(1.)THIS appeal is by the plaintiff, who is the Karnavan of a Nambudiri Illom, called Venmani Illom, and arises in a suit to set aside a decision of the respondent, the Cochin Devaswom Board, that Sree Bhoothapuram koottale temple or Kottale temple, or the temple for short, situated in Paralam village in Trichur Taluk, is an institution as defined in S. 61 sub-section (6)of the Travancore-Cochin Hindu Religious Institutions Act, 1950. According to the plaintiff, this temple is a Keezhedom or a subsidiary shrine of Sree bhoothapuram temple in Thekkumbhagom Village, both of which are private temples and are owned by his Illom. One Govinda Kaimal was the karyastha of the temple under the Illom till his death in the year 1124. After his death there were disputes and civil and criminal cases between the Illom and Govinda Kaimal's relations and feelings were estranged between them. While so, it was alleged, that at the instance of Kunju Kaimal and Raman Nair who are the sons-in-law of govinda Kaimal, a petition, Ext. D1 dated the 17th August, 1951, was submitted to the respondent for taking over the management of the temple and properties. The respondent contended that the temple did not belong to the appellant's illom, but was founded by the Koottale tarwad, that the Illom was at best only a trustee of the temple, that it has been used as a place of public worship as of right by the Hindus of the locality and that the appellant is not entitled to any relief. The District Judge, Trichur accepted the contentions of the respondent and dismissed the suit.
(2.)THE question for determination is whether the temple is an institution as defined in the Act. THE relevant part of that definition is as follows: "'institution'shall mean a Hindu Religious institution. . . . dedicated to or for the benefit of or used as of right by the hindu community or any section thereof and shall include (a) every Hindu temple or shrine so dedicated or used as of right by the Hindu community or any section thereof as a place of religious worship and all property belonging to or given or endowed for the benefit or support of such temple or shrine or for the purpose of any service or charity". THE points to consider are, whether the temple was owned by the appellant's Illom, and whether it was dedicated to or used as of right by the Hindu community or any section thereof as a place of religious worship. Differing from the District Judge, I find little difficulty in coming to the conclusion on the documentary evidence, that the temple was owned by the appellant's Illom. Ext. P. 41 is a patta kychit in favour of the Illom which described the properties as. THE Judge below was not right in discarding this description, merely on account of the endorsement of the stamp vendor. Ext. P. 42 and Ext. P. 26 are counterparts of demises of the years 1077 and 1078 containing a similar description. THEse documents, especially Ext. P. 41 the most ancient of them, may be considered to possess great evidentiary value. Ext. P. 21 is the udampady for management of the temple which the appellant's illom gave to Govinda Kaimal on the 27th Meenom,1119, describing the temple as exts. P. 2 to P. 12 & Exts. P. 24. P. 25 and P. 27 are documents of the year 1120 which also contain a similar description of the temple and its properties. Ext. P. 22 is a receipt executed by the heirs of Govinda Kaimal, that is the wife and the sister-in-law of D. W. 3 in favour of the appellant's Illom under which they give up all documents etc. in their possession to the Illom Ext. P. 23 is an award of the year 1123 in the Illom wherein the properties in schedule b were referred to as belonging to the temple owned the Illom. Ext. P. 18 is the account book maintained by Govinda Kaimal for the temple under the heading, that the temple belongs to the illom and Ext. P. 19 and Ext. P. 20 are continuation of such accounts maintained by his son-in-law. THE Judge discarded exts. P. 2 to P. 25 and Ext. P. 27 as of comparatively recent dates, and Exts. P. 26, P, 41 and P. 42 as not of much importance in view of the endorsement on the stamped cadjan in Ext. P. 41. In my opinion, these documents, especially those of 1054,1077 and 1078 point only to one conclusion, viz. , that the temple was owned and not merely managed by the Illom. THE Illom is nowhere mentioned as an uraller or trustee; there is no other urallen also, and no document pointing to a contrary inference. THE judge has definitely rejected the respondent's case that Koottale tarwad founded this temple, and has also found, following deoki Nanden v. Murlidhar (A. . I. R. 1957 S. C. 133) and Vasudevan Nambudiripad v. Sirkar (35 Cochin 547) that dedication of property can well be to a private temple. THE case set out in Ext. Dl that the temple was founded by the ancestors of the signatories to that petition and that the appellant's Illom was appointed, as the trustee thereof, was not sought to be proved even by D. W. 1 or the other witnesses for the respondent who were parties to Ext. D1. On the basis of these documents, especially those of the years 1054, 1077 and 1078, in which the ownership of the temple was asserted by the Illom, I do not think it proper to hold, as the judge has done, that the origin of the temple was lost in antiquity, when after all, the issue is not how or when the temple was constructed, but is as to its ownership.
The oral evidence may be examined. P. W. 1 the appellant has sworn that the temple has no Sreekovil and no roof over the idol, that Pooja was being conducted only once a day, that the Santhi brings the nivedyam with him when he attends, that no offering is being made by any one and that a building was put nearby only twelve years ago. P. W. 2 was doing the kazhakam in the temple some years ago and now his sister, the wife of P. W. 4, has been doing it. He did not do Kazhakam regularly and on occasions used to send his children, & he has not seen any worshipper at the temple. P. W. 3 the Santhi of Mulavanulli Illom lived a mile and a half away from the temple and he said that no Vazhivadu was being received in the temple and no worshippers attend as such. One of the members of his Illom, if he has not the convenience, used to perform Santhi. He himself was a driver at Chittur Mana, 3 miles away. He said that there is no Vazhivadu, or offerings, and used to take nivedyam from home. The Santhi used to lock the gate and keep the key with him. P. W. 4 also gave evidence likewise. D. W. 1 who was the second signatory to ext. D1 was Kunchu Kaimal's brother-in-law and an accused in C. C. 895 of 1951 filed by the appellant's Illom against Govinda Kaimal's heris. He said that the temple had no Thidappally (kitchen) after it went into ruins before the year 1094, and that Nivedyam used to be cooked in the Paramba on heaps of stones. D. W. 2 said to be the lessee of some of the temple properties, and his wife, were both signatories to Ext. D. 1. He used to go to the temple once a month, and said that the Santhi used to bring Nivedyam from home and that this practice is continuing even now. He was a witness in 0. C. 895 of 1951. D. W. 3 also an accused in C. C. 895 of 1951, and a defendant in O. S. 362 of 1963 filed by the illom, developed a new case when he said that after the year 1120, Nivedyam used to be prepared in that building and not in the open as before, thereby contradicting D. W. 2. He is also a son-in-law of Govinda Kaimal. Kunju Kaimal was a signatory in Ext. Dl D. W. 4 was not considered to be a material witness by the judge as he lived near the temple 16 years ago and had removed his residence since. It is these witness ess who have sworn, that some of the villagers used to worship at the temple or to offer Vazhivadu. They are in some way or other concerned in the litigations and disputes which arose after the death of Govinda Kaimal and it is on their evidence that the theory of dedication or of user as of right falls to be decided.
The Privy Council said that though in the greater part of the Madras State, private temples are practically unknown, "the prevailing impression in Malabar would seem to have been that these Nair temples were private", in Mundacheri Koman v. Thachangat Puthan Vittil achuthan Nair (A. I. R. 1934 P. C. 280); in my view the position is not different in the case of Nambudiri temples, if I may use that term In satyanarayana Avadhani v. Hindu Religious Endowments Board, Madras (A. I. R. 1957 Andhra Pradesh 824) too, this distinguishing feature in the case of malabar temples was recognised. This applies to the rest of the temples in Kerala. The District Judge also came to the conclusion, that there is no presumption, that a Malabar temple is a public temple. The oral evidence discussed above has given me the impression that the temple is only a temple in name. There is nothing in the oral evidence adduced by the respondent to shake the inference that properly arises on the documentary evidence discussed above, that the temple was owned by the appellant's Illom.
(3.)THE evidence adduced does not point to any dedication of the temple by the appellant's Illom for the benefit of the public; as remarked, even dedication of properties to a temple is not inconsistent with its private ownership. As for user by the worshipping public, I consider it unsafe to act upon the testimony of D. Ws. 1 to 3 alone, as they are connected with the litigations that ensued after Govinda Kaimal's death. Granting that worshippers have attended or that they used to attend the temple and were not turned out by the Illom, no presumption can be made that such worship or user was as of right, once the temple is proved to belong to the Illom. It is where such proof is wanting that worshipping without let or hindrance by the members of the public has been held to raise a presumption, that such worship or user was as of right. See Venkataramana Devaru v. State of Mysore (A. I. R. 1958 S. C. 255), V. Mahadeva Gurukkal v. Commissioner for the Board of Hindu Religious endowments, Madras (A. I. R. 1956 Madras 522) and Narayan Bhagwantrao Gosayi balajiwala v. Gopal Vinayak Gosayi (A. I. R. 1960 S. C. 100 ). THEse cases, as also Vathyanarayana Avadham v. Hindu Religious Endowments Board, Madras (A. I. R. 1957 Andhra Pradesh 824), are authorities for the view, that once the private character of the temple is proved, user however long is not presumed to be as of right. This has been explained by the Privy Council in Babu Rhagwan Din, v. Gir Har Varoop (1940 (1) M. L. J. 1) in the following words: "in these circumstances it is not enough, in their lordships' opinion, to deprive the family of their private property to show that Hindus willing to worship have never been turned away or even that the deity has acquired considerable popularity among Hindus of the locality or among persons resorting to the annual mela. Worshippers are naturally welcome at a temple because of the offerings they bring and the repute they give to the idol; they do not have to be turned away on pain of forfeiture of the temple property as having become property belonging to a public trust. Facts and circumstances, in order to be accepted as sufficient proof of dedication of a temple as a public temple, must be considered in their historical setting in such a case as the present; and dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference if made from the fact of user by the public is hazarduous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away; and as worship generally implies offerings of some kind it is not to be expected that the managers of private temple should in all circumstances desire to discourage popularity". In Mundacheri Koman v. Thachangat Puthen Veettil Achuthan nair (A. I. R. 1934. P. G. 280) after finding that the temple was a public temple, the Privy Council said: "had there been any sufficient reason for holding that these temples and their endowment were originally dedicated for the tarwad, and so were private trusts, their Lordships would have been slow to hold that the admission of the public in later times possibly owing to altered conditions, would affect the private character of the trusts. " THE decision of a division bench of this Court in A. S. 1008 of 1959 was based on the particular facts and circumstances proved in that case.
If the temple is found to belong to the appellant's illom, the location of the temple at some distance away, nearly 30 miles from the seat of the Illom, the existence of a lane formerly and a public road now, by the side of the temple compound, the presentation according to D. W. 1, even if true, of a deepasthambham to the temple by a stranger tarwad, these and other considerations however relevant and useful in other cases, are by themselves insufficient to deprive the Illom of its ownership of the temple.