V. MAHADEVA GURUKKAL Vs. THE COMMISSIONER FOR THE BOARD OF HINDU RELIGIOUS ENDOWMENTS REPRESENTED BY ITS PRESIDENT

JUDGEMENT

(1.) O .S.A. No. 47 of 1949 had been filed against the judgment and decree of our learned brother, Panchapagesa Sastri, J., dated 22nd April, 1949, in O.P. No. 117 of 1948, dismissing that O.P. which had been filed by one Mahadeva Gurukkal, for setting aside an order of the Hindu Religious Endowments Board, holding Sri Vallabha Vinayagar Temple, situated in No. 176, Anna Pillai Street, G.T., Madras, as a " temple " under Section 9(12) of the Hindu Religious Endowments Act. Panchapagesa Sastri, J., had dismissed that O.P. and held the temple in question to be a public temple under Section 9(12) of the Act for various reasons. The main ones were seven: firstly, there was no evidence to prove the contention of Mahadeva Gurukkal that the temple was founded by his ancestors; secondly, the evidence let in by the respondents showed conclusively that the Hindu public of that locality (the Kotwal Chavadi area) were worshipping in the temple as of right, without taking any permission from the petitioner or his predecessors -in -title; thirdly there were utsava vigrahams in the temple which were often taken out in procession for worship by the Hindu public, particularly during a big and important festival in Margazhi lasting for several days, fourthly, several ubhayams were performed in connection with the utsavams and these were performed by strangers, mainly merchants of the locality, at great expense, without any permission taken from the petitioner or his predecessors -in -title and the general public were also putting into the hundi kept outside the temple, by the Arshaka, several sums daily, aggregating to Rs. 2 to 4 per day; fifthly, the temple was not erected for the private worship of the petitioner or his family, as it was situated three miles away from his dwelling house, and was not being visited by his people, and none of his people were also residing in the temple premises or near about and the temple was clearly intended to be one for public religious worship; sixthly, it was recited in a document, Exhibit P -4, distinctly that Ayya Gurukkal and other predecessors -in -title of the petitioner, were merely trustees of Sri Vallabha Vinayagar Temple, having a right or turn of archakaship, which would indicate that they were merely entitled to be hereditary archakas and trustees, and not that they were the owners of the temple, as a private temple; and seventhly there was a presumption all over South India, except Malabar, that temples are public temples and that presumption had not been rebutted satisfactorily by evidence to the contrary, but had, on the other hand, been strengthened. The question of the ownership of the other portions of the building in one room of which alone this temple was located, and of the adjoining bakery, was left open with the remark that they might be private property as the documents relating to partition and mortgage indicated. He confined his finding to the temple itself, which was admittedly located only in one room in the house property, No. 176, Anna Pillai Street.

(2.) WE disposed of O.S. No. 47 of 1949, as early as 16th October, 1951. We confirmed the finding of Panchapagesa Sastri, J., regarding the temple being a public temple, falling within the scope of Section 9(12) of the Hindu Religious Endowments Act and left open the question regarding the ownership of the rest of the premises which consisted of the bakery, a shop and godowns, and dismissed the appeal with costs.

(3.) THE petition was strongly opposed by Mr. Vaidialingam, the learned advocate for the Commissioner for Hindu Religious and Charitable Endowments, as belated, and also on the ground these documents, could have been discovered, and filed, with due diligence even in the O.P. and were, in fact, known to the appellant long ago and were not filed because they were not of any importance for determining the points at issue, and that, in any event, these documents would not make the slightest difference to our decision, and so, the review petition should be dismissed.