Tests of public and private temples.

These appeals were heard together, because the points of law that arise in them are substantially similar. They are directed against the judgments and decrees of the learned Subordinate Judge of Pudukottai in O.S. No. 7 of 1960 and O.S. No. 48 of 1959 respectively. The plaintiff is the appellant.

Appeal No. 272 of 1961.-In the suit O.S. No. 7 of 1960 to which this appeal relates the managing trustee of a Siva temple at Nachandupatti in the former Pudu- kottai State is the plaintiff and his prayer is to set aside the order of the respondent, the Commissioner, Hindu Religious and Charitable Endowments, Madras, declaring the suit temple to be a public temple. There is also a prayer in the alternative for declaring the karaikars of seven karats as the hereditary trustees of the suit temple. The contentions of the plaintiff were briefly the following: Certain Nattukottai Chettiar families, 50 in number, who were saivaites by faith, founded the suit temple and brought a Sivalingam from Chidambaram and installed it therein. Subsequently, they renovated the temple at great cost. The temple is the exclusive private temple of these Nattukottai Chettiar families residing in Nachandupatti, and the members of other communities do not worship in the temple as of right. They could worship only with the consent of the aforesaid families. The said families belong to 5 out of 9 temple clans into which the Nattukottai Chettiar community are divided. The defendant Board denied the allegations. It contended that in any event, Nattukottai Chettiars of Nachandupatti formed a section of the Hindu community, and therefore a temple founded for their benefit, would fall within the definition of “ public temple” in section 6 (17) of Act (XIX of 1951) (hereinafter called the Act) which corresponds to section 6 (20) of Act (XXII of 1959).

The learned Subordinate Judge found that there was no proper evidence to show that the 50 families of Nattukottai Chettiars founded the suit temple. The evidence before the learned Subordinate Judge showed that not merely Nattukottai Chettiars belonging to 5 out of the 9 temple clans residing in Nachandupatti had a right to worship, but Nattukottai Chettiars of the aforesaid 5 temple clans even from outside the villlage could worship in the temple as of right. That would suffice, in the view of the learned Subordinate Judge, to support the conclusion that the temple is a public one. There was also oral evidence that members of the Brahmin community also were allowed to worship in the temple without any let or hindrance, and according to the lower Court they would go against the plaintiff’s contention about the temple being private. The learned Subordinate Judge thereafter found that the temple was a public temple. He also rejected the contention put forward by the plaintiff that the Nattukottai Chettiars of Nachandupatti formed a religious denomination and as such they could invoke Article 26 of the Constitution in their favour. The suit was dismissed with costs. The plaintiff appeals from the above decision.

The point for determination in this appeal is whether the suit temple is a private one as claimed by the plaintiff.

The principles for decision in such cases have been well established by several decisions of this Court as well as of the Surpreme Court. In the first place, unlike the temples in Malabar and Kerala, there is a presumption in the case of temples in South India that they are public, and the onus is on the party, who asserts their private nature, to prove it -Vide Ramaswami Jadaya Goundar v. Commissioner, H.R. and C.E., Madras1. This principle has been laid down many years ago in the Privy Council decision in Koman Nair v. Achuthan Nair2, and has been followed thereafter in the decisions of this High Court. Next, a temple dedicated for the user of a particular section of the Hindu community can be a public temple, as defined in the Hindu Religious and Charitable Endowments Act (section 6 (17)