Govinda Menon, J. - (1.) MY learned brother has dealt with the historical aspect and mythological tradition of the institution in question and I do not propose to traverse the same over again for in my view, how the temple came into existence cannot be ascertained with any degree of exactitude from the mass of material most of which is mythological and is not founded on concrete facts which can be tested in the light of actuality. What we have to ascertain is whether the famous Sri Krishna temple at Udipi which is held in great reverence and sanctity not only by the followers of Madhvachariar throughout the whole of India but by all the pious Hindus, can be held to be a public temple as defined in Sub -section (2) of Section 2 of Act V of 1947. Exhibit B -6 is the plan of Shiyali village which shows that the temple building of Sri Krishna is on the west of Madhva Sarovar, the holy tank, and is approached by a gate from the southern side. Divided by a road from Sri Krishna temple are the temples of Sri Chandramouleswara and Sri Anantheswara which are surrounded on all sides by streets. The Astha mutts are scattered all round these temples, the Sirur mutt being the nearest to the Sri Krishna temple. What is urged before us is that the idol of Sri Krishna is installed in a mutt, the management of which is being carried on by each of the Swamijis of the Ashta mutts for two years in rotation within a period of sixteen years and as such the institution in which the idol of Sri Krishna has been consecrated by Madhvachariar must be held to be the central mutt just like the other eight mutts and that in every matter it should be deemed to be of the same pattern as the other mutts. If that is so, in view of the recent decisions of the Supreme Court in The Commissioner of Hindu Religious Endowments, Madras v. Sirur Mutt, (1954) 1 M.L.J. 596 :, (1954) S.C.J. 335 (S.C.), the temple in question will be a denominational institution which cannot be called a public temple. In the District Manual of South Kanara by Mr. Sturrock of the Indian Civil Service we find that this institution is described as a temple of hoary antiquity held in great reverence not only by the disciples of Madhvachariar but also by all the Hindus. In the Judgment in The Commissioner of Hindu Religious Endowments, Madras v. Sirur Mutt, (1954) 1 M.L.J. 596 :, (1954) S.C.J. 335 (S.C.), Mukherjea, J., describes this temple as an ancient religious institution known as Shri Krishna Devara Mutt established by Madhvacharya which is supposed to contain an image of God Sri Krishna originally made by Arjuna and miraculously obtained from a vessel wrecked at the coast of Tuluva. His Lordship later on states how the management of this mutt is being carried on by the superiors of the other eight mutts by turns; the custom is that the Swamiji of each of these eight mutts presides over Sri Krishna Mutt in turn for a period of two years in every sixteen years, the appointed time of change in the headship of the Sri Krishna Mutt is called Pariyayam and the Swamiji who takes over the management of the affairs of the mutt is called the Pariyaya Swami for the time being.
(2.) THE contention put forward on behalf of the appellants is that there is no distinction between the abode of Lord Krishna which is the subject -matter of the present dispute and each of the other Ashta mutts in regard to their nature and with respect to the application of the Hindu Religious Endowments Act. If this institution partakes of the same legal characteristics as those of the other mutts, then according to the arguments of learned Counsel for the Appellants the Madras Temple Entry Authorisation Act cannot be made applicable. The question, therefore, is whether the institution is a mutt or a temple. One may concede that the temple is situated within the precincts of the mutt but that circumstance would not detract from the public character of the temple if it is established that there is unfettered public religious worship in the temple. It may be that the other buildings around the temple are used as residences of the Swamijis and for various other purposes connected with the Pariyayam ceremony and they cannot be termed public institutions; but which portions appertain to the temple and which to the mutt cannot be ascertained with any degree of precision in this litigation. All that we are called upon to decide is whether the building in which the image of Sri Krishna is installed and worshipped is one which is a public temple or not, and if it is a temple as defined in the Madras Temple Entry Authorisation Act of 1947, the decision of the lower Court is correct.
(3.) FOR that purpose it is necessary to refer to the provisions of the Madras Act V of 1947 and its amendment by Act XIII of 1949. The Preamble to the Act V of 1947 is as follows: An Act to authorise entry into Hindu temples in the Province of Madras and the offer of worship therein by certain classes of Hindus who by custom or usage are excluded from such entry and worship. Whereas it is the policy of the Provincial Government to remove the disabilities imposed by custom or usage on certain classes of Hindus against entry into Hindu temples in the province which are open to the general Hindu public and whereas the Provincial Government are satisfied from the rapidity with which under pressure of Hindu public opinion a number of temples have been thrown open to those classes of Hindus in recent months, under the provisions of the Madras Temple Entry Authorisation and Indemnity Act, 1939, that the time has now arrived for throwing open to such classes of Hindus all the temples in the province which are open to the general Hindu public. And whereas the Provincial Government consider that the provisions of the said Act are inadequate for the early and complete implementation of the Policy of the Provincial Government aforesaid it is hereby enacted as follows: The Preamble to the Madras Act V of 1947 as amended by the Madras Act XIII of 1949 is as follows: An Act to authorise entry into Hindu temples in the Province of Madras and the offer of worship therein by all classes of Hindus. Whereas it is the policy of the Provincial Government to remove the disabilities imposed on certain classes of Hindus against the entry into Hindu temples in the province and whereas the Provincial Government are satisfied from the rapidity with which under pressure of Hindu public opinion, a number of temples have been thrown open to certain classes of Hindus in recent months, under the provisions of the Madras Temple Entry Authorisation and Indemnity Act, 1939, that the time has now arrived for throwing open to all classes of Hindus every Hindu temple in the province, and whereas the Provincial Government consider that the provisions of the said Act are inadequate for the early and complete implementation of the policy of the Provincial Government aforesaid it is hereby enacted as follows: This would show that the Act as originally passed provided for the entry of all Hindus into the temples in the State which are open only to the Hindus in general and by the amending Act XIII of 1949 it was applicable even to institutions belonging to certain sections of classes of Hindus which are also temples as defined in subsection (1) of Section 2 of Act V of 1947 and its amendment by the Madras Act XIII of 1949 makes it clear. In Act V of 1947 temple is defined as follows: Temple means a place, by whatever name known which is dedicated to, or for the benefit of, or used as of right by, the Hindu community in general as a place of public religious worship and includes subsidiary shrines and mandapams attached to such place; by the Amending Act XIII of 1949 this Sub -section (2) was changed into Sub -section (1) of Section 2 and the amended definition of the word "temple" runs as follows: Temple means a place by whatever name known which is dedicated to or for the benefit of or used as of right by the Hindu community or any section thereof as a place of public religious worship and includes subsidiary shrines and mandapams attached to such place. So denominational temples and temples belonging to sections of the Hindu community are brought within the ambit of the definition by the amendment. Consequent amendments to the other sections had necessarily to follow and by Section 4 of the Act power is given to the trustee to make regulations" for the maintenance of order and decorum in the temple and the due observance of the religious rites and ceremonies performed in the temple but such regulations shall not discriminate in any way against any Hindu on the ground that he belongs to a particular caste or sect. Section 7 prescribes penalties against whoever prevents a Hindu from exercising any right conferred by the said Act. Therefore even if the temple of Sri Krishna is a denominational one dedicated to, or for the benefit of, or is used as of right by a class among Hindu community or any section thereof as a place of public religious worship then it would come within the definition of "temple". On account of the amendment the dispute whether the temple is used as of right by the Hindu community in general or by a section thereof has become unimportant because even if the institution is a denominational one dedicated for use as of right by the Shivalli sect of followers of Madhvachariar still it is an institution which comes within the purview of the Act and therefore cannot be said to be a private institution.;