A temple owned by a religious denomination or any Section thereof will come within the ambit of 'temple' as defined in Section 6(20) of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959, and is protected under Article 26 of the Constitution.

GOKULAKRISHNAN, J. :- Plaintiff is the appellant. The suit is for setting aside the order of the defendant -Commissioner, H. R. and C. E. Department and for a declaration that the suit institution is not a temple as defined in the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959, (Tamil Nadu Act 22 of 1959). At this appellate stage, the appellant had filed C.M. 15, 1796 of 1979, praying that his prayer in the plaint may be amended adding the following words -

"or in the alternative, declare that the suit institution is a denominational temple belonging to a religious denomination, viz., Thalakulam Melatheruchetti. Samudayam".

By an order dated 2-4-1979, we have amended the plaint as prayed for since we felt that the proposed amendment does not require investigation of new facts or evidence and since a lesser relief is now claimed no prejudice would he caused to the respondent by allowing the proposed amendment. Further, the respondent has also not filed any counter for the said averments made in C.M.P. 1796 of 1979, or advanced any effective argument opposing the said amendment.

2. The plaint allegations are that 'the temple' called Sri Deivavinayagar temple in Thalakulam village, Kanyakumari district (hereinafter called the temple) (is a private family religious institution having been found by the remote ancestors of the plaintiff, who endowed properties for the temple. The temple was intended exclusively for the spiritual benefit of the members of the plaintiff family, who are ascertained and ascertainable individuals. No outsider has ever contributed anything towards the foundation of the temple or endowed properties for the temple or participated in the management of the temple or administration of its properties. It has been further averred that as the members of the family grew larger for the purpose of effective management of the institution and its affairs it was thought desirable to devise ways and means and thus the practice of selecting a few among the members of the family who could spare time and energy with regard to the affairs of the institution came into vogue. The temple was never dedicated to the general public. The temple is surrounded by the residential houses of the members of the family and the properties as well and the existence of inscriptions engraved on stone blocks and pillars, and participation in the worship exclusively of members of the family are circumstances to proclaim the temple as the private one of the family. According to the plaintiff when the H.R. and C.E, department wanted the plaintiff to get a declaration about the status of the institution, O.A. No. 6 of 1966, was filed before the Deputy Commissioner, H.R. and C.E. Madurai, for an enquiry in this regard and the Deputy Commissioner held that the suit institution is not a private family temple, An appeal against the said order having failed, the present suit has been instituted.

3. In the written statement the defendant contended that the suit temple is a public religious institution coming within the purview of the Act. The origin of the temple is not known and there is no deed of dedication for the foundation of the temple. The plaintiff's claim that the temple is a private family religious institution founded by remote ancestors and they had endowed properties for the institution, is not supported by any piece of reliable evidence. According to the defendant, the location of the temple is in a place easily accessible to the public the structure of the temple; the conduct of two time poojas daily by a paid archaka, periodical festivals like Adi Nerai, Vinayaga Chathurthi etc. offering of the general Hindu public being freely accepted, and participation of the general Hindu public and their worship in the temple, clearly point to the temple as a public religious institution. The orders of the Deputy Commissioner and the Commissioner have been passed after full consideration of the materials and evidence made avail