Observations made in the judgment is separate from the provisions of statute.

R.Jayasimha Babu, J

In this appeal filed by the State it is contended that the suit temple is a public temple. The learned single Judge has held otherwise by reversing the judgment of the trial Court.

2. The temple is situated in Thottipalayam village, Palladam Taluk. According to the plaintiff it is not a public temple and it is one that was installed by his fore-fathers. The temple does not have a Prakaram, does not have a Gopuram and there is no Hundial kept therein. According to the plaintiff, the public were permitted to worship therein on occasions, but not as of right. As against that claim of the plaintiff, the State relies upon the report filed by it by it's Inspector in which it is stated that information is received by the Inspector, that the temple was established by the grandfather of the plaintiff. He confirms in that report that there is no Gopuram, no Prakaram and that there is no Hundial kept therein. The only witness examined for the State is that Inspector, who merely states that at the time of his visit there were some people offering worship at the temple. There is no evidence of any Utsava held at the temple at the expense of the members of the public or of any donations made to the temple by the members of the public or that any festival was organised at the temple in which the public participated as of right. There is no evidence of Utsavamoorthy kept therein or of any procession being taken out for any other idol in connection with the poojas performed in that temple.

3. Learned counsel for the State contended that there is a presumption as regards the temples in south India that they are public temples and therefore the burden is heavy upon the plaintiff to dislodge that presumption.

4. The presumption on which the State wishes to rely is not one which is provided in any statute. No such presumption is set out in the Hindu Religious Charitable and Endowments Act. Counsel, however, contends that such a presumption has been recognised by the Courts and on that account has now become rule of law.

5. Counsel relied on the decision of the Privy Council in the case of Mundacheri Koman vs. Achuthan Nair, AIR 1934 PC 230 to which the apex Court referred in the case of T.D.Gopalan vs. The Commissioner of Hindu Religious and Charitable Endowments, Madras, AIR 1972 SC 1716. The decision in Gopalan's case was rendered by a two Judge Bench. The decision of the Privy Council is referred to in paragraph 10 of that judgment thus:

"It seems that the approach of the High Court was also somewhat influenced by the observations of the Judicial Committee of the Privy Council in Mundancheri Koman vs. Achuthan Nair, 61 Ind. App. 405 = AIR 1934 PC 230 that in the greater part of the Madras Presidency private temples were practically unknown and the presumption was that the temples and their endowments formed public religious trusts. This was, however, not the case in Malabar where large tarwads often established private temples for their own use. ...."

6. The case of Mundancheri Koman decided by Privy Council reported in AIR 1934 PC 230 concerned a temple in a Tarwad in the Malabar area of the then Madras Presidency. It was observed by Sir John Wallis who wrote the opinion for the Council thus,

"In the greater part of the Madras Presidency, where private temples are practically unknown, the presumption is that temples and their endowments form public charitable trusts. This was laid down by Seshagiri Ayyar, J., on an elaborate consideration of the whole subject in 1920 Mad 42 which was affirmed by the Board in 1924 PC 44."

7. The decision in the case of Lakshmana Goundan vs. Subramania Ayyar, AIR 1924 PC 44 does not set out the proposition set out in the judgment in the case of Mundacheri Koman vs. Achuthan Nair, AIR 1934 PC 230 even though in that appeal (AIR 1924 PC 44) decision rendered in AIR 1920 Madras 42 (Subramani Aiyyar vs. Lakshmana Goundan) was the subject matter of appeal. The Privy Council's opinion in that