Sadasiva Aiyar, J.
1. The material facts are set out in the judgment of my learned brothers. I agree entirely with their conclusions Some of the observations in the judgment of Seshagiri Aiyar, J., such as 'in the north, we find innumerable instances where endowments are made in the name of a reputed saint who worships the idol.' 'The personal sanctity of the founder seems to have had more influence in the north than in the south.' 'Most of the temples in the south do not owe their existence to Aryan influence but were built and endowed by the non Aryans, while the endowments in the north are mostly by Aryans', are observations based upon my learned brother's knowledge of and personal research into subjects to the study of which I have not been able to bestow as much time and industry as he. So far as I have been able to study some of the subjects referred to, my provisional conclusion is that Brabmana Hindus are not so pre dominantly Aryans in blood and non Brahmana Hindus are not so predominantly non-Aryans in blood as usually assumed, and I am not satisfied that 'Dravidian' is opposed to 'Aryan' and does not really represent the mingling of an earlier Aryan wave of immigration with sub races of the fourth or third root-race. A non-Brahmana or Dravidian does not at all, therefore, mean to my mind a pure non-Aryan and so far as southern India at least is concerned, a Dravidian does not connote a non-Aryan. These are, however, large controversial questions and 1 feel diffident to express decided opinions on them. Further, this is an important case and I thick it desirable that notwithstanding my entire agreement in Substance with the judgments of my learned brothers, 1 should say some thing in my own words though very little and nothing is added thereby to the reasons found in their judgment.
2. I attach much importance to the fact that a fixed stone idol was installed by Lakshmana Goundan. A fixed store idol (especially if it is of a comparatively large size) is never within my experience setup for mere family worship. Stones used in family worship are usually small moveable Bana Lingams or moveable Saligramams. So also where even moveable metal idols are in question, if they are of comparatively large size and are taken out in processions at regular and well known festivals, that fact is almost conclusive in my opinion (so far, at least, as southern India is concerned) that they and intended for public worship. Where the shrine in which the idols are installed takes the form of a temple larger than the size of an ordinary middle-class house and especially if the temple has Prakarams and Mantapams, it is almost incredible to me that (except in some few instances in Malabar) such a temple should be a private temple. Even in Malabar, I would hold that the presumption is that such a temple is a public temple till the contrary is proved. Idol worship itself was established in the beginning for communal purposes according to the Shastras. Bhuddistio influences had much to do with the development of idol worship in India--Bhuddistio temples arose in connection with Stupas over the relies of the Lord Buddha intended to be publicly worshipped. According to the Bhagavata Purana, worship of God in the Krita Yuga consisted in each one seeing the Lord in all living beings and worship consisted in mental reverence towards and friendly help to all the creations of the Lord. Seeing that in the Thretha Yuga, men began to get conceited and selfish and were not willing to see God in their neighbour whom they considered lower than themselves in mental equipment, idol worship was introduced as a very inferior mode of worship to that which prevailed in the Krita Yuga. (See the 14th Chapter, of the 7th Skanda of the Bhagavatam, especially Slokas 40 and 41). That worship of idols is intended for the masses is also clear from Slokas 22 to 27 of the 29th Chapter, 3rd Skanda, where idol worship is spoken of in depreciatory language by Kapila Muni, an Avatara of God, if it is accompanied by contempt towards any of God's creatures, though its usefulness for communal worship by ordinary people who cannot rise to higher forms of worship is acknowledged. (See the 11th Skanda, 2nd Chapter, Slokas 45 to 55, especially Sloka 47 as regards the comparative excellence of different modes of worship of the Lord, idolatry being the lowest form, though even those who have risen to higher : forms may follow it in order not to perturb the ignorant and those unfit for higher modes). As regards immoveable idols, there is no daily invocation (Avahanain) at the beginning of the Pooja or taking up of the deity into oneself (Visarjanam or Athmaaaropanam) at the end of the worship and the intention, therefore, in establishing an idol so firmly rooted in the ground is that it should be open for public worship at all convenient times. (See 11th Skandam, 27th Chapter, 12th and 13th Slokas.) Whenever n public mandiram or temple is created, a trustee for regulating public worship therein is always essential and if periodical festivals, Chatrams for pilgrims, processions in oar streets, etc., accompany the worship, it is impossible in my opinion to treat such a temple as a private temple. (See Slokas 48 to 53 of 27th Chapter, 11th Skanda). That the sites for car streets for the particular temple in dispute were purchased and secured between 1844 and 1848 during the lifetime of Lakshmana Goundan himself appears from Exhibits 19 series. (In the chronological index, these documents are described as executed in favour of the 1st defendant instead of, of the 1st defendant's grandfather owing to their names being the same).
3. Much was made on the respondents' side of the fact that the images of the founder and his wife are found in the outer Court of the temple. That they are found in a worshipping posture (and not in the posture of giving or blessing) is conclusive, in my opinion, to show that it was not intended that they were to be considered as deities to be worshipped in the temple, bat only devotee-founders whose images are merely honoured, and such images of founders are found in numerous public temples. A private temple is founded only by a rich worldly man who wishes his family to be blessed by the special family idol or idols established therein, so that the family may continue to be rich and powerful and always be continued in male lineal succession. Of course, I do not say that even worldly people could not establish or have not established public temples : bat if a man establishes a private temple (apart from mere worship in family Poojah rooms), it is a clear indication that the founder is a person whose special affection for his family has not expanded into universal brotherhood. The character of Lakshmana Goundan, the founder of this temple, was, however, so holy that contrary to the custom of his caste his body was buried as if he was a saintly Sanyasi. (Among almost all castes of Hindus, it is only when the astral or passional body has been so purified during the lifetime that it has lost all impurities that burial is allowed instead of cremation : in other words, it is saintly Sinyasis who have or are assumed to have so purified themselves that are buried.) A saintly Sanyasi does not do any act with a selfish motive or with a view to promote the special welfare of his blood relations. Having regard to these well-known Hindu ideas, I find it very difficult to hold that Lakshmana Goundan intended that the Palani god, whom he brought down to his village and successfully invoked in the immoveable stone-image which he established, should be a source of special pecuniary or even spiritual benefit to the members of his family alone or predominantly, and I have no reasonable doubt that he intended it for public worship.
4. The collection of offerings from devotees in Hundi pots placed either at the en-trance to the temple or at the entrances to special inner shrines is not only not indicative of the temple being a private temple but, in my opinion, is a strong proof that it is rather a public temple than a private temple. That Brahmin and Vaisya families (like that of plaintiffs' 1st witness) should treat an idol established by a non-Brahmin as their Kula Daivam, unless the founder was supposed to have by his unselfish holiness and unworldliness established the idol for the benefit of the world at large, is not easily conceivable by me.
5. I am quite sure that no orthodox Brahmin or Vaisya will treat the image of Gad in a temple as a Daivam to be worshipped by him (much less as his Kula Daivam) unless that image had been established according to tradition by either a Brahmana or by a person, whether Brahmana, non Brahmana, Aryan, non Aryan or even a Rakshasa, who had gone beyond and above caste and had become casteless in the higher sense (in which sense there was no caste among mankind in the Krta Yuga according to Shastras). Such castelessness results from supreme devotion, supreme Gaana or supreme selflessness. Many such public temples in southern India (including Palani itself) have been, by tradition, established by such non-Brahmana devotees who bad transcended caste and individual family and other attachments by their devotion or selflessness--I have no doubt that Lakshmana Goundan, the founder of the plaint temple, had obtained such saintly reputation before he established this temple that he was held to have risen above caste and self into castelessness and selflessness, and I have, therefore, no reasonable doubt that in founding this temple, he must have intended it as a public temple for the benefit of his fellow-Hindus without distinction of family connection or caste or sect.
6. Having regard to the corrupt customs and ideas which have been prevailing in the Hindu religion and society for several centuries past, the fact that Mattadhipathies, temple trustees and Ors. have not been called to account for their misdeeds and misappropriations by the general Hindu public who have possessed, for a long time, very little public spirit, cannot be given much weight in the consideration of the question whether a man who has been mismanaging an institution as a trustee to the knowledge of the public for a long time is liable to be called to account by the public. As a very learned writer has recently said: 'The error of decadent India has been to lay too much stress on the Law of Heredity in connection with national organisation, to assert loudly with false claims of degenerate pseudo religion and pseudo science that that law is the sole arbiter of psycho physical type, and to forget, to ignore and refuse recognition now altogether in theory to the equally important and equally operative Law of Spontaneous Variation'. (Instead of the expression 'Spontaneous Variation', I would use the expression 'the effects of Individual Tapas', which includes Educational culture and the effects of Environment, which includes the Forces of nature or Devas and the influence of the thoughts and actions of other human beings. The word 'spontaneous' conveys the notion of chance and absence of cause, whereas the Shastras inculcate the prevalence of Law throughout the universe. according to the Shastras, Tapas and Environment are of very great importance n Kali Yuga, while heredity should be given very much less weight now than in preceding Yugas). Thus the fondness for introducing the hereditary principle even in such matters as succession to the trusteeship, succession to priestly functions in a temple and even to the function of a cook or garland weaver in a temple has been due to this perverted and grossly exaggerated worship of the hereditary principle which is the bane of the modern caste system. No wonder, therefore, that the spiritual aroma of Lakshman Goundan, the founder, first trustee and first Poojari, is considered by many of the devotees of the idol in this temple to still hover round the 1st defendant (his grandson) and that the idea of calling him to account as the trustee of a public temple does not appeal to some of the witnesses on the side of the defence. But the facts which they speak to, as pointed out by the learned Officiating Chief Justice, by Mr. Justice Seshagiri Aiyar and by Mr. Justice Burn (whose clear summings up on this point I adopt, as I cannot hope to better them) fully establish, in my opinion, that the temple is a public one. Of course, if what I may be permitted to call a mechanical view of the evidence is taken, some weight might be given to the vague opinion-evidence of some of the defendants' witnesses that the temple is a private temple, but as Justice Sir Abdur Rahim points out, such evidence is of very little value when we are entitled ourselves to draw the proper inference from the proved facts. The fact, again, that the Poojari is allowed to be a non Brahmana by hereditary caste is of no significance as even in Palani itself, the Poojari was a non Brahmana till about a century ago and the Lord Kandaswami's devotees are mostly non-Brahmins and are not usually inclined to make distinctions between Brahmana and non-Brahmana worshippers. (One of the Devis of Lord Skanda was, by tradition, a maiden belonging to a very rude Hill-tribe )
7. I am aware that the learned Subordinate Judge (himself a Hindu) has taken a view favourable to the 1st defendant's contention. But it is clear that he was persuaded by one of the learned High Court Vakils, who appeared for the 1st defendant before him, to look to the English case of Bosanquet v. Heath. (1861) 3 L.T. 290 : 9 W.R. 35 for guidance in the decision of the question in dispute. (See paragraph 48 of the lower Court's judgment). That case related to a chapel dedicated to the purposes of divine worship according to the rites of the Church of England and its decision depended on the particular facts proved therein. The danger and inexpediency of quoting and relying on English and other foreign decisions by Indian Court, especially where a decision has to he arrived at on a question of fact, are pointed out by their Lordships of the Privy Council in two cases reported as Bhola Nath Nundi v. Midnapore Zemindary Co. 31 C.P 503 : 31 I.A. 75 : 8 C.W.N. 425 : 14 M.L.J. 152 : 8 Sar. P.C.J. 611 and Imambandi v. Mutsaddi 47 Ind. Cas. 513 : 45 I.A. 73 : 35 M.L.J. 422 : 16 A.L.J. 800 : 24 M.L.T. 330 : 28 C.L.J. 409 : 23 C.W.N 50 : 5 P.L.W. 276 : 20 Bom. L.R. 022 : 45 C.P 878 : (1919) M.W.N 91: 9 L.W. 508 The relevant passages have been extracted by me in my judgment in Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 37 M.L.I. 284 : 26 M.L.T. 223 : (1919) M.W.N. 640 : 42 M. 821 and I need not repeat them here.
8. In the result I would allow the appeal and remand the case for the framing of a proper scheme, the prayer in the plaint for the removal of the 1st defendant from the trusteeship and Poojari office being disallowed. In framing such a scheme, the lower Court should give weight to the fact that a large number of worshippers respect the 1st defendant (though it may be that their mental attitude cannot be defended on entirely rational or Shastraic grounds) as the descendant of the holy founder.
9. As regards costs, I would direct the costs of both sides to be met out of the temple funds.
Seshagiri Aiyar, J.
10. The three plaintiffs obtained the sanction of the Collector of Salem under Section 92 of the Code of Civil Procedure for instituting this suit. The two defendants are father and son. They raised the objection in limine that as the temple was not a trust created for public religious purposes, the suit was not maintainable. The Subordinate Judge upheld this plea and dismissed the suit. In this Court, on appeal from his decree the present Officiating Chief Justice was of opinion that the temple in suit was a public religious endowment. Mr. Justice Old field took a different view Hence this appeal.
11. Both the plaintiffs and the defendants are agreed that the temple came into existence about the year 1819 or 1820. Its traditional origin is thus stated : The grandfather of the lat defendant was a pious and religious man. He was in the habit of going to Palani every year to worship the deity Subramania, known also as Kandaswami. He carried on his shoulders a kavadi (usually, two baskets one hanging from each end of a pole which is carried on the shoulders of the devotee) with offerings to that famous shrine in the Madura District. After some years, he had a dream in which he was told that it was unnecessary for him to travel to Palani every year, and that the deity would manifest itself to him in his own place, if he would establish an idol there. Acting upon this revelation, the grandfather whose name was Lakshmana Goundan built a temple on land belonging to him and installed the deity in it. There is some dispute whether the place where the particular part of the temple stands was originally a portion of the dwelling house. The evidence to which our attention has been drawn shows that it was a vacant site adjoining the house, and that originally a small Mantapam was built for installing the idol. It was subsequently re built with granite stones. As an adjunct to the principal deity, the idol of Idumban, who according to Puranio story was the commander in chief of god Kandaswami, was installed in a room of the house in which Lakshmana Goundan and his people lived. Immediately after this installation, the family vacated the house and removed to a newly built house near by. The belief that the Palani god had come down to this place, the fame of the founder, his sanctity and a farther belief in his power of foretelling events through the god's favour attracted a large number of people to the shrine. In course of time, the temple was extended, A number of Mantapams were erected in close proximity to the place where the deity was enshrined Copper idols known as utsava igrahams were introduced These idols were taken in procession on specified occasions Two ours and other vehicles for the processions were built. A oar street was laid down, the owners of the houses existing on the street site having agreed to tell away their houses, Outsiders built Uhatrams in the car street for feeding devotees who attend the festivals. Rich families and communities provided funds for celebrating utsavams. These are the admitted facts. I shall immediately refer to some other facts which have been disputed here and in the Court below. The point for decision in these circumstances is, was there a dedication of the shrine for public worship and has the temple thereby become a public religious endowment.
12. Some of the circumstances relied on by the plaintiffs have, to a certain extent, been stated by me already. I shall now refer to the disputed facts. The plaintiffs' case was that there was a temple in the place where the present idol is installed, that the founder Lakshmana Goundan was given funds for building the present temple, and that consequently from the outset the institution was a public one. Both the learned Judges have rejected this contention. There is no reliable evidence of there having been a public temple in the place 'where the present temple stands. It is true that a goddess is referred to as existing in a portion of the temple. But the evidence is not satisfactory to prove that this goddess was the object of public worship at any time. However that may be, there can be no question that the funds for building the temple same from devotees. The 1st defendant contended that moneys were offered to his grandfather on account of his piety and sanctity, that the offerings were his private property and that consequently the temple built by him with those offerings was a private one. The evidence is not very definite on this question. But notwithstanding the high character of Lakshmana Goundan, it is abundantly clear that it was the deity which attracted the worshippers and that it was the deity for whom the offerings were made. The temple was on the model of the Palani temple. The festivals are still celebrated as in Palani. The accepted story on both sides is that it is the deity at Palani that had promised to establish itself in this shrine; therefore, it is impossible to believe that offerings were made to Lakshmana Goundan personally, and not to, the idol, Lakshmana Goundan's inspiration and his power of foretelling were all derived from the Deity, which he had installed and which he was worshipping. It is not usual with worshippers in this part of India to make large offerings to the priest apart from the idol. The Subordinate Judge in paragraph 44 does not say that the offerings were made to Lakshmana Goundan personally. Those who are acquainted with the sentiments which Hindus entertain towards the deity at Palani can realise at once what a powerful influence, it exercises over the minds of the people and how devoted worshippers are to it. It is, therefore, impossible to believe that the offerings were made to the Poojari and not to the deity.
13. One other fact on which there has been some dispute is this. Many families in the district have been treating this deity as their Kula Thaivum. It is a pity that witnesses were cot asked to explain the true significance of this expression. Kula Thaivam, according to Hindu notions, is the deity who presides over the destinies of a particular family. once a year and sometimes oftener pilgrimages are undertaken by the family to the place where the deity is. Before marriage and other auspicious ceremonies are performed in the family, special Pooja is made to the deity. When a member of the family becomes sick, vows are made to the deity. The evidence on this question has been accepted by the learned Judges and by the Subordinate Judge. The latter says in paragraph 44 : 'Many people consider the deity worshipped in the temple as their kula-deivam and make and fulfil vows in this temple.' Now it is impossible to hold that a deity which is regarded in this manner can be the private property of an individual. If it is private property, the owner can prevent access to the temple, can prevent the performance of the vows and can interdict the performance of the Poojas. I might say that it will almost shook the sentiment of a Hindu to be told that a deity which is regarded as the kula deivam by a number of people is the private property, of any one individual Mr. Justice Oldfield apparently realises the importance of this fact, but gets over it by saying that this belief in the minds of the people was not brought about by any act or omission on the part of Lakshmana Goundan and his heirs. The learned Judge apparently thinks that there is no estoppel against Lakshmana Goundan. With all deference I am unable to agree. It is almost impossible for a Hindu to believe that Lakshmana Goundan and his heirs were not aware that vows were being taken, and special Poojas were being arranged on the ground that the idol was the kula deivam They were on the spot to perform the Pooja. They must have known at the time of the special Poojas why they were being done. I must, therefore, respect-fully dissent from the explanation which the learned Judge has offered on this question. The fact, therefore, stands that the deity was regarded by many people, as the Subordinate Judge says, as their family deity. I have already referred to the fact that outsiders have provided funds for the performance of festivals in the temple. The evidence upon that question consists of Exhibits B, B (1), D, G, H, H (1), J, J (1), L and M. Certain accounts, namely K(1), K(2) and K(3), were exhibited in the lower Court. As it was objected in this Court that these three exhibits have not been properly proved, I shall not consider them in connection with this subject. There is also oral evidence on this question. The defendant himself admits that provision, has been made by the public for conducting festivals. Exhibit G is the family partition deed in which a sum of Rs. 600 was set apart for the performance of charities. Exhibit H is a compromise decree among the members of a family making a similar provision. Exhibit H(1) relates to a Chatram. Exhibit J(1) is a Will by a devotee. Exhibit M is an agreement among the members of a family. Exhibit L is a sale-deed, in which it is recited that the land was purchased for performing a festival. Letters were also produced in which the 1st defendant and his son had asked some of the persons who performed festivals to remit money Mr. K. Srinivasa Aiyangar who appeared for the defendants contended that the sums contributed were not enough for the conduct of the festivals and that the 1st defendant and his ancestors supplemented the contribution from their own income. This may be true Bat it does militate against the fact that notwithstanding such contribution, the public regarded that they had a right to conduct festivals for the deity. The learned Vakil for the respondents referred us to decisions in which it was held that a public trustee was bound to accept a contribution from a worshipper and contended that as on the evidence given in this case, it was clear there was no obligation on the part of the defendants to accept the offerings, the defendants were not trustees of the temple. There is some vague evidence given, mostly by the defendants' witnesses and also by some of the plaintiffs' witnesses, to the effect that permission of the defendants had to he obtained before performing a festival. This is all opinion evidence. Not a single instance was deposed to, in which the defendants refused permission. Moreover the performance of festivals is largely in the discretion of a trustee. Even in a public temple, the trustees are not bound to conduct a festival because a worshipper wants them to do so. No doubt, the discretion should not be arbitrary. But unless trustees are clothed with some powers to regulate the mode of worship, the affairs of an institution cannot be properly carried or : Courts in this Presidency have always recognised in the trustee a right to exercise judicious discretion regarding the performance of festivals. Therefore, even accepting everything that way deposed to on this point, it does not follow that the worshippers sought permission of the defendant and his ancestors merely because they considered that the temple was the private property of the 1st defendant.
14. The above remarks to a certain extent apply to the erection of choultries near the temple. There are four choultries altogether. Three of them belong to the worshippers. One was built by the defendants ancestors. This is another very important circumstance, indicating that the temple is a public one. If the conduct of a festival and the taking out of the deity depended upon the whim and pleasure of the defendants' family, is it conceivable that large sums of money would have been spent upon constructing rest-houses and Chatrams in the place? To say the least, this fact argues a consciousness on the part of the worshippers that the temple was public property and that they had a right of access to it. Mr. Srinivasa Aiyangar addressed the same argument leading the existence of choultries as he advanced regarding Kattalais. Another fact to which I made a casual reference at the outset should again be noticed. The existence of the fixed stone idol which is not carried in procession may be consistent with the idol being the private property of the owner. But it is hardly conceivable, in this part of India at any rate, that a copper idol would be introduced for being taken in procession if the temple itself was private property. The very object of a procession is that the image representing the idol inside should be taken out for public worship. Therefore, this circumstansces strongly negatives the suggestion that the temple was a private one.
15. Then there is another circumstance which very strongly supports the view taken by the learned Officiating Chief Justice. Some of the items in the plaint schedule stand in the name of the deity. As regards item No. 2, Exhibit C, the revenues register of the village contains a significant entry in column 15. The column is headed: 'Name and relationship of original grantee and of subsequent and present holders--Length of possession.' As against this item the entry is: ''Deity Kandaswami Pujari and Dharmakarta by Pudupalani Goundan, on purchase.' Mr. Srinivasa Aiyangar referred us to Exhibits 15 and 15(a) by which these lands were acquired by Lakshmana Goundan, Exhibit 15 was on the 13th of January 1837 and Exhibit 15(a) was on the 29th of November 1847. The purchases were made as if by a private owner. It was contended that no significance should be attached to the entry in the village register, having regard to the origin of the title. To my mind, the very origin of the title and the subsequent entry afford the clearest indication that after the purchase, the lands were dedicated for public purposes. The next item which I shall refer to is item No. 1. Exhibit D, the settlement and survey register of Mamundi village of the year 1871, contains two entries: In column 11 under the heading 'Pattadar's name' the entry is ' Kallipatti Kandaswami,' that is, the deity. In column 12 under the heading 'Remarks' the entry is 'Pusari Palani Goundan'. The learned Vakil suggested that the term Poojari is a name which was prefixed to the members of the family as they were doing Pooja : and he also suggested that The term Dharmakarta in Exhibit C was a similar prefix. But that suggestion will not explain column 11. When we remember that these entries in settlement registers are made after enquiry by the Revenue officers, and on statements male by persons in possession, it seems to be clear that this property was dedicated to the temple and the members of the defendants' family regarded themselves as trustees of the temple. Another item is contained in Exhibit F. That is the re-survey and settlement register of the village of Mullasamudram. There are two items in this document: Survey No. 19(3) and Survey No. 19(4), 19(3) is entered as private property of Lakshmana Goundan 19(4) is entered as temple Poramboke. The contrast between the two descriptions is very significant. This is item No. 5 in the plaint schedule. Exhibit V of the year 1871 also refers to it. Exhibit E relates to another item in the plaint. It is the register of Ballakulli village and was apparently made out in the year 1863, Under column 16 the entry is: 'Kallipatti Kandaswami Daity, Pujari and Dharmakarta Pudupalani Goundan.' As regards this item our attention was drawn to Exhibits 18(a) and 18 of the years 1903 and 1912 respectively, in which it was recited that the defendants were owners of the property. Apparently the 1st defendant had conceived for some time the idea of appropriating the income from the endowed properties for his own private use. This casual statement by lessees in this document cannot take away the value of Exhibit E. The learned Vakil realised the force of these entries in these documents and suggested that they may be explained on the ground that these were endowments made by the defendants to their family deity. It was argued that the expression Dharmakarta and Pujari' are not inconsistent with the private character of the institution. Reference was made to the words Debutter and Shebai ' occurring in cases decided in Calcutta and Allahabad. Whatever may be the notion entertained in the northern part of India as regards the significance of such words, there can be no doubt that in this part of India the word Dharmakarta is not applied to the owner of a private institution. The fact is significant that before public Revenue officials some statements must have been made which led to the entry, proving beyond doubt that the.defendants' family regarded themselves as trustees of a public institution and not as owners of a private temple. One other fact which was not disputed is that a large section of the public have been worshipping this deity.
16. As against these circumstances Mr. Srinivasa Aiyangar referred us to some fact, which, he contended, were not consistent with the public character attributed to the institution. He referred to the fact that a Hundi was being kept for throwing in the offering?. The existence of the Hundi is not denied. One fact, which apparently escaped the notice of the Subordinate Judge and which to my mind is very significant, is that Lakshmana Goundan himself maintained an account of the collections in the Hundi and also an account of the jewels. Exhibit 39 is of the year 1849. The entries in the cadjan account, whose genuineness was not disputed before us, relate to the collections from the Hundi box on the Thy Pushyam festival in the year 1849. The various items which make up the total of nearly Rs. 400 are given. If Lakshmana Goundan believed that he was accountable to no one, why did he keep an account of the offering? No doubt, no other account has been produced. But if there are accounts, they must be in the possession of the 1st defendant. He has not chosen to produce them. This does not show that no accounts existed. Exhibit 40 was also kept by Lakshmana Goundan. It contains an account of the jewels belonging to the deity. I have net heard any explanation about these two documents. The learned Vakil said that no regular accounts were kept of the Hundi collections, As I said before, the outside public is not in a position to know whether accounts were kept or not. Stress was laid on the fact that the public never asked for an account of the Hundi collections. Persons who are conversant with the habits of the people in India can attach no importance to this fact. A Hindu, after having made an offering to the deity, never troubles himself about its application. He considers that his duty is ended and that, if persons who are entrusted with the control of those offerings, do not behave as they ought to, the deity would look to their punishment and that he has no further concern with it. This is the general attitude of the people. With the spread of education, no doubt a new ideal has come into existence. The educated public now wants that the offerings should be devoted to the proper purposes of the institute. That shows the awakened consciousness of the people and accounts for the institution of a large number of suits for framing schemes. 1 do not think the fact that for a long time, the priest in charge was allowed uncontrolled possession of the income, is any indication, at any rate in India, that the priest was the owner of the offerings. The next circumstance relied on by the learned Vakil is that permission was obtained from the Poojans for the performance of utsavams. I have already referred to this matter. One other argument was that for getting beyond what is known as pithalai vasal path (the brass doorway) some present had to be made in the Hundi and that, therefore, the people were conscious that the idol was the private property of the Poojan. This again is a misapprehension. In Tirupathi, the most famous shrine in all India a fee is demanded for entrance into the Pagoda except on one occasion during the day In Srirangam, another famous shrine, the' trustees have levied a particular fee for entrance into a particular part of the temple on special occasions, such as the Ekadesi festival. In the Rock fort temple at Trichinopoly, every one who wants to so to the topmost part is asked to pay a contribution of not less than three pie. These levies are made not because the temple or the idol is private property, but because the trustees have to regulate the affairs of the temple. They have to collect money somehow for purposes of worship and they have to take special precautions about entrance into particular places. In order that the temple may have more income these devices are resorted to I say nothing as to whether they are legal. But these parities do not argue that the idol is private property The next circumstance relied on for the respondents is that the family of the defendants are the Archakas. It is true they do not belong to a class from which the Poojaris of a temple are drafted But there is no [rule that unless a person belongs to a particular class he should not perform worship in a temple. Having regard to the fact that the reputed founder of the institution himself performed the Pooja, it is only natural that his descendants should continue the worship. In the well-known temple at Chidambaram there are a large number of Archakas who claim to have come down to earth along with the deity for which they are performing Pooja. They do not belong to the caste from which ordinarily temple Archakas are drawn. It is only in the nature of things that the descendants of the person who performed the first Pooja should continue the worship. I do not think, therefore, that this fact militates against the public character of the temple. It was also argued that the defendants' family have, to the exclusion of the members of the public, been the sole managers and that this is an indication that the public have no right to interfere with the management. The answer to that is that it is not unnatural that the founder should be the first trustee and that his dependants should be the hereditary trustees. It is the commonest thing in India that so long as the founder's family lasts, even in the settlement of schemes, Courts turn to that family for providing a trustee, whatever restrictions they may place on his management. In the present case, nobody would have questioned the management of the grandfather of the 1st defendant, who seems to have led a holy life and who seems to have been conserving property till the year 1857. His son had a shorter career. We know very little about him. He apparently purchased some property for the temple, and from the evidence it appears that he conducted the charity efficiently and honestly. He died in 1863 leaving the 1st defendant, who was then a minor. During his minority, his mother seems to have conducted the affairs properly. 1st defendant's career in life has not been good. I refer to it not for the purpose of raking up his antecedents with a view to discredit his evidence, but for the purpose of showing that the public naturally had no faith in his character or capacity to manage. ' Ha was convicted of murder and the sentence was commuted to one of transportation for some years. He came out in the year 1903. It is not a violent presumption to make that the man against whom this charge of murder was made would not scruple to create evidence in his favour for the ownership of this temple. Therefore, I attach no importance to some of the documents which came into existence since 1903, to which I shall presently advert as they were strongly relied on by the defendants. After the 1st defendant returned, matters seem to have gone on from bad to worse. Enquiries were instituted in the year 1908 regarding his management. Exhibit 45(a) was in the year 1909. Then we have Exhibit 45(6), which was an enquiry in conneotion with the sanction in the year 1913. All these show that the public were not satisfied with the conduct of affairs by the 1st defendant. It may, therefore, be said that the public at the earliest possible opportunity began to question the 1st defendant's stewardship. I have already said that it was not shown that either Lakshmana Goundan or his son had behaved improperly in the management of the trust. Mr. Srinivasa Aiyangar relied strongly upon the fact that even after his release from jail, 1st defendant was allowed to conduct the worship. There is evidence that this man went through the ceremony of purification, which, according to Hindu notions, qualifies a person guilty of offences to perform worship. I do not think that circumstance tells against the public (sic) of the temple. Another circumstance relied on was the fact that the tomb of the grandfather adjoins the temple. Mr. Justice Old field is admittedly wrong in saying that the tomb is inside the temple. Even that will not affect the question. In some of the important temples in south India, the tomb of a great saint is within the temple. For example in Palani, on the model of which this temple was built, there is the tomb of the first saintly worshipper within the temple. Poojas are offered to it every day. In Srirangam, the tomb of the great founder of Vaishnavism, Sri Ramanuja Chariar, is within the four walls of the temple. One more circumstance on which stress was laid was the fact that Pooja was being done to the image of the founder and his wife, I do not think that that circumstance is of any value. In Srirangam, Pooja is done to Sri Ramanuja almost as grandly as is done to the deity itself. There are processions also for him. It all depends upon the veneration in which the founder is held whether any festivals are performed in his honour. There are not circumstances which establish that the temple is a private one.
17. I shall now refer to a few documents on which Mr. Srinivasa Aiyanger laid some emphasis. He referred to Exhibit 26, an income tax notice issued in the year 190S. There is only one of these notices exhibited, 1st defendant came out of jail in 1903, and it is no wonder that he allowed himself to be taxed on the income derived from the temple offerings. As to whether the tax was remitted and how long it continued we have no evidence. As I said before, any document which came into existence after 1908 can have no value in the case. Exhibit 25 is an application by the present defendant, in which he asked the Revenue Authorities to allow a peon attached to the temple to wear a silver badge. He refers to the temple as his own Devasthanam. This is consistent with his being the trustee of the temple. Even if it were otherwise, I attach no importance to this man's self-serving statements. Some enquiries were made in the years 1909 and 1913 by the Revenue officials [vide 45(a) and 45(6)]. The Tahsildar and the Deputy Collector were apparently of opinion that this temple was a private one. The opinion of these Revenue officials cannot weigh much in the case. What enquiries they made and how far they were influenced by the statement of the 1st defendant, we do not know. I do not think that their conclusion is of any value in dealing with this case. I have now referred to all the circumstances relied on by the plaintiffs and by the defendants.
18. To sum up, on the side of the plaintiffs we have these facts (a) the public have been worshipping in the temple for a century and they consist of persons not only residing in or about the place but of persons from the districts of Trichinopoly and Coimbatore and even from the neighbouring State of Mysore : (6) the money for the building of the temple has come from their contributions : (c) some members of the public have established Kattalais for utsavams in the temple : (d) some of them have purchased lands for the conduct of charities in the temple (Exhibits S, D and L) : (e) some of them have built Chatrams wherein food is distributed and in which travelers rest themselves on occasions of festivals : (f) there is an utsava vigraham which is taken in procession on specified occasions : (g) oars were built and a street was laid out in which processions are regularly conducted : (h) many persons regard the deity as their kula deivam : (i) vows are taken for the performance of tonsure ceremony in the temple : (j) the grandfather himself built a choultry for the accommodation of travellers : (k) the grandfather kept accounts of the Hundi collections and also a list of the jewels belonging to the idol : (l) there are entries in the Village Registers in which the deity is entered as the Pattadar of some lands, and the defendants' ancestors as Dharmakartas or Poojaris of the temple : (m) there must have been statements made to Revenue officials by the member of the defendants' family from which alone the entries in Exhibits E and F could have been made showing that certain properties belonged to the temple and that the defendants' family were only trustees. As against these facts we have others: (1) that the temple was founded by the ancestor of the defendants : (2) that the management continued in the defendants' family uncontrolled hitherto : (3) that there is a tomb of the founder adjoining the shrine : (4) that some Poojas are performed to the images of the founder and his wife : (5) that the Hundi collections and. other offerings have been at the disposal of the defendants' family without being called to account: (6) that the family of the defendants are the Poojaris of the temple : (7) that some sort of restriction is placed against promiscuous entrance into the shrine : (8) that the temple itself has been built upon land belonging to the defendants : (9) that in one year the 1st defendant submitted himself to be taxed in respect of the income from the temple. I have dealt with each of these circumstances separately. The cumulative effect of the circumstances relied upon by the plaintiffs is so strong that I have no hesitation in holding that the temple is a public) one. The circumstances relied upon by the defendants are all of them explainable with reference to the fact that the original founder was a holy man and that the people trusted his successors to carry out the objects of the trust. A farther explanation is furnished by the general attitude of the people in India towards persons whose ancestors had a high reputation for sanctity.
19. It was rightly conceded by Mr. Srinivasa Aiyangar that the question whether an institution is dedicated to public worship is ordinarily a question of fact. Nonetheless he quoted a number of decisions for the purpose of showing on what principles a conclusion of this kind should be based. Mr. Krishnaswamy Aiyar, on the other hand, cited other decisions to draw oar attention to circumstances which should guide Courts in deciding whether there is dedication or not. Before dealing with these cases I should like to make one remark of a general character, In southern India, excepting Malabar, on which I shall say a few-words later on, there is no private temple in which the outside public has established Kattalais and in respect of which they have built Chatrams for the accommodation of travellers. Mr. Srinivasa Aiyangar with his large experience of litigation told us that he is unable to mention another instance of a similar kind. He referred to temples in Malabar and to private institutions in Bengal It is necessary to deal with these two instances. In Malabar people are divided into Tar wads, which are practically separate domains : each clan or Tarwad has its own place of worship, its own burial ground, its own bathing tank, etc each of these Tarwads has been regarding itself as a separate entity different from the rest. There are, therefore, numerous private temples in Malabar and the questions which have come before the Courts have mostly related to the right of trusteeship in such temples inhering in the members of the Tarwad. Malabar in this respect stands by itself. This clannish feeling is not what we find outside the west coast. In the south, common worship in the temple, and communal rights in burial grounds and in bathing places are everywhere to be found. Therefore, in dealing with a case coming from the east coast, no decision in respect of temples situate in Malabar can be of any practical assistance. As regards Bengal again, it will not be gainsaid that there public temples do not exist to the same extent to which they do in the south, Whereas the rule in the south is that endowment of property is made to the idol in a temple, in the north we find innumerable instances where endowments are made in the name of a reputed saint who worships the idol. The personal sanctity of the founder seems to have had more influence in the north than in the south. When we remember that most of the temples in the south do not owe their existence to Aryan influence but were built and endowed by the non-Aryans and when we also remember that the endowments in the north are mostly by Aryans, the distinction between the two classes of temples would be apparent. Moreover, no cases from Calcutta were quoted before us to show that the outside public established Kattalais or performed festivals in temples owned by a private individual. Therefore, the cases relating, to Malabar and to Bengal would not help us in the determination of the present case.
20. With these preliminary remarks, I proceed to discuss shortly the cases which were quoted before us. The learned Vakil for the respondents relied upon Satrasala Venkatachellamiah v. Pouchangum Narrainappah Mad. Sad. Ad. (1853) p. 104. In that case it does not appear that there was any question of dedication. In this connection I must take the opportunity of differentiating between two classes of dedications. The dedication with which we are concerned, properly speaking, is the consecration of a temple for public worship : that is throwing open the portals of a temple for public worship. It is a dedication in the strict sense of the term. In some cases the word dedication is employed to denote an endowment of property to the temple. The question has been discussed whether the mere use of the income for purposes of worship amounted to a dedication of the property to a temple. In the case of a dedication of the second kind, it has to be shown that the property ceased to belong to the individual and was given up for the use of the temple. In the first class of cases it will generally be sufficient to show that there has been free access to the temple, and that there have been publics worship and public celebrations. I think it is necessary that we should bear in mind these distinctions in dealing with some of the cases. In the case in Satrasala Venkatachellamiah v. Pouchangum Narranappah Mad. Sud. Ad. (1853) p. 104 the question was whether the person who built the temple or the person who installed the idol was entitled to management and possession. The question of dedication was not in issue in that suit The decision in Satrasala Venkatachellamiah v. Pouchangum; Narrainappah Sud. Dow. Ad. (1854) 100 makes this position clear. The next case qouted was Chemmanthatti Chapunni Naiyar v. Meyene Itachi Sud. Ad. (1862) p. 90. That is a Malabar case. In that case, the question was whether the property was inalienable because it was attached to a temple. Here again no question of dedication was considered. Pattanur Valangeri v. Narayanan Nambiar 10 Ind. Cas. 398 : 21 M.L.J. 585 : 10 M.L.T. 64 : (1911) 2 M.W.N. 378 is another Malabar case. Reference was made in that judgment to a decision, Appu Pattar v. Kurumba Bhagwati 11 Ind. Cas. 633 : 21 M.L.J. 588 In that decision, the learned Judges distinctly say that there was no issue whether the temple was public or private. Therefore, the case was decided on assumptions. These were all the Madras cases referred to. The next case was one Doe d Howard v. Pestonji Perry's Oriental cases 535 : 4 Ind. Dec. 488. As pointed out by Mr. Krishnaswamy Aiyar, this case seems to have depended largely upon the view taken by the Chief Justice that the document exhibited in the case was not sufficient to operate as a conveyance of property. In more than one place the learned Chief Justice says that there are no words of conveyance and there are no trustees to whom the property is conveyed. Apparently at the time this case was decided it was considered essential that to have an effective dedication there must be a deed which an English lawyer would regard as a proper conveyance. Moreover in that case there was a special reservation by the executants of documents in these words: The property shall always be subject to our authority and to that of our heirs.' See page 536. The decision in Konwar Doorganath Roy v. Ra a Chunder Sen 2 C. 341. admittedly related to a private temple. The question in that case was whether the utilisation of the income by the family was evidence of dedication of the property to the idol. The judicial Committee came to the conclusion that there was not sufficient evidence of endowment This case pertains to the second class of dedication to which I referred already. This case does not affect the present case. Pestonji Jivanji v. Shapurji Edulji Chinoy 35 C.P 478 : 12 C.W.N. 465 : 35 I.A. 79 : 7 C.L.J. 401 : 10 Bom. L.R. 287 : 18 M.L.J. 199 : 14 Bur, L.R. 102 : 4 N.L.R. 65 : 3 M.L.T. 399. has no bearing on the present ease. There apparently the founders' heirs were held to have the right of the management and to have the right, to prohibit the Parsee community from putting up a new tower. When the founders' descendant sued for an injunction to restrain the erection of the new tower, it was held that it was not established that the public had this right to so put up the new tower. No question as regards dedication' is discussed by the judicial Committee. There was an issue about it and the judicial Committee accepted a finding of fact and proceeded to give their decision on the basis of that finding. These are all the cases relied on behalf of the respondents.
22. Mr. Krishnaswamy Aiyar for the appellants quoted a large number of decisions before us. The most important of them is the judgment of Mr. Justice Scott in Thackersey Dewraj v. Hurbhum Nursey 8 B. 432. The circum-stances relied on as indicating dedication are to a large extent the same as those to be found in the present case. Great stress was laid in that case on the fact: that the temple was open to public worship. The next decision in Monahan Gnash Tambikar v. Lakhmiram Govindram 12 B.K 247 : 6 Ind. Dec. (N.S.) 650 is a very instructive case. The learned Judges, of whom Mr. Justice West was one, say: 'it is indeed a strange, if not wilful, confusion of thought by which the defendants setup the Shri Ranchhod Raiji as a deity for the purpose of inviting gifts and vouohsafing blessings, but as a mere block of stone, their property for the purpose of their appropriating every gift laid at its feet. But if there is a juridical person, the ideal embodiment of a pious or benevolent idea as the center of the foundation, this artificial subject of rights is as capable of taking offerings of cash and jewels as of land. Those who take physical possession of the one as of the other kind of property incur thereby a responsibility for its due application to the purposes of the foundation Compare Griffin v. Griffin (1804) 1 Sch. & Lef. 352 : 9 R.R. 51; Mulhallen v. Marum (1843) 3 Dr. & War. 317; Aberdeen Town Council v. Aberdeen University (1877) 2 App. Cas. 544. They are answerable as trustees even though they have not consciously accepted a trust, and a remedy may be sought against them for maladministration by a suit open to any one interested, as under the Roman system in a like case by means of a popularis actio' This quotation, if I may say so with respect, very succinctly sums up the duties of persons who found temples. In the beginning, the offerings are made without any idea of calling the founder to account because of the sanctity of the shrine and because also of the piety of the founder. It would be almost repugnant to all notions of Hindu theology that this founder and his heirs should be permitted to regard the deity as their private property, for exhibiting which they are entitled to make income for themselves. It would undoubtedly be regarded as a fraud practised upon the public that the income derived with reference to the sanctity and holiness of a shrine should be regarded as the perquisites of the persons in charge, and that they should be allowed to mismanage and misappropriate the income. The offerings are handed personally to them because they are the custodians of the deity : they should utilise these offerings for the benefit of the deity and for providing conveniences for the worshippers who come there for worship. It would strike at the very root of religion in India to hold that the person who is permitted by the worshippers to receive the offerings is the owner of the income and not simply the trustee thereof. The passage from 12 Bombay is a compendious expression of Hindu ideas on this question. In Chintaman Bajaji Dev v. Dhondo Ganesh Dev 15 B.P 612 : 8 Ind. Dec. a temple was regarded as public, notwithstanding the fast that the founders and their heirs mixed the income arising from the offerings with their own private income and notwithstanding the fact that the temple itself was built over the grave of the first fonder. Jugalkishore v. Lakshmandas Ragunathdas 23 B.P 659 : 1 Bom. L.R. 118 and Girdhar lal v. Naranlal 17 Ind. Cas. 779 : 14 Bom. L.R. 1135 are further instances of the same kind. In Madras, the most notable instance of a temple, originally founded by private persons, being regarded as a public temple is the Chidambaram temple. The Archakas there claim to have come down to earth along with the idol they have set up. Undoubtedly every pie that is offered is distributed among the Archakas. They keep no accounts which is open for public inspection. They render no accounts to the public of the income. Bat there is no doubt that the public have a right of access to the temple. The public have largely endowed Kattalais for the worship, have established choultries, have constructed feeding houses and are conducting festivals. Naturally these circumstances have been taken into account in pronouncing that the temple is a public one and not a private one. See Natesa v. Ganapati 14 M.P 103. During recent years there have been some cases in Madras which require consideration. Peesapati Sitaramanujachari v. Kanduri Vellamma 30 Ind. Cas. 822 : 2 L.W. 858 : 18 M.L.T. 543 : (1915) M.W.N. 842 and Muthiah Chetti v. Periannan Chetti 34 Ind. Cas. 551 : 4 L.W. 228. and Subramania Aiyar v. Venkatachala Vadhyar 37 Ind. Cas. 688 : 4 L.W. 444 : (1916) 2 M.W.N. 351 are cases where the question arose whether the temple was a public one or a private one. In all of them the conclusion was that the temple was a public one , Peesapati Sitaramanujachari v. Kanduri Vellamma 30 Ind. Cas. 822 : 2 L.W. 858 : 18 M.L.T. 543 : (1915) M.W.N. 842 was decided by the Chief Justice and Srinivasa Aiyangar, J. The question there arose directly. Mr. Justice Srinivasa Aiyangar refers to the fact that there Was an installation of a stone idol and the introduction of a copper idol. He says: In fact, the Puja and other services in the temple in no way differ from those in a public temple. It is admitted that the general public, ever since the construction of the temple and the consecration of the idol?, have been worshipping in the temple. It is said that they do so with the permission of the Dharmakarta for the time being.' * * * 'It is also clear from the evidence, that the general public have been making offerings and fulfilling vows in the temple.' * * * 'Exhibit C shows that a person who was a stranger to the defendant's family gave some lands to the temple.' The learned Judge then refers to other circumstances, namely the defendant's calling himself a Dharmakarta, the enfranchisement of the Inam lands, and concludes : ' The evidence above set out clearly establishes that the suit triple was dedicated for public worship.' The non-keeping of accounts, as in the present case, was relied on in that case and the further fact that the bulk of the property was given by the defendant's husband was also mentioned. These circumstances were held not to weigh against the public character of the temple. The learned Judge's wide experience of temple litigation gives to this ruling peculiar importance. The learned Chief Justice in a very short judgment says : ' Having regard to the ideas prevailing among Hindus in this part of India, I think there is sufficient evidence of an intention to dedicate these properties for public charitable purposes, that is to say, for the purposes of a temple for the use of Hindu worshippers.' I attach very great importance to this dictum. The learned Chief Justice has been the chief law officer of the Crown in the Presidency as Advocate General. It was his duty as such officer to grant sanction for instituting suits under the Civil Procedure Code. In the above passage he refers to the 'ideas prevailing among Hindus in this part of India,' as a very important factor in coming to the conclusion that the temple was a public one. I may claim some acquaintance with temples in southern India and in my opinion the dictum of the Chief Justice succinctly expresses the ideas of the Hindu public on this question. The idea prevailing in south India is that when once a great man install a deity and the public have a right of worship in it, it is a public temple. That is the consciousness of the community and the fast that this consciousness is relied on by the learned Chief Justice with his large experience on the Bench and with his knowledge gained while he was Advocate General makes the decision in Peesapati Sitaramanujachari v. Kanduri Vellama 30 Ind. Cas. 822 : 2 L.W. 858 : 18 M.L.T. 543 : (1915) M.W.N. 842 particularly valuable. In Muthiah Chetti v. Periannan Chetti 34 Ind. Cas. 551 : 4 L.W. 228 on facts very similar to the present, the Chief Justice and Phillips, J., came to the conclusion that the temple was a public one. Ayling and Srinivasa Aiyangar, JJ. in Subrarmania Aiyar v. Venkatachala Vadhyar 37 Ind. Cas. 688 : 4 L.W. 444 : (1916) 2 M.W.N. 351 gave a similar decision. It is unnecessary to multiply citations further. For all these reasons I am of opinion that the temple is a public one. Mr. Srinivasa Aiyangar argued that as no date can be predicated as being the date of dedication, it must be proved that the founder dedicated it at the moment he installed the idol and otherwise no dedication should be inferred. I do not think that this contention is well founded. I should not be supposed as suggesting that the moment the idol was installed, the founder did not consecrate it for public worship. Even if that conclusion is not possible, when he purchased the property under Exhibits 15 and 15(a) and subsequently allowed that property to be utilised for temple purposes, he mast have dedicated the temple for public worship. In the absence of any writing and in the absence of any evidence of persons who were alive in 1819, it is not possible to say when the dedication was made. It is the usage in the temple and it is the practice that has been observed that should guide us in determining this point. From this point of view, I have no hesitation in holding that the temple was dedicated at least during the lifetime of Lakshmana Goundan. That disposes of the main question argued before us.
23. One or two subsidiary questions were casually alluded to by the learned Vakil for the respondents, on which it is necessary to say a few words. The learned Vakil argued that the present plaintiffs have not shown that they have such an interest as is necessary to enable them to institute a suit under Section 92, Civil Procedure Code. No issue was taken upon this point, and we find nothing in the judgment of the two learned Judges on this question. If the point had been raised definitely, plaintiffs could have let in evidence to show that they had a substantial interest in the worship of the idol. Therefore this argument comes too late. It was next contended that the sanction obtained from the Collector is not a proper one. There were two petitions by two sets of people to the Collector. The Collector heard both of them together and passed one order on both of them, to the effect that two or more among the five signatories of the two petitions combined should file the suit. He ought to have no doubt specified the individuals. The three persons who actually instituted the suit were, however, three of the five persons who applied for the sanction. This irregularity in the sanction cannot vitiate the suit, Moreover, this point does not seem to have been relied on before the two learned Judges. The two petitions must be regarded as one and the order must be taken to have been passed on both, and the fact that the suit was instituted by one man who signed one of the petitions and by two others who signed the other petition in not an objection which vitiates the sanction. On the whole in my opinion the Subordinate Judge was wrong in holding that the temple is not a public religious endowment. His decision must be reversed. As regards the comments of my learned brother on some of the statements made by me, I wish it to be understood that my language was not intended to decide any question of ethnology regarding race.
Born, J.
24. The only question for decision is whether the Kandasami temple in Kalipatti village of the Salem District is a public religious institution or not, I agree with the conclusion at which my learned brothers have arrived and shall confine myself to stating briefly the reasons which make me take this view of the facts. There is now little dispute about the main facts, and the controversy is really confined to the question of what inference is to be drawn from them. The following account of the history of the institution appears to be established. The temple owes its origin to Lakehmana Goundan, grandfather of the 1st defendant. In the year Vishu he installed on his house site in Kalipatti an idol of the deity from which the temple takes its name. Other objects of worship were placed in the house itself and thereafter Lakshmana Goundan removed his residence to another building. The temple was erected on the site including the portion which had been previously occupied by the dwelling house. Lakshmana Goundan was a man of small means and the funds for the creation of the temple and the conduct of the worship were derived from offerings obtained by him and from out of his earnings as a seer. As might be expected in the circumstances, the progress of the building was gradual. The main features had, however, been completed by the time of Lakshmana Goundan's death in 1857, He was succeeded by his son who survived him for a few years only, and during the long minority of the 1st defendant, the affairs of the temple appear to have been managed by a deputy, who was also a member of the family. Additions were made to the temple building and its paraphernalia by this deputy and after him by the 1st defendant. The whole structure was put up by the members of the family. The temple gradually grew in importance and the main festivals are now attended by a large number of persons of different castes and coming from several districts. The 1st defendant has done much to attract visitors to the festivals, e.g., by starting a cattle fair. From the beginning the defendants' family has had the sole conduct of the worship and unquestioned control over all the offerings. Vishu (1821) is recited as the year of the foundation in Exhibit LI, and I see no reason to doubt that this is in accordance with tradition and probably correct. Exhibit XXXII is referred to as indicating that a considerable part of the fabric had been constructed before that date. But this is in conflict with other evidence, e.g., plaintiffs' 22nd witness who remembers the temple when it consisted of nothing more than a brick mantapam. The name of the year Pramadi entered in Exhibit XXXII is probably a mistake. Plaintiffs at one time alleged the existence of an older shrine on the same site : but this is a baseless suggestion made for the purpose of strengthening their case in applying for sanction. I agree with the Subordinate Judge in holding that the allegations of collections by strangers for the construction of the temple and of the building of portions of the temple by others than the members of the defendants' family cannot be believed.
25. The material question to my mind is whether there was any dedication during the life of Lakshmana Goundan. If the temple was a private institution in his time, there is, in my opinion, no evidence which would justify a conclusion in favour of subsequent dedication to public use. These was either such dedication by Lakshmana Goundan or none at all. There is no doubt that in recent years at any rate the 1st defendant had treated the temple and the offerings as his exclusive property and that he has publicly asserted private ownership. Lakshmana Goundan was an ardent devotee of the well-known temple at Palani and made regular pilgrimages to that place. The tradition is that in 1821 he had a dream in which he was told that, in recognition of his piety and devotion, the deity that he worshipped at Palani would make Kalipatti also his special abode. This favour was obtained through Lakshmana Goundan, but it is not stated that it was for his exclusive benefit. He certainly did not regard it in this light. The use of the public temple at Palani was followed and, far from attempting to confine the worship to his own family or a restricted circle, he took steps which indicate the desire to attract as many others as possible. The usual features of a public temple were reproduced. A processional way was formed after acquiring portions of the village site necessary for this purpose, A oar was constructed, an image to be carried in procession was completed and a Chatram was built for the accommodation of visitors. The public festivals of Palani were celebrated in Kalipatti also. Contributions for special service were received from strangers (vide defendant' 1st witness). Lakshmana Goundan no doubt used part of the offerings for the maintenance of his family, as he was quite, entitled to do. There seems to be no reliable evidence that he appropriated any consider-able part of the temple income to acquiring property for himself. This was a later development. The income appears to have been comparatively small. In 1849 (Exhibit XXXIX) the collections during the chief festivals did not exceed Rs. 400. The emoluments of the deputy appointed during the 1st defendant's minority were fixed at Rs. 4 a month -Exhibit XXIII.
26. The contention for the defendants is that they are the owners of the temple and are entitled to dispose of it in any way they think fit, as far at least as strangers to the family are concerned. This involves a right to abandon the worship if they so please and to utilise the buildings and site for secular purposes if, e. g., these are likely to prove more profitable. As far as I am able to form an opinion, this is an idea repugnant to the general sentiments of Hindus and I may add that in analogous circumstances, it would be repugnant to the sentiments of the followers of other religions as well. It is in this light that the intentions of Lakshmana Goundan must be viewed. The feeling would be all the stronger in his case, as he is admitted by all to have been a man of strong religious convictions. He installed an image of the deity worshipped at Palani whose devotee he was. He took steps to secure that the worship should be public, and I am inclined to think that the correct inference from this conduct is that he intended that this worship should be for all time and as of right.
27. The defendants rely upon certain facts as indicating that this was not his intention. I agree with the learned Judge from whose decision this appeal is preferred that the defendants' witnesses as a body are entitled to considerably greater credit than those produced by the plaintiffs. The question is, what weight is to be attached to their statements in so far as they seem to support the case of private ownership. There is a considerable body of evidence to the effect that on certain occasions, at any rate, entry into the temple is restricted to those who place offerings in the Hundial box. The witnesses state that those who do not pay must perform their worship from without the gateway. No case of exclusion is established. It is within my own experience that Hundial boxes are kept at the entrance of some temples which are undoubtedly public, and the contributions so received form no inconsiderable part of the income of those institutions. An ordinary worshipper considers it part of his duty to make a contribution, however small. I have no doubt that the witnesses are speaking the truth when they say that those who go in make payments, but I am not satisfied that there are any sufficient grounds for holding that this is conduct which establishes rights of ownership in the defendants' family. Some witnesses who contribute to Maravanai state that they do so only with the permission of the defendants. In my opinion, this is not of much importance when it is remembered that the defendants are undoubtedly the sole managers and Poojaris. Permission would naturally be asked from them and they must have a wide discretion in deciding whether certain services are to he conducted or not. Most of the statements of the witnesses as to the authority of the defendants over the temple and the offerings are not inconsistent with their powers being limited to those just referred to. The effect of opinions expressed as to private ownership is also discounted by proof of acts and conduct on the part of strangers, which are inconsistent with such a view being held.
28. Certain facts in connection with the temple and the worship performed there are relied upon as showing that it is private institution. These are (1) that no entry is permitted into the Idumbar shrine which appears to stand on the site of the Pooja room of the original house, (2) that the founder is buried within the walls, though not inside the temple and (3) that Pooja is offered at his tomb and to effigies of himself and his wife. The history of the foundation and the repute which Lakshmana Goundan had, account sufficiently for these facts and they do net seem to me to be inconsistent with the temple being a public institution. The acts of reverence so done are subsidiary to the worship of the deity to whom the temple is consecrated and by whose name it is known.
29. Next, reliance was placed on the fact that the temple has been treated as private by public officers. This view has been maintained in several reports made by Tahsildars and Divisional Officers, e.g., Exhibits XLV (6) and XLVIII. These relate to the period of the 1st defendant's control when he was undoubtedly asserting rights of private property. It is not clear on what enquiry these opinions were based, and it must be assumed that the chief executive officer of the district who granted sanction for the institution of this suit considered the conclusions previously arrived at as open to doubt. The receipts by the 1st defendant have been assessed to income-tax from 1908--Exhibit XXVI. This naturally-followed from the 1st defendant's assertions. It was no part of the business of an assessing officer to dispute his liability to pay. The Taluk Board refrained from interfering with the levy of fees for shops on temple Poramboke site during festivals. This decision seems, however, to have been come to on the general grounds that interference with such income of any temple is inexpedient--Exhibit XLV (a).
30. Great stress is laid on the fact that the defendants' family has always had the control of the worship and offerings. Until this suit, no attempt was made to question the extent of the Poojari's powers of disposing of the income in any manner he pleased. It is suggested that even these proceedings have not been instituted out of regard for public interest but from less worthy motives. Assuming this to be so, it is frequently the case that indirect motives are the force which overcome the apathy generally displayed in defending public interests. If the income had remained at the modest figure which seems to have been reached at the death of Lakshmana Goundan, it is, in my opinion, very questionable if this suit would ever have been heard of. It is the growing importance of the temple and its festivals and the consequent increase in the income that has attracted interference. Al. legations are made in the plaint that the services have not been conducted and that worshippers have been put to great inconvenience. These allegations, like some others made by the plaintiffs, are wholly without foundation. On the contrary, the evidence shows efficient management of the worship and festivals on the part of the defendants and complete satisfaction on the part of the great body of worshippers. In these circum-stances, most persons interested were not likely to make any complaint, even though well aware that a considerable part of their offerings were being appropriated by the defendants to their own use. It has also to be remembered that to question the claims of 1st defendant involved undertaking litigation against an opponent possessed of ample means provided by the worshippers themselves. The one thing certain about such a contest is that it will be both costly and protracted. As already stated, there are distinct indications that strangers regarded the temple as a public institution. Three Chatrams have been created for the accommodation of pilgrims attending festivals. Contributions are made by strangers and sometimes solicited from them, for meeting part of the festival expenses. Several instances are proved in which arrangements have been made in the families of worshippers for securing funds required for subscriptions for the upkeep of Chatrams. Vows are performed at the temple. Many persons go there with kavadis just as they do to Palani, and there is also evidence that a few have adopted the deity as their kuladaivam. It is very unlikely that these acts would have been done if the temple had not been regarded as publics. It is true that there is no evidence of any direct endowment in the shape of lands. The fact that the temple stands on grama nattam is unimportant. The site belonged to Lakshmana Goundan and the erection of the temple there does not indicate that it was either public or private. Some lands which were originally personal Inams were acquired by Lakshmana Goundan in his own name without any indication in the title deeds that they were intended for the benefit of the temple : but they are now entered in the public records as held on behalf of the temple by the Poojaris. The history of the entries is not very clear. But they are certainly some indication that the suecessor of Lakshmana Goundan, in whose time they were made, regarded the acquisitions as having been intended for the benefit of the temple. A portion of an Ayan Patta land, Survey No. 19/4, belonging to the defendants' family was transferred during the minority of the 1st defendant to temple Poramboke. This is, in my opinion, a significant circumstance. It is most unlikely that such a transfer would have been applied for or would have been sanctioned, unless the Pattadar had wholly abandoned any claim to use the land as a source of private gain--yet rental obtained from this land is now claimed by 1st defendant as his private property--[vide Exhibit 24 (d)].
31. In the result, I think that the inference I have drawn as to Lakshmana Goundan's intention from his conduct is not rebutted by evidence produced on the side of the defendants, and that it does receive support from the attitude of strangers towards the temple and from the manner in which some lands have been dealt with by members of the defendants' family. I agree with the order proposed by my learned brothers. Speaking for myself, I trust that in the framing of a scheme, due regard will be paid to the position which the defendants' family has always held in connection with this institution and that interference will be limited to such measures as are necessary to secure that the income of the temple is properly utilised and accounted for by the defendants and their successors-in-office.