I .; • 192 SUPREME OOURT REPORTS [1962] SUPP. centuries tha.t the Shrine ha.a been in existenoe. The hea.d of Ila.ch oft.be eight mutts cond•1ots the worship for a period of two years. During tbi1 period he occupios the Oadi or the seat or Sbri Madvacharya and is ca.lied the Pa.riyayam Swami.

The other seven heads of the mutts, when free from the duty of worshipping th;; image of Sri Krishna, he1an to take their abode in the vicinitv of the Mutt and thus came into existenoe the ci11ht independent mutts, thou11h the main Mutt started bv Shri Madvacharya, who consecrated and insta.llcd the Shri Krishna image, continued as tho Shri Krishna Mntt of Udipi. The Pari:vayam Swami meets tho expenses of the worRhin and other incidental expenB!lB from tho income of his own mntt and the income of the Shri Krishna llfutt. Ho conducts the worship himself. Shri Krishna Mutt is a shrine attached to the ancient M11t& st.art.Pd bv Shri Madvacharya and i11 not a place of public ~orship. It has no "individual existence apart from thP Mutt.. The shrine is not a place 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, but is intended for the Worship of the eight disciples. only.

It is however ~tated, in the Words of the plaint that 'worship by others could be offered only through Pariyayam Swami, with his consent and as a part of his ordina.ry worship.' Defendants Nos. 2 and 3, the heads of the two other mutt.II excludiniz the mutts of the plain· tiffd, accepted the plaintiffs' C&$e to be correct. The contesting defendant, the State of Madras, denied that the Shri Krishna Shrine is just a tem· plo attached to tho ancient must started by Shri Madvacharya. It is stated that it is one of the most important temples in Indi<\, that it attracUI a. large bo<ly of worshippers from throughout the SUPRE!l.'CE COURT REPORTS country, that the Hindu-public worship there as of right and that considerable offerings are made to th~ temple. It is d"nied that the temple is intended only for the worship of the eight swamiyars.

The learned Judges of the High Court de· livered separate judgments, but, in the main, agreed in the finding that the shrine in suit was a. temple within the meaning of s. 2(1) of the Act, in view of the following considerations : (I) Thill institution had been referred to, by authoritative authors anc;l in judicial pronouncements as Krishna temple. (2) The plaintiffs themselves stated in sub paragraph (7) ol paragraph 3 of the plaint that the Pariyayam Swami h3d the incontestable rig)lt to exclude anybody, including even the other Swamiyars of the eight mutts from the Shri Kishna Dev Temple during the period of his pariyayam. (3) The various docu.ments by which certain properties had been endowed to this institution, refer to it as the temple. (4)

The statements of the witnesses for the plaintiffs make it clear that Hindus in general, without any restrict.ion, worship the deity, that different individuals had endowed permanent sevas, that the pilgrims include persons other than the followers of Shri Madvacharya and that during certain utsavs, thousands of Madvas and non-Madvas, Brahmins and non-Brahmins, attend the fe11ti· val and the pilgrims put their money offerings in a box in front of the deity. ( 5) The inscriptions within the temple and the buildings near about show that this was not a private shrine appurtenant to the Mutt, but wli.s a public institution under the gene· ral supel"vision of the Hindu sovereigns of that area. (6) The pamphlet issued for the help of the pilgrims, Exh;.bit B-10 states that all the pilgrims are invited to participate in the worship of the deity, which is done as many as nine times a day, and to make offerings.

It gives detii.ils of the various 19111 His Holituss Sri Vishwothama T~irtha Swimi&r of Sode Mutt Th.'" St«tt of MJflre Ra1hubar Dayal J. 1P5/ HU HoliPUJS Sri Vi1Awol4-:oma Tlurtlia Sw~iar of SoJ1 Mufi TM Stalf of .Yysot't R•tltubar Dayal J. 194 SUPREME OOURT REPORTS [I 962) SUPP. kinds of sevas which could be offered b:v thA devotees and the fees for each are to he 0detnmined hy the Pariyayam Swami. It also Rtates that the Pariya;va Mutt would arrange for hom&R, Udyapana, Thulabhara, Brahmopade~a. AnnapraR&na and Namakarana ceremonies for the benefit of the devotees on payment of the persrribed amounts and that the devotees could endow •urns of money for burning Nanda Deepa and Deeps. Stha.mba. throuj.!'hout the year. (7) The predomina.nt f Pa.ture o! the institution has' been held to be the service or worship of Shri Krishna. a.nd not the propa.gation of religious knowledizo of the system of philosophy propounded by Shri Madva.charya.

The lea.med Judges were of opinion that •he fa.eta that the system of worship in this temple, is differ•mt from the system in other temples tha.t persons visiting the Pa.riyayam festival a.re fed and religious discourses are j.!'ivfm on the occasion a.nd that the swamiyats of the eight mutts had been interred in the compound near the temple, did not adversely affect the conclusion from the other circumstanoos that the Shrine is a temple to which the Hindus in general could go for worship as a matter of right. On one point regarding Shri Madvachnrya having a Mutt of his own, the lea.rnf'd Judges of the Hi1Zh Court appear to have had different views. Govinda. Menon J., said : "It is seen tha.t the present institution is far famed throughout the length and brcadth of India. and the large concou1 ~e of peo· pie resort to this place for worship and there is nothing to Rhow that the Swamiars have treated this institution a.s their private property or anythin!! of. the kind.

The admi&eions of P.W, 2 a.swell as the other witnesses point to the fact that the temple is one intt>nded for the benefit of the public and that public resort to it for religious worship and that though the image of Sri Krishna was installed by Madhwacharya in his own residence or lodging subsequent course of conduct during the centuries have made this abode of Sri Krishna a public temple." He also stated, at another place in his judgment, "As I have stated already, originally th~re wes a mutt and subs.,quent to the installation of the image of Lord Krishna there by Sri i\fadhwacharya it has grown up by centuries of public worship into a public institution.'' Ramaswami J .. has expressed himself differently on the question that Sri Madhvacharya had a mutt and installed the deity in it.

He states, when considering the statement in Chapter 9 of the Madhwa Vijaya to the effect that Sri Madvacharya sportively brought the image to the Mutt, "The Math referred to in the 42nd stanza must obviously mean the Kshetra of Anantheswara which is referred to as Roopya in Sampradaya Paddhati of Hrishikesha Thirtha. The reason is, as well pointed out by the learned Subordinate Judge, that as Achyuta Preksha had taken his ahode in that Kshetra and was engaged in teaching to his disciples therein, this Kshetra mnst have been referred to as the Math as by that time it is nowhere established that Madhwacharya had established a Math of his own and the teaching should have all been done in the temple of Anantheswara itself. Therefore, the Math referred to must be the temple nf Anantheswara. This receives corroboration in two ways.

In the end of Madhwa Vijayam, it is stated that while expounding Aittariyopanishat to his l:iishyas in JY~I His Holiness Sri Vishwothama '(hirlha Sw1miar of Sode llfutt The S !.lte o.f J.1._vsore Ragh.ubar 1Jt1yal J. His Holiltus 8,i Visi\wo#Aame I Air14a Sw-.iar o/S .. M•tt 7711 sw. •I Ill fsort a.,,,,,_ Dq•I J. the temple of' Anantheswara, the Aoharya. is stated to · ha.ve disappeared from mundane existance. In fact even today the seat which is said to have been uaed by Sri MBdhwa.charya. is shown to the pilgrims. Seoondly, that tho Anantheswara. temple was the seat of teaching by MadhwaobaTya receives corroboration e.nd therefore separate Krishna Math could not have existed is eeen from tht1 importance attaching to Anantheewara even today. Anantheswara is considered to be the holder of' the Mull right and Sri Krishna is treated as his tenant."

Learned counsel for the appellants submitte(I that the reference to the institution as a temple by the authoritativi, authors and in judicial pro· nouncements was really in a general senoe, the institution being a temple in the usual eence of the terms as it is a shrine in which the idol of Sri Krishna is ill8talled and is worshipped. His contention is that it is not a temple a.s defined in the Act, as the Hindus in general, or any section of the Hindus, had no right to worship there and that the fact that a number of pilgrims ordinarily visit the temple for worship is not inconsistent with the temple being a private one and not dedicated to the Hindus in general or a section of them. He pointed out tliat Ramaswami J., wa.s wrong in stating: " .........

P.W.l, the Matadbipathi of the Bhandrikere Mutt, had to admit in orOll8-examination the public participation as of right in the worship of the temple without the permission of the Paryaya Swami, thereby giving the go-by to the plaint allegations to make out that this is a private cha pie." This is correct, but doea not materially affect the decision a.s suoh a conclusion from the 11tatement could be arrived at. 28.C.R. SUPREME COUR'I REPORTS We aeree with the view of the learned Judges of the High Court t,hat the shrine in suit is a tempi!' as defined in s. t ( 1) of the Act. The evidence on record is fully consistent with the findings of the Courts below that this templo is a place dedicated to the Hindu public and is used by them as a place of public religious worship. It is not disputed that a large number of pilgrims from all over the country visit this place, take part in the worship there, make offerings to the deity and receive the prasad.

The institution also receives monetary aid from the State. In Vibhudapriya v. Lakshminilra ( 1) is quoted at page 232, an extract from the South Kanara Manual published under the authority of Government. The extract reads : "The tem pie of Krishna, at U di pi, is said to have been founded by Madhavacharya himself who set up in it the image of Krishna originally made by Arjuna and miraculously obtained from a vessel wrecked on the coast of Tuluva ......... Besides the temple at Udipi he ea ta blished eight 'Mathas' or sacred houses, each presided over by a Sanyasi or Swami.

These exist to this day and each Swami in turn presides over the temple of Krishna for a period of two years and spends the intervening fourteen years touring throughout Kanan~ and the adjacent parts of Mysore levying contributions from the faithful for the expenses of his next two years of office, which are very heavy as he has to defray not only the expenses of the public worship and of the temple and Matha establishments, but must aJsg feed every Brahman who comes to the place." It is clear from this extract that the various Swamis tour about the country realising contributions from the devotees for the expenses which (I) (1927) L. R, 54 I. A, 228. H •s Holiness Sri Vis,'1wothama Thirtha Swamiar oj Sode Muu The State of Mysore Ra,rhubar Dayol J. IPOI Bir Holin1u Sri ViMu.<>1/Jomo TIWIM SwomUu of Sod1 MuJI n, SIAll ,, MJs«• R.,W.. D.,.i J, each of them hfls to incur during the period of his pariyayam, that the expenses which he has to incur during the period are heavy.

The expenses are met out of the income during the two years of his pariyayam from the State aid and the offerings of pilgrims and income of his own mutt. The fact of raising contributions from the devotees resident in different parts of the country is clear proof of the fact that such devotees have a right to visit the temple and to worship there. If they have no such right, it is improbable that they would be visited -by t.he Swamis for contributions. The fact that no instance of any pilgrim being refUBed penniBSion to worship during the course of the oenturies sinOA the installation of the deity goes a long way in establishing and supporting the finding of the Court below that the inetitution has been held out as one for the benefit of the Hindus and that the Hindus in general have gone to it for wor- !!hip in exercise of their right of worship and not on account of the permission,. &xpr01111 or impliecl, of the Pariyayam Swami.

It is true that the fact that a ::iumber of pilgrims visit the temple for wol'llhip regularly need not, in all cases, lead to the conclusion that the temple is a public one; but such a conclulion will not be arrived a.t only when there is good evidenoe about the temple bei~ a private one. This is really what was held in Babu Bhagwan Din v. Oir Har Saroop (1) to which reference has been made by the learned oouneel. The Privy Council, in that case, after coming to the conclusion that the genera.I effect of the evidence was that the family had treated the temple as family property, dividing the various forms of profit, whether offerings or rent., cloeing it so as to exclude the public from worship when marriage or other oeremonies required the attendanoe of the members of the family at it. (I) (1939) L. R. 671.A. 1. 2S.C.R. original home and erecting saraadhs to the honour of its, dead, said at page 9:

"In these circumstances, it is not enou~h in their Lordships' opinion, to deprive the family of their priv:;tte property to show that Hindus willing to. worship have never been turned away, or even that the deity has acquired considerable popularity among Hindus of thP locality or among persons resorting to the annual mela. Worshippers are naturally welcome at a temple because of the offerings they bring and the repute they give to the idol; they do not have to be turned away on pain of forfeiture of the templn property as having become property belonging to a public trust. Facts and circumstances, in order to be accepted as sufficient proof of dedication of a temple as a public temple, must be considered in their historical setting in such a case as the present; and dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family."

It follows, therefore, that in the absence of goon evidence that a temple is a private one, the mere fact that it is visited by a large number of persons among the Hindu public without any restrain for a number of years, will be good evidence of the fact that the temple had baen dedicated to the Hindu public and was for its benefit. Reference may usefully be made to the case reported as Sri Venlcataramana Devaru .-. The State of }lfysore. (') In this case, a temple was founded for the benefit of Gowda Saraswath Brahmins, who managed it throughout. They were the followers of the Kashi Mutt. The head of that Mutt performed various religious ceremonie8 in the temple. It was alleged that persons who were not (I) [1958] S.C.R. 895. His Holiness STi Vishwothama Tldrtha Swamiar of Sode Mutt ·1 he Stale of 111;sort Baghuhar Dayal J. lHJ His llolin1;s S1i VisA:.volhan"t Tlarth4 Sw.llfli~r of Sode Mutt TN St.ii of MJsor1 &,iluh•," Da:µI J. Gowda Saraswath Brnhmins could not Pnter wit.h· out the permi8sion of the trustees.

However, there was no instance in which such permiasion was refused. There was evidence that all communities had beon freely admitted into the temple. It was contended that the free admission of all communities and there being no instance of any refusal of permission, led to the conclusion that the Hindu public generally had a right to worship in the temple. In considering this contention, it was said at page 907: "The law on the subject is well settled. When thlll"e is a. question as to the nature and extent of a dfldication 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 admisaibl<'; !!Jld proof of long and uninterrupted user would be cogent evidence of the terms there· of.

Where, therefore, 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 he 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 I11embers of other communities were allowed freely to \Vorship cannot lead to the inference that the dedica· tion was for their benefit as well. For, as observed in Babu Bhagwan Din v. G1r Har Saroop (67 I.A. I), 'it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away'." There is no documentary evidence in this case for supporting the contention of the appcll·n·s that the temple was originally founded for the private use of Shri Madvacharya and his disciples.

In the absence of such evidence, the long user of the temple by the Hindus in general, together with there being no instance of anybody having b~en refused permission, must lead to the conclusion and support the finding that the temple had been denicated to the Hindus in general, and was for their benefit. Further, there is no evidence on record, oral or documentary, of course oral was not possible, of the fact that Shri Madvacharya had a Mutt of his own prior to his obtaining the idol of Sri Krishna which he installed in this temple. He is said to have set up eight different Mutts, each for one of his eight disciples. All these eight Mutts have particular names. No Mutt is named after t:\ri Madvacharya. Ramaswami J., has given good reasons for the view that Sri Madvacharya had no Mutt of his own. A primary Mutt associated with the founder himself must have an independent permanent head. There is no such Matathipathi or head of this so-called Mutt.

One of the eight swamis, the heads of the Asth Mutts, acts as head or manager of this institution for a period of two years. The absence of a head and this system of a head or manager being appointed by rotation, very clearly point to the conclusion that the institution in suit is neither a Mutt nor a temple appurtenent to a Mutt. In 1937, the Board of Commissioners for the Hindu Religious Endowments, Madras, passed an order under s. 84 of the Madras Hindu l{eligious Endowments Act, 1!!26 (Act II of 1927), that this institution was not a temple as defined in that Act, but was a place of worship appurtenant to Sri Krishna Devaru Math, Shiva.Hi, Udipi Taluk, South Kanara, District. It has been urged for the appellant that this order bars any further enquiry and a J981 His Holintss Sri Vishwothoma Thirflta Swamiar of Sode Mutt The Stale of 1"1ysore r. Ra_~hubar Dayal J. 11/01 Hu llolinlss Sri ViJJiwothanM f hirllia Swamiar of Sod1 Moll Tk1Sta'4 of klysor1 R•thllilGf' D~al J. 20:!

SUPHEME COURT REPO.RTS (1962] SUPP. different conclusion under th-:i Act with reapect to the n<iture of this institution. The Courts below have held against this contention and, we think, rightly. The finding of the Board was, in their own words: "Our decision that tho institution is appurtenant to a math and forms part of it can in no wise affect the righta of the deity to the properties owned by it and the rights of the Hindu public to worship direct, subject to the regulaticns prescribed by the Paryayam Swamiar for the time being. We hold that it is not a temple a8 defined in the Act, but it is a place of worBhip appurtena.bt to the Math." The finding that tho Hindu public had a right to worship in this temple is s11ffici1mt to make the institution a temple within the definition of that term in tJie Act (Madra.1> Act V of 194 7), even if the temple be appurtenant to a Mutt.

The Board's order, therefore, cannot ~ffect the consideration of the question of tho institution being a. temple within tho meaning of the definition in the Act. We are therefore of opinion that the Courts below have come to tho correct conclusion that the institution in suit is a temple within the meaning of tho word "temple" in the Act and that the appeal should fail. We accordingly dismias the appeal with costs. .d ppeal diamisaed.