R MAYAPERUARNL AND Vs. AZHAGAPPAN NADAR DIED

JUDGEMENT

(1.) The short question that arises for consideration in these Letters Patent Appeals, which are directed against the common judgment of a single Judge of this Court in A.S.Nos.473 of 1973 and 282 of 1974 is whether the Azhakianayagi Amman temple situated in S.No.14020 in Neendakara B village, Agasteeswaram taluk, Kanyakumari district, is a public temple and whether the provisions of the Hindu Religious and Charitable Endowments Act, 1959 (for short the Act) apply to the said temple. Since that is the only question that has been argued before me, it is unnecessary to refer to the detailed facts of the case except to state that the suit was filed by the respondents-plaintiffs for a declaration that the said temple was a private temple and would fall outside the purview of the Act and also to set aside the order passed by the statutory authorities holding that the said temple was a public temple and would attract the provisions of the Act. O.S.No. 42 of 1971 was originally filed by the plaintiffs without issuing a notice to the Commissioner, H.R.&C.E., under section 80 C.P.C., and O.S.No. 27 of 1972 was filed for the same relief after the notice was issued. The suits were filed under Section 70 of the Act. The trial Court dismissed both the suits. On appeal by the plaintiff, Sethuraman, J., by his common judgment and decree dated 15th December,1977 set aside the judgment and decree of the trial Court and decreed the suit holding that the said temple was a private temple and consequently the provisions of the Act would not be attracted.

(2.) L.P.A.Nos. 113 and 114 of 1978 have been filed by the Commissioner, H.R.&C.E. and L.P.A.Nos. 6 and 7 of 1978 have been filed by Mayaperumal, the second defendant in the suit.

(3.) Mr.K.S. Bakthavatsalam, on behalf of the Commissioner, H.R.&C.E., the appellant in L.P.A.Nos. 113 and 114 of 1978 and Mr.Ram Mohan on behalf of the appellant in L.P.A.Nos. 6 and 7 of 1978 contended that the learned Judge was not correct in holding that the temple belonged to the family of the plaintiffs and was a private temple falling outside the purview of the Act. According to the learned counsel, the presumption is that the temples in Tamil Nadu are public temples. There is absolutely no evidence on the side of the plaintiffs that the temple belonged to the family of the plaintiffs. The physical features of the temple and the fact that persons other than the members of the family of the plaintiff worship in the temple would conclusively prove that the temple is a public temple. Even on the evidence available the plaintiffs relations are spread over seven villages and since they constitute a section of the Hindu community, the temple must be declared to be a public temple. The learned counsel also stated that there is evidence to show that the public have made donations to the temple.