PETITIONER:
GURPUR GUNI VENKATARAYA NARASHIMA PRABHU& ORS.
Vs.
RESPONDENT:
B.G. ACHIA, ASSISTANT COMMISSIONER, HINDURELIGIOUS AND CHAR
DATE OF JUDGMENT15/04/1977
BENCH:
GUPTA, A.C.
KRISHNAIYER, V.R.
CITATION:
1977 AIR 1192 1977 SCR (3) 632
1977 SCC (3) 17
ACT
Madras Hindu Religious and Charitable Endowments Act,
1951---S. 6(17) ’Public Temple’. An inference of dedication
to the public from the fact of admission into the temple and
uses by the public is not correct.
HEADNOTE
S. 6(17) of the Madras Hindu Religious and Charitable
Endowments Act, 1951 defines a temple as "temple" means a
place by whatever designation known, used as a place of
public religious worship, and dedication to, or for the
benefit of or used as of right by, the Hindu Community or
any section thereof, as a place of public religious worship.
The Deputy Commissioner, in a proceeding u/s 57 of
Madras Hindu Religious and Charitable Endowments Act, 1951
and the Commissioner on appeal held that an ancient temple
founded about 400 years ago known as Varadaraj Venkataraman
Temple at Gurpur in Mangalore Taluk in Karnataka as a
’Public Temple’. But in the suit No. DS. 106/1961
instituted by the appellant trustees of the temple for a
declaration that the temple was a private temple and not a
temple as defined in s. 6(17) or in the alternative that it
was a denominational or sectional temple belonging to the
Goud Saraswat Brahmin Community of Gurpur, the Subordinate
judge South Kanara, held on the evidence that this was a
denominational or sectional temple belonging to the Goud
Saraswat Community and allowed the alternative declaration.
The High Court on appeal found that this was a temple as
defined in s. 6(17) of the Act and taking a different view
of the evidence held that the temple was a place of
religious worship dedicated to and used as of right by the
general Hindu Community and was thus a public temple.
On appeal by certificate the Court,
HELD: (1) It is now well settled that "the mere fact of
the public having been freely admitted to the temple cannot
mean that Courts should readily infer therefrom dedication
to the public. The value of such public user as evidence of
dedication depends on the circumstances which give strength
to the inference that the user was as of right." [635 B-C]
Bihar State Board Religious Trust, Patna v. Mahant Sri
Biseshwar Das, [1971] 3 S.C.R. 680 (689) referred to.
(2) In the instant case the circumstances disclosed in
evidence do not support the inference that Hindus generally
used the temple as a place of worship as of right. The
evidence is to the effect (i) that the temple was founded by
37 Goud Saraswat Brahmin families of Gurpur, (ii) that the
trustee managing the temple belonged always to the members
of said community, (iii) that the lended properties owned by
the temple had all been endowed by members of the Community,
(iv) that none of the witnesses claimed a right of ownership
in the temple and the small sevas were voluntary, (v) that
it was the members of the Goud Saraswat Brahmin Community
who were allowed to participate in the more important cere-
monies. [634 B-D; 635D]
(3) The High Court’s finding that "numerous endowment"
have been made by Hindus not belonging to Goud Saraswat
Brahmin Community, is not subpotted by the evidence in the
case. In the context of the Award (Ext. A-13) the term
general body mentioned therein could only refer to the
members
633
of the Goud Saraswat Brahmin Community and not to the Hindu
Community generally, because the proceeding concluded by the
decree was confined to the members of the Community. [635
A-B]
JUDGMENT
CIVIL APPLELLATE JURISDICTION: Civil Appeal No. 2176 of
1968.
Appeal from the Judgment and Decree dated the 18-8-1965
of the Mysore High Court in M.F.A. No. 341 of 1964.
S.T. Desai, K.N. Bhat and R.B. Datar for the Appellants.
Narayan Nettar for Respondent.
The Judgment of the Court was delivered by
GUPTA, J. The only question disputed in this appeal is
whether a temple, known as Varadaraj Venkataramana Temple at
Gutput in Mangalore Taluk, in Karnataka, is a public temple
or a temple belonging to Goud Saraswat Brahmin Community of
Gurpur.
This is an ancient temple founded about 400 years ago.
In a proceeding under section 57 of the Madras Hindu Reli-
gious and Charitable Endowments Act, 1951 (hereinafter
referred to as the Act), the Deputy Commissioner by his
order dated January 17, 1961 held that the temple was a
public temple and the Commissioner on appeal affirmed the
order of the Deputy Commissioner on June 12, 1961. Thereaf-
ter the appellants who are the trustees of the temple insti-
tuted a suit, O.S. No. 106 of 1961, in the court of the
Subordinate Judge, South Kanara, for a declaration that
the temple was a private temple and not a temple as defined
in section 6(17) of the Act or, in the alternative, for a
declaration that it was a denominational or sectional temple
belonging to the Goud Saraswat Brahmin community of Gurpur.
There was also a prayer for cancellation or modification of
the order of Commissioner dated June 12, 1961 affirming that
of the Deputy Commissioner that this was a public temple.
The Subordinate Judge held on the evidence that this was a
denominational or sectional temple belonging to the Goud
Saraswat Brahmin community of Gurpur and not a private
temple. He further held that there was no evidence before
the Deputy Commissioner justifying his order which was
affirmed by the Commissioner that it was a public temple.
He observed that "it is incorrect to draw an inference of
dedication to the public merely from the fact of user by the
public". Accordingly, he allowed the alternative declaration
asked for by the plaintiffs and modified the order of June
12, 1961 made by the Commissioner affirming the order of the
Deputy Commissioner dated January 17, 1961. From the deci-
sion of the trial court, the respondents preferred an appeal
to the High Court. The appellants before us also filed a
cross objection contending that the Subordinate Judge should
have held that the temple was a private temple and not a
denominational or sectional temple. The High Court found
that this was a temple as defined in section 6(17) of the
Act. On the evidence also the High Court took a different
view from the trial court and held that the temple was a
place of religious worship dedicated to and used as of right
by the general Hindu community and was thus a public temple.
On this
634
view the High Court allowed the appeal and dismissed the
cross objection. The appeal before us is by the plaintiffs
on certificate granted by the Karnataka High Court.
The Subordinate Judge held on the evidence that the
temple was founded by 37 Goud Saraswat Brahmin families of
Gurpur, that the trustees managing the temple belonged
always to the members of the said community, that the landed
properties owned by the temple had all been endowed by
members of this community, and that there was no reliable
evidence of endowment of any immovable property by any
person outside the community. The Subordinate Judge on
considering the evidence of defendants’ witness Nos. 2 to 4,
on whom the defendants relied to prove that the temple was
dedicated to the general Hindu community, found that none of
them claimed a right of worship in the temple and the
’sevas’ offered by them were voluntary and the income from
such sevas was also small. He further found that it was
only the members of the Goud Saraswat Brahmin community who
were allowed to participate in the more important ceremo-
nies. It was observed that the fact that Hindus other than
those belonging to the Goud Saraswat Brahmin community were
not prevented from worshipping in the temple did not "de-
prive the temple of its sectional character", that it was
"incorrect to draw an inference of dedication to the public
merely from the fact of the user by the public". Thus the
decision of the Subordinate Judge was that the temple was
not a public temple because it was not dedicated to the
general Hindu community but for the benefit of Goud Saraswat
Brahmin community of Gurpur.
The High Court held that the definition of temple in
section 6(17) of the Act covers the temple in question.
The definition is as follows:
""temple" means a place by whatever
designation known, used as a place of public
religious worship, and dedicated to, or for
the benefit of or used as of right by, the
Hindu community or any section thereof, as a
place of public religious worship;"
Even on the findings recorded by the Subordinate Judge, this
would be a temple dedicated to or for the benefit of a
section of the Hindu community and as such covered by the
definition. The High Court reversed the decision of the
Subordinate Judge and held that "facts of the present case
lend support to the conclusion that the temple must have
been dedicated for the benefit of and used by the Hindu
community and is being used by them, as of right, as a place
of public religious worship". The facts that weighed with
the High Court were that Hindus generally came to worship in
the temple and were not turned away and that when the deity
is taken out in procession, members o.f the Hindu community
other than Goud Saraswat Brahmins also offer "araties". The
claim made by some of the witnesses for the defendants that
they used to consult the oracle in the temple also seemed to
the High Court a significant circumstance. But the High
Court appears to have overlooked that these witnesses admit-
ted that "before consulting the oracle,
635
the manager must be told of it and it is he, who could
consult on their behalf". The High Court has recorded a
finding that "numerous endowments" have been made by Hindus
not belonging to Goud Saraswat Brahmin community. This is
not however supported by the evidence in the case. Another
circumstance which impressed the High Court was the recital
in an award (Ext. A-13) which was made part of the decree
(Ext. A-3) in a previous proceeding between the members of
Goud Saraswat Brahmin community themselves, that the trus-
tees of the temple should place the accounts of income and
expenditure before the "general body". This "general
body" according to the High Court implied, the Hindu
community generally. In the context of the award (Ext. A-
13) it is however clear that the ’general body’ mentioned
therein could only refer to the members of the Goud Saras-
wat Brahmin community because the proceeding concluded by
the decree was confined to the members of the community.
The law is now well settled that "the mere fact of the
public having been freely admitted to the temple cannot mean
that courts should readily infer therefrom dedication to the
public. The value of such public user as evidence of dedi-
cation depends on the circumstances which give strength to
the inference that the user was as of right". (see Bihar
State Board. Religious Trust, Patna v. Mahant Sri Biseshwar
Das(1). We find that the circumstances disclosed in evi-
dence in this case do not support the inference that Hindus
generally used the temple as a place of worship as of right.
The appeal is accordingly allowed. The Judgment of the
High Court is set aside and that of the trial court re-
stored. In the circumstances of the case we make no order
as to costs.
S.R. Appeal allowed.
(1) [1971] 3 SCR 680 (689).
502SCI/77--2500--23 - 11-77--GIPF.
636