Decided on August 25,1953



Venkatarama Aiyar, J. - (1.) This is an appeal against the order of Krishna-swami Nayudu J. in O. P. No. 203 of 1949. The point for decision is whether the Sri Veda Vinayakar alias Sarvasidhi Vinayakar temple at No. 187 China Bazar Road, Madras, is a temple as defined in Section 9 (12) of the Madras Hindu Religious Endowments Act. The Hindu Religipus Endowments Board held an enquiry under Section 84 (1) (a) of the Act and passed an order on 27th December 1948 holding that the temple in question was a public temple falling within the scope of Section 9 (12) of the Act. Thereupon the respondent filed O. P. No. 203 of 1949 on the file of the Original Side of the Court for setting aside that order on the ground that the temple was a private one. Krishna-swami Nayudu J. agreed with the contention and set aside the order of the Board. It is against that order that the present appeal has been preferred by the Board.
(2.) Mr. Ramaswami Reddi, the learned advocate for the appellant, has taken us through the entire evidence; and after hearing him fully we are satisfied that the learned Judge has come to the correct conclusion on the facts. The broad features on which the appellant relies are: (1) that when this temple was built in 1919 Kumbhabhishekam was performed on a grand scale; (2) the respondent also made utsavamurties and built chap rams, and the deities were also taken in procession on some special occasions; (3) or a Gurukkal has been engaged to perform the puja regularly; and (4) the temple has got a gopuram, and other features which are usually found in a public temple. It must be noted that there is no deed of dedication and as has been observed by the Privy Council it is essential that it should be clearly proved that the institution was dedicated to the public. In the case of an old temple, such dedication might be presumed from long user by the public as of right. But In this case the temple was built only in the year 1919, and in the absence of a deed of dedication it is difficult to hold that there has been dedication to the public. It is true that the facts that there is an utsava-idol and there are processions are generally indicative of the fact that it is a public temple. But then no property has been dedicated for the upkeep of the temple. The worship is maintained and the expenses are met from out of the private funds of the respondent. In the absence of any property being dedicated for the maintenance of worship in the temple, it is difficult to hold that the temple | has been dedicated to the public.
(3.) Mr. Ramaswami Reddi relied on the observations of Varadachariar J. in -' Bhava-nam Nagireddi v. Commissioners for Hindu Religious Endowments, Madras', AIR 1937 Mad 973 (A) that the fact of the utsava deity being taken in procession is strong evidence that the institution is a public one. But then it was found in that case that there was a trust deed dedicating property for the use of the temple and contemplating 'kainkaryams' in the temple. Taken along with that the fact of the deity being taken in procession that was held to be "confirmatory of the idea that the founders were anxious to give all facilities to the public to worship the deity." On behalf of the appellant, reliance was also placed on the fact that members of the public were worshipping in the temple. But as observed by the Privy Council in -- 'Mundachari Koman Nair v. Achuthan Nair', AIR 1934 PC 230 (B), it is not in consonance with the Hindu sentiments to exclude worshippers from a temple even when it is private.;

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