The Judgment of the Court was delivered by

Venkatarama Aiyar, J.-

The point for decision in this appeal is whether an institution known as the Apparswami Pagoda situated in Mylapore is a temple as defined in section 9(12) of the Madras Hindu Religious Endowments Act. The appellant is the hereditary trustee of the institution. His contention is that it is only a Samadhi or tomb of one Apparswami and not a temple. The Hindu Religious Endowments Board held an inquiry under section 84(1) and passed an order on 1st April, 1947, that it is a temple as defined in the Act. The appellant applied in O.P.No.200 of 1947 on the Original Side of this Court to set aside that order. The matter was heard by Krishnaswamy Nayudu, J.,and after an elaborate inquiry, he agreed with the Board that the institution was a temple as defined in the Act and dismissed the petition. This appeal is presented against this judgment.

The case for the appellant is that there was a person called Apparswami belonging to the Vanibar Community, that he was buried in this place, that one Chidambaraswami built about 1852 a tomb for him, that Guru Pooja is being regularly performed for him and that it is a Samadhi and not a temple.

It is common ground that it was Chidambaraswami who founded this institution. There is abundant evidence that this institution was regarded by him and. by the succeeding trustees and by the public as a temple. Ex.P.7, is a grant made by the Government in favour of Chidambaraswami on 7th August, 1860. Therein, Chidambaraswami is described as the founder of the Apparswami Pagoda and not of the Apparswami Samadhi. Ex.P.-1 is the will executed by Chidambaraswami on 4th May, 1871. He therein describes himself as the sole owner and dharmakarta of the Apparswami Pagoda and as residing in an out-house attached to the said Pagoda. He appointed two executors and vested in them all furniture belonging to the said Pagoda and properties in trust for the said Pagoda. They were directed to perform and celebrate all charities connected with the said Apparswami Pagoda including periodical poojas, utsavams and other celebrations according to Vedanta Sastra or Mamool. It may be noted that the Samadhi is not even referred to in this will. Two persons, Ratnavelu Mudaliar and Annamalai Mudaliar were appointed executors under the will. Probate of this will was obtained and Ratnavelu Mudaliar entered on his duties as trustee under this will. Annamalai Mudaliar having predeceased him, he continued as the sole trustee, and he was succeeded by his son Doraivelu Mudaliar. The present appellant is the younger brother of Doraivelu Mudaliar and has succeeded to the trusteeship after the lifetime of his brother.

In 1921, two persons, Krishnaswami Mudaliar and Narayanaswami Chetti styling themselves as worshippers of the Apparswami Koil filed a suit under section 92, Civil Procedure Code, S.C.No.480 of 1921, for removing Doraivelu Mudaliar from trusteeship on the ground that he had committed various breaches of trust. The suit was contended by the defendant. He did not claim that the institution was not a public temple which would have been a complete answer to the suit, if that were the fact. On the other hand, he admitted that the temple was constructed about the year 1855 to consecrate the memory of one Apparswami, a Saivite Saint, and that he had been acting as trustee under the will of Chidambaraswami and that he had not committed any breach of trust. The suit was heard by Kumaraswami Sastri, J. He held that Chidambaraswami had constructed the building out of funds raised by him and that the defendant was not guilty of any breach of trust. One charge made against the defendant was that he had denied access to the temple to members of the public and the learned Judge held, that there was no truth in this charge that the temple was being kept open at all reasonable hours for worship by the public and that the pooja was being regularly performed. Another charge levelled agains

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