There can be no presumption that it is public or private temple.

Sadasivam, J.- Appellants are defendants 1 to 3 in O.S.No. 20 of 1961, on the file of the Subordinate Judge’s Court, Nagercoil, and their appeal is against the decree and judgment in the suit allowing the claim of the first respondent-plaintiff ordering their removal from the management of the suit trust, directing them to account for the trust funds in respect of their half share and ordering a scheme to be framed for the suit trust. The first respondent-plaintiff Sankaranarayana Pillai died during the pendency of the appeal and his legal representatives have been added as parties.

Sankaranarayana Pillai filed the suit in the lower Court on the basis that the suit properties belonged to a private family trust and they were endowed in the name of the family idol called Chona Mariyadumperumal Marthanda Vinayakar by one Chona Mariyadumperumal who was the original ancestor of the family in which the plaintiff and defendants 1 to 3 are members. The other defendants are the alienees from defendants 1 to 3. The case of the appellants in the lower Court was that the suit properties were "family properties and that they merely stood in the name of Chona Mariyadumperumal benami for the family. According to them, the properties were not dedicated to Chona Mariyadumperumal Marthanda Vinayakar or the temple. The learned Subordinate Judge has found on a consideration of the entire evidence in the case that the suit properties are the private family trust properties and that the plaintiff and the first defendant were each entitled to joint rights in the management of the same.

Sri R. Ramamurti Iyer, appearing for the appellants, made no attempt to support the claim of the appellants put forward in the lower Court that the suit properties are the family properties of the appellants There is no document to evidence the dedication of the suit properties in favour of Mariyadumperumal Marthanda Vinayakar. But the pattas for the suit properties are in favour of the deity. In fact, the appellants have dealt with the suit properties as belonging to Marthanda Vinayakar. There is now no dispute either about the fact that the suit properties were endowed by Chona Mariyadumperumal, the ancestor of the appellants and the deceased plaintiff or the fact that it is the appellants and the deceased plaintiff who were in joint management of the suit properties as trust properties.

The only contention urged by Sri R. Ramamurthi Iyer on behalf of the appellants is that the suit temple is a public temple and that the suit trust is therefore a public trust. He relied on the plea raised in paragraph 22 of the written statement of the first defendant which reads as follows:-

"The trust alleged if any is having the characteristic of a public trust as, they relate to a temple in a public place where all Hindus have the right to worship. The suit is also not maintainable and is barred by section 92 of the Civil Procedure Code and the provisions of the Hindu Religious Endowments Act,"

He commented on the fact that the learned Subordinate Judge has dealt with this plea in a summary manner in dealing with issue 14 in paragraph 30 of his judgment. But as rightly urged by the learned Advocate for the contesting respondents, there was no plea in the lower Court that the suit temple is a public temple and the contest in the lower Court was only about the claim of the appellants that the suit properties belonged to their family as against the claim of the first respondent-plaintiff that the suit properties were private family trust properties.

In paragraph 3 of the plaint it is clearly alleged that the plaint properties belong to a private family trust and that they were endowed in the name of the family idol called Chona Mariyadumperumal Marthanda Vinayakar. There is no plea in the written statements of any of the defendants that the suit temple is a public temple. We have already referred to the plea of the first defendant in his written statement that though the properties sta

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