COMMISSIONER FOR THE HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS Vs. SWAMIKEELA ARASALWAR DHARMAM IN VEERA KERALA VARAMPURAM GRAMAM STREET SHENCOTTAH VILLAGE SHENCOTTAH TALUK TIRUNELVELI DISTRICT

JUDGEMENT

(1.) THE defendants in O.S. No. 183 of 1975 on the file of the Second Additional Subordinate .Judge of Tirunelveli, are the appellants in this appeal. THE respondents are the plaintiffs in the suit. THE plaintiffs laid the suit under section 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, XXII of 1959, hereinafter referred to as the Act, for setting aside the order of the second defendant dated 31st December, 1974, and for a declaration that the plaintiff trust and the properties belonging to it do not constitute a religious institution! as defined in the Act and for a consequential injunction restraining the defendants, their agents and subordinates from enforcing the provisions of the Act in pursuance of the order of the second defendant, referred to above. THE plaintiffs initially resorted to the process under section 63 (a) of the Act before the Deputy Commissioner for Hindu Religious and Charitable Endowments, Madras-34, in O.A. No. 41 of 1968 (Madurai) for a declaration that the plaintiff trust and its temple, Navaneethakrishnan Mandir would not constitute a religious institution as defined in the Act. THE said Deputy Commissioner, by order dated 29th April, 1972, marked in this case as Exhibit B-2, held that the plaintiff trust and the temple satisfy the definition of the term .temple. as defined in section 6 (20) of the Act and in this view, dismissed the application of the plaintiffs. THEre was an appeal to the defendant in A.P. No, 149 of 1973 and the second defendant, by order dated 31st December, 1974, as per Exhibits A-3 and A-4, dismissed the appeal, confirming the order of the Deputy Commissioner. Hence the plaintiffs were obliged to file the suit for the above reliefs.

(2.) ON an assessment of the materials in the shape of evidence, oral and documentary placed in the case the Court below came to the conclusion that the plaintiff trust and its properties cannot fall within the category of

(3.) ON the question of dedication, it is well-settted that it could be a matter, expressed in a deed or of inference from a course of conduct. The evidence of P.W. 1 clearly shows that there was a gift of the properties by the Kerala King to a particular body of Brahmins, called Alwars and who settled in a particular street and the residents of the street also went by the name .gramadars., the .street. itself being synonymous with .gramam.. At the time of the original gift of the properties and for a long time thereafter, there was no temple at all, and the temple was built only about 100 years back. Hence, initially there was no question of any place being used for religious worship, much less for public religious worship. The temple subsequently built was out of income from the original trust and not from outside donations. Then the question is as to whether the temple, which was built obviously as a private temple by the gramadars, has in course of time, become a public temple by express or implied dedication. As stated above, the beneficiaries under the gift from the Kerala King were specific individuals, a body of Brahmins, and their descendants the present gramadars, They, as a class, stood ascertained and are capable of being ascertained. There is the well-settled distinction between a private and a public trust. In the former case, the beneficiaries are specific individuals and they are ascertained or capable of being ascertained. In the latter case, the beneficiaries are the general public or a class thereof and they constitute a body which is incapable of ascertain-ment. There is no evidence in the present case that the trust or for the matter, the temple specifically, was by course of conduct, got dedicated to an indeterminate multitude of the public. There is no proof of user of the temple by the public as of right. Proof of user by the public, of the temple without interference and as of right would be cogent evidence that there has been a dedication in favour of the public. Such a proof in wanting in this case. It is true that Utsavams are being conducted and the deity is being taken in procession and on such occasions, there will be participation of outsiders. But the mere fact that festivals are being conducted and the deity is being taken in procession and at that time members of the general public participate in the functions are not sufficient by themselves to draw an inference that the temple has been dedicated to the public. Equally so, the presence of physical features which are usually found in a public temple is not of much significance, so long as the test of public religious worship as of right is not satisfied. The evidence of P.W. 1, clearly indicates that it is not expected by the gramadars that outsiders may worship in the temple and perform kainkaryam as of right. ON the other hand, there is a clear indication that the gramadars wanted to exclude the general public, other than themselves, from worshipping in the temple as of right. The mere fact that public is being allowed to participate in the festivals connected with the temple, of even allowed to worship in the temple could not persuade the Court to readily infer therefrom dedication to the public. The crucial test is that the Hindu public or any section thereof must be entitled to use the place as a place of public religious worship, and they must be doing it as of right and not as gratis from the persons in management.