Temple declared as private temple.

The 1st defendant is the appellant.

2. The plaintiffs case is that his father Suppanna Gounder had installed the idol of Vinayagar for his exclusive worship and for the benefit of this family members in Vilaankurichi Village. The deity was called Ishata Siddi Vinayagar. The idol was installed and a small temple was built by the said Subbanna Gounder out of his own funds. The public have nothing to do with the temple. They have had no occasion to participate in the management or worship. There are no indications to show that it is a public temple. On 18.5.1959, the said Suppanna Gounder executed a settlement deed settling some properties for the upkeep of the temple. Subsequently, the settlement deed was revoked by a registered document dated 27.7.1967. The H.R. & C.E. Department began to appoint fit persons to take charge of the temple and the 2nd defendant (2nd respondent herein) was appointed as the fit person. After Subbanna Gounders death it was the plaintiff who was managing the suit temple and therefore, he filed O.A.No.168 of 1976 under Sec.63(a) of the H.R. & C.E. Act for a declaration that the suit temple is not a religious institution as defined under the Act. The Deputy Commissioner dismissed the application on 5.12.1967 on the ground that the temple is not a private one. Therefore, an appeal was filed to the Commissioner of H.R. & C.E. Department in A.P.No.106 of 1978. The appeal was dismissed on 31.3.1980. The suit was therefore filed under Sec.70 of the H.R. & C.E. Act.

3. The appellant herein as 1st defendant filed a written statement denying the averments in the plaint. According to the written statement, the public was worshipping at this temple. The settlement deed having been cancelled, no relevance can be placed thereupon to establish the plaintiffs case. The temple has all the characteristics of the public temple for e.g., Vimaanam, Balipeetam, etc. ‘Prasadam’ has been distributed to the children during festivals. The temple is not a private temple. The suit should be dismissed.

4. The learned I Additional Subordinate Judge, Coimbatore framed six issues, four documents were marked on the side of the plaintiff and two witnesses were examined. No document was marked on the side of the defendants, one witness were examined on the side of the defendants and the Commissioners report Exs.C-1 and C-2 were also marked before the Court. The learned Judge on a consideration of the oral and documentary evidence, decreed the suit, holding that the suit temple is a private one. Against that, the present appeal has been filed. The question that arises for consideration is, whether the suit temple is a private temple or whether it is a religious institution as defined in the H.R. & C.E. Act.

5. The learned Additional Government Pleader for the appellant submitted that the Court below had failed to take into account, the features that are existing in the suit temple which would go to show that it was a public temple. He submitted that the public has been worshipping at this temple as of right which is an indicator to show the public nature of the temple. It was also submitted on behalf of the appellant that the settlement deed Ex.A-1 under which properties were dedicated for the upkeep of the temple was subsequently cancelled by Ex.A-2 which would show that the suit temple was no longer a private temple. The existence of the Vimaanam and the Balipeetam were also sure signs of the temple being a public temple. According to the learned counsel, worship is done only by the public which would no be the case if it was a private temple and the intention of the respondent was only to grab the temple and misuse the Hundi collection etc. Two decisions were relied on by the learned counsel: Ramaswamy Naidu v. Commissioner, H.R. & C.E. Ramaswamy Naidu v. Commissioner, H.R. & C.E. Ramaswamy Naidu v. Commissioner, H.R. & C.E. (1974)2 MLJ. 133 and V.Mahadeva v. Commissioner, H.R. & C.E. V.Mahadeva v. Commissioner, H.R. & C.E.