Presence of worshippers on certain occasions not conclusive for declaration of temple as public temple.

1. Defendants 1 to 3 in O.S. 63/80 on the file of Subordinate Judge, Namkkal are the appellants in the above appeal.

2. The first respondent herein (since deceased) has filed the said suit, 1 to declare that the suit temple is not a public temple; 2 holding that the plaintiff is the hereditary trustee of the suit temple; 3 setting aside the order of the fourth defendant dt. 10.3.75 in A.P.6/75 by which the order of the Deputy Commissioner, H.R. & C.E. Coimbatore dt. 20.9.73 in O.A.63/72 and the order of the Assistant Commissioner, Salem, dt. 28.4.72 appointing the defendants 1 to 3 as the non-hereditary trustees to the suit temple have been wrongly confirmed, and 4 directing the defendants to pay the plaintiff the costs of the suit.

3. The case of the plaintiff is briefly stated hereunder: —

According to him the temple by name Vallaba Vinayakar Koil in Kuchipalayam, Pandamangalam Village, Namakkal Taluk Salem District is a private temple, belonging to the family of the plaintiff built in the year 1638 by the ancestor Munia Kandar son of Sellandi Kandar on his own lands. The temple and the Nandavanam immediately adjoining on the north and the lands given to the temple are situated in S. No. 225/1 and also in Survey No. 258 and also in Survey No. 240/2. The temple and Nandavanam are in Survey No. 225/1. The inscriptions on the stones of the temple also reveal the date of the temple and the name of Munia Kandar. It is contended that the temple has all along been managed by the plaintiffs family hereditarily. From time to time the members of the plaintiffs family in a meeting assembled appointed one of them as manager for managing the affairs of the temple and another is treasurer. Thus on 6, 11, 37 one Pattakkar Kandar was appointed as Manager and one Kenemari Sellandi Kandar as Treasurer and on 2.3.61 the then members of the plaintifs family appointed the same person as manager and one Nallathambi Kandar as Treasurer. Both the appointments were under registered documents. The expenses of the worship of the temple and of the repairs etc, to the temple were exclusively met only by the plaintiffs family and at no time did any member of the public contribute any amount towards such expenses. The public as such has no right of worship at the temple. Nor did any member of the public meet any part of the expenses or give any fund or property for the maintenance of the temple. The temple has all along been under the exclusive control and management of the plaintiffs family and nobody else has any right to interfere with the management and none else had any right to interfere with the management. It is further contended that at a meeting dt. 11.11.69 the present plaintiff was appointed as manager to manage the temple and one Katha Kandar was appointed as treasurer. The managers so appointed from time to time are hereditary trustees within the meaning of section 6(2)(11) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, (hereinafter referred to as ‘the Act’). While such is the position the Assistant Commissioner, H.R. & C.E., Salem by his order dt. 28.4.72 appointed the defendants 1 to 3 herein as the non-hereditary trustees of the temple and in the circumstances , the plaintiff was obliged to file O.A.63/73 on the file of the Deputy Commissioner, Coimbatore for a declaration that the suit institution is not a temple within meaning of the Act. By an order dt. 20.9.73 the Deputy Commissioner, dismissed the said application. Aggrieved by the said order, the plaintiff filed an appeal to the Commissioner H.R. & C.E. Madras, the fourth defendant in Appeal petition 6/75 dt. 10.3.75. The fourth defendant has also dismissed the said Appeal on 8.4.75 confirming the order of the Deputy Commissioner which insisted the plaintiff to file the present suit to set aside the abovesaid orders. It is also contended that the suit temple has been all along in exclusive possession and maintenance of the plaintiff and his ancestor