Point of Law: Question as to whether a religious endowment is of a private or public nature, is to be decided with reference to the facts proved in each case and that it is difficult to lay down tests which may be of universal application.

JUDGMENT :

Is the plaint scheduled temple a private temple belonging to the plaintiffs or is it a public temple, is the short question involved in this appeal. The relief claimed is, for a declaration regarding the status of the temple and a consequential injunction not to interfere with its administration. The suit was dismissed by the trial court. The decree was reversed in appeal, and the suit decreed as prayed for. Hence this appeal by the defendants.

2. The first plaintiff is the deity and the second plaintiff is the senior most member of the family-the Animangalath Illom. The 2nd plaintiff claims title over the plaint schedule temple and its properties under Ext.A1 Partition Deed of the year 1968 executed in the family. In the said partition, the temple and its properties were set apart to the 2nd plaintiff's branch. According to the second plaintiff, there is a “kottil” attached to the temple wherein the karanavan of one Varikkassery family is being worshipped. The 2nd plaintiff entrusted the management of the temple to one Varikkasseri Mohanan, and he was managing the affairs. Recently he expressed difficulties to continue with the management. The defendants are attempting to assume management of the temple. It is accordingly that the suit is filed. A declaration is sought, that the temple in question is a private temple belonging to the family of the plaintiff and for prohibitory injunction to restrain the defendants from interfering with its management.

3. The defendants contended that, the temple in question was lying in a dilapidated condition and in the year 1978, the local people formed a committee and took over the management of the temple. Poojas, festivals etc. were and are being conducted by the committee by receiving contributions from the public. The temple in question is a public temple, it is contended.

4. The trial court, on appreciating the evidence concluded that, though the temple was originally a private temple, it has been transformed as a public temple by implied dedication. On appeal, the first appellate court held that, since the rights of the second plaintiff and the family members to manage the temple has not been assigned, it continues as a private temple. Accordingly the suit was decreed.

5. Heard learned Senior Counsel Sri.T.Krishnanunni on behalf of the appellants-defendants and Sri.T.M. Chandran, the learned counsel for the respondents-plaintiffs on the following substantial questions of law:-

“(i) Was the first appellate Court right in holding that, in the absence of an assignment of the rights by the plaintiff’s family there could not be a change in the character of the temple from private to public?

(ii) Is the evidence on record sufficient to find that the character of the temple has changed from a private temple to a public temple?”

6. It is not in dispute that the temple in question originally belonged to the family of the second plaintiff. Whether the nature of the temple has changed from that of a private temple to a public temple is the issue. The learned counsel for the respondents-plaintiffs relied on the judgments of this Court in Sree Kandakarna Kshethra v. Karunakara Thandar [1994 (2) KLT 246] and Kidangoor Devaswom v. Krishna Namboothiri [2016 (1) KLT 778] to contend that, mere active public participation in the affairs of the temple and even receiving public contributions for the affairs of the temple, is not sufficient to deduce an implied dedication of the temple to the public.

7. In Goswamy Shri Mahalaxmi Vahuji v. Shah Ranchhoddas Kalidas (dead) & Ors. [AIR 1970 SC 2025], the Apex Court laid down certain questions to be answered by Courts while determining whether a temple is a private temple or a public temple. The Apex Court held that, to find that a temple, private in its origin, has become a pubic temple, there must be proof to show that it is being used as a public temple. The circumstances, the Apex Court held to be relevant are:-

“(1) Is the temple built in such imposing