Judgment

GUPTA, J.:- The only question disputed in this appeal is whether a temple, known as Varodaraj Venkataramana Temple at Gurpur in Mangalore Taluk in Karnataka, is a public temple or a temple belonging to Goud Saraswat Brahmin Community of Gurpur.

2. This is an ancient temple founded about 400 years ago. In a proceeding under S. 57 of the Madras Hindu Religious 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. Thereafter the appellants who are the trustees of the temple instituted a suit, O. S. No. 106 of 1961, in the court of the Subordinate Judge, South Karnara, for a declaration that the temple was a private in temple and not a temple as defined in S. 6 (17) of the Act or, in the alternative, for a declaration that it was 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 decision 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 private temple and not a denominational or sectional temple. The High Court found that this was a temple as defined in S. 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 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.

3. 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 witnesses 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 ceremonies. 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 "deprive 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 th