JUDGMENT Govinda Menon, J.
1. The appellant as the President of the Nurani Grama Jana Sabha, Nurani, in Palghat seeks to set aside under Section 84(3) of the Madras Hindu Religious Endowments Act, an order of the District Judge of South Malabar, holding that the three' temples situated in that village are institutions to which the Act applies. The learned District Judge has set out the history of the institutions and his findings regarding certain aspects were not seriously, canvassed before us. Ke expressed the opinion that the temples in question belong to the Nurani Grama Samuham consisting of the Nurani villagers, who manage the affairs of the temple by an elected committee.
2. On behalf of the Endowments Board, the respondent in this appeal, this conclusion is not controverted, and it, therefore, becomes unnecessary to trace the history of the institutions and how they are being managed. That the Nurani Grama Samuham consists of a fluctuating body of villagers who are competent to hold and own property is also conceded on the side of the respondent and we need not, therefore, elaborate upon the nature of the endowment. In Simdara Ayy'ar's Malabar Law, at pages 263 and 364, the learned author discusses the question about the nature of temples owned and founded by village communities who have migrated to Malabar from the East Coast and an expression of opinion is found there that it would probably not be easy to hold that these temples are public institutions whatever may be the right view to hold with respect to the temples founded by the other village communities. Reference is made in that connection to --'Yegnarama Dikshitar v. Gopalat Patter', AIR 1918 Mad 733 (A).
3. The appellant's learned counsel contended that the temples in question do not coma within the definition of the term in Section 9(12) of the Act for the reason that the ownership is vested in a village community who live an extremely corporate life and that the management is conducted by an executive body duly elected by the villagers as a whole. 8uch a body, according to judicial pronouncements, is capable of owning, holding and disposing of property and when it is found that the temple is the property of a corporate body of that character, it cannot be held that the public as such have any right in the temple. Whatever may be said with regard to allowing members of the public worshipping in these temples without explicit permission from the executive management, it is contended that the villagers have the right and authority to prohibit other than members of the village community from resorting to these temples for worship.
Ordinarily no pious Hindu would decline permission for anyone to worship in a temple, and the not frequent instances of members belonging to other villages worshipping in the temple can be accounted by the fact that some kind of implied permission is given to them. It is, therefore, urged that this fact cannot convert the temples into public temples. The second argument, of the learned counsel is that in this case there is ho dedication to the public as such and if there is no dedication, the real kernel of the definition cannot be fitted in so far as these temples are concerned. We have to examine each of these arguments.
4. The difference between a public and a private trust is brought out in certain observations of Mitter J. in -- 'Mahomed Nabi v. Province of Bengal', AIR 1942 Cal 343 at p. 349 (B), which are to the following effect:
"The essential difference between a private and a public trust is that, in the former, the beneficiaries are definite and ascertained individuals or who, within a definite time, can be definitely ascertained, but, in the latter, the beneficial interest must be vested in an uncertain and fluctuating body of persons -- either the public at large or some considerable portion of it answering a particular description."
Learned counsel for the appellant relies upon this passage to show that in the present case the beneficiaries are definite and ascertained individuals, viz., the Tamil Brahmin community of Nurani village who can be ascertained with definiteness within a definite time, though it may be said that it is a fluctuating body. That a fluctuating body of persons such as a village community is even capable of owning property, according to Hindu law is seen from P. B. Ganapathi Aiyar's Hindu & Mahomedan Endowments at' page 136. For that proposition various authorities are quoted by the learned author. Again at page 705 there is, a discussion regarding members of a caste owning temples whether, such temples are public or not in 'this connection we find the following observation :
"Though a temple may belong to a particular caste in the sense that the members thereof founded and subscribed for the same, it may not - be public though it is very difficult to say how it is not. Where the temple thus founded and maintained by a caste is open for public worship and inams have been granted by former Rajahs there can be no doubt that the institution is public."
5. Learned, counsel also invited our attention to -- 'Suppan Achari v. Vannia Konar', AIR 1914 Mad 678 (1) (C), with respect to a caste acquiring rights in certain properties. We need not discuss this aspect of the case at any length for the reason that it is nobody's case that anybody other than the village community of the East Coast Brahmins settled in Nurani had at any time any special rights in these temples. But the further question that has been argued is that unless there is dedication to the public, it cannot be held that the temples in question can come within the definition.
6. Strong reliance is placed upon certain observations of the Judicial Committee in -- 'Bhag-wan Din v. Gir Harsaropp', AIR 1940 PC 7 (D), in which the question whether a temple was public or not was considered. What is contended by the appellant is that the mere fact that Hindus willing to worship in the temples have never been turned away would not extinguish the private character of the temples if there had been no dedication to the public as such. On the facts of that case, their Lordships held that there was no dedication. Then again, observations in -- 'the Secy, of State v. Baibatrao', 28 Bom 276 at pp. 283 and 284 (E), as well as in -- 'Thackersey Bweraj v. Hurbhum Nursay', 8 Bom 432 at pp. 453 and 454 (F), were relied upon by Mr. Sundara Aiyar for the appellant to show that even in cases where a caste or a community may have the temples and then properties vested in it, still, unless there is dedication of the same to the public at large such institutions cannot be termed as public temples.
In a recent publication, the Hindu Law of Religious and Charitable Trust by D. G. Bijan Kumar Mukherjea (Judge, Supreme Court of India) at page 47 the question of divestiture of ownership by dedication is considered and we are invited to hold that the observations there can be usefully applied to the present case. Passages in Mayne's Hindu Law at pages 913, 921 and 922 were also brought to our notice regarding the nature of the dedication.
7. On the other hand learned counsel for the respondent strongly relies upon some decisions of this Court holding that temples vested in village communities like the one in question are public temples and that the question of dedication is a matter of inference. That a temple belonging to a caste or a sub-section of the community is nevertheless a public temple within the meaning of the definition of the term was also relied upon. The question, therefore, is whether the three temples are places used for public religious worship and dedicated to, and used as of right by, a section of the Hindu community as a place of religious worship. In -- 'Bhavanam Nagireddi v. Commrs., for H. R. E. Madras', AIR. 1937 Mad 973 (G), Varadachariar J. had to consider the question as to whether a particular temple was a religious endowment as defined in Section 9(12) of the Act and he held that so long as there is no intention to exclude the right of worship, the restriction of the right of outsiders to interfere in the management of the temple is not a determining fact in deciding whether it is a temple as defined in the Act. On a reading of the judgment it seems clear that the learned Judge was of opinion that dedication is a fact which can be inferred from the circumstances of the particular case and need not necessarily be based upon documentary evidence. See also -- 'Narayanan v. Board of Commrs., H. R. E. Madras', AIR 1938 Mad 209 CH).
8. Mr. Seshaehalapathi invited our attention to decisions of English Courts regarding the question of dedication and they are -- 'In re Norwich Town Close Estate Charity', (1889) 40 Ch D 293 (I) and -- 'In re Christchurch Inclosure Act' (1888) 38 Ch D 520 (J). We do not think that any assistance can be derived by a discussion of those cases. The really useful cases from which guidance can be got are -- 'Muthiah Chetti v. Perianan Chetti', AIR 1917 Mad 426 (K) and -- 'C. R. P. No. 816 of 1936 (Mad) (L)'. The former case related to a temple at Ilayathakudl in Ramnad district founded by Nattukottai Chetties and the question was whether it was a public temple or not. The dispute arose long prior to the passing of the Hindu Religious Endowments Act and the coming into existence of the definition of the term in Section 9(12). It was found there that the management of the temple was vested in the Ilayathakudi Kovil Nagarathars as certain families of the Nattu Kottai Chetties residing near the suit temple were styled. Wallis C. J. observes at p. 428 as follows :
"On the whole it cannot be said to be proved in this case that the temple was founded by the Nagarathars, and even if it was, it must have been founded by the whole community who settled at Ilayathakudi and not by the particular families which have continued to be attached to it. There is, therefore, in our opinion no case for holding that the temple is the private property of the Ilayathakudi Kovil Nagarathars. Even if it had been shown that the temple was founded for the use of this particular section of the caste, which consists of several families not shown to be otherwise than very distantly related to one another, we should, as at present advised, be inclined to hold that they are a section of the public and that Section 92 is applicable. 'Serious inconveniences would arise from holding that a temple of this kind was the private property of such a large body of persons as Ilayathakudi Kovil Nagarathars, and we think that such private ownership should be strictly proved'."
9. There is strong similarity between the temple discussed in the above decision and the present three temples. The learned Judges held that even if a village community has founded the temple, the community is nonetheless a section of the public and the temple is therefore, a public temple. In -- 'C. R. P. No. 816 of 1936 (Mad) (L)', Varadachariar and Mockett JJ. dealt with the Sri Puthugramom Viswanathaswami temple in Palghat taluk, and after calling for a finding from the District Judge, the learned Judges accepted the conclusions of the District Judge and held that the temple was a public temple. Like the present case, the Sri Puthugramom Viswanathaswami temple was also founded by the East Coast Brahmins who had settled down in the village of Puthugramom not very far away from the Nurani village itself, it was not disputed that the temple was exclusively managed by the villagers as a whole who have vested the executive control in a committee of five responsible to the village assembly and each Brahmin house was entitled to be represented by one member in the assembly.
Mr. Sundara Aiyar for the appellant urges that the finding arrived at by the District Judge in that case was (1) that the public, at any rate the Brahmin public, worship in the temple as of right and (2) that the idol was taken in procession on the occasion of certain festivals through the village; and that these factors constituted the basis for the Court coming to the conclusion that the institution was a temple as defined in Section 9(12), whereas in the present case, according to the learned counsel, there is no acceptable evidence of members of the public worshipping in the temples as of right. We shall presently discuss the evidence in the case; but in our opinion it is very difficult to find any distinguishing features between Putha-gramom Viswanathaswami temple and the three temples with which we are now concerned.
The learned Judge, Mr. Happen, as he then was, had exhaustively considered the evidence in the case as well as the applicability of the definition in Section 9(12) of the Act to that institution. The view put forward by the learned District Judge has not been dissented from by the learned Judges of the High Court who agreed with him that the temple was one falling within the definition in Section 9(12). of the Act. The essential requirements of a temple are that it should be a place dedicated to, or founded for, the benefit of the Hindu community, or a section of it, and should be used as a place of worship. We find great difficulty in distinguishing the judgment in -- 'C. R. P. No. 816 of 1936 (Mad) (L)', from the present case.
10. On behalf of the appellant very strong reliance is placed upon Ex. A.8, a judgment of a Pull Bench of the Chief Court of Cochin, wherein the question as to whether the Samoohakhars constitute a trust as contemplated by Section 523 of the Cochin Civil Procedure Code was considered. The learned Judges held that the properties held by the Palghatcherry Samooham, of which the Nurani Grama Jana Sangam was a part, did not belong to public trust. We have carefully perused that judgment and in our opinion even if the observations contained therein are relevant and admissible, still there is nothing there from which it can be said that the temples in question do not come within the definition. After all what was decided was that the Palghatcherry Samooham consisting of the Nurani and Thondikkulam people formed a corporate body capable of holding property and that to the Madham belonging to such a samooham, Section 523 of the Cochin Civil Procedure Code cannot apply. What fell for decision there was whether the madham situated in Cochin State was a trust created for public charitable or religious purposes and the finding arrived at was that it was not. Judgments marked in the case as Exs. A.4 and A.5 were also relied upon to show that the temples cannot be public temples. We do not see anything in these judgments which can be of any help in deciding the present case.
11. We shall now advert to the oral evidence which has been considered by the learned District Judge. P. W. 1, an inhabitant of Nurani village, deposes about the situation of the three temples and states that the Siva temple is the oldest and Ganesh temple was built only about fiteen years prior to the date of his deposition. According to him the Siva temple belonged to the villagers of Nurani and Thondikulam and in a litigation, O. S. No. 7 of 1904, Sub Court, Palghat, the half rights of the Thondikulam villagers had been purchased by the Nurani villagers with the result that at present the entire rights in the temple vest in the Nurani villagers, wnat is argued is that if it had been a public temple, there could have been no purchase of the rights of the Thondikulam villagers. P. W. 1 deposes to the fact that there is an inscription in a granite stone in front of the Ayyappan temple to the following effect: "Vengapattar Grama Yejeman".
According to the witness this shows that it belongs to the villagers. The witness further deposes that people who do not belong to the village are permitted to worship but they have no right to do so and the offerings made by them are also with permission. In cross examination this witness is not able to show any specific instances where anybody has been prevented from worshipping at the temples. The learned District Judge has extracted the relevant portions of his evidence in paragraphs 7 and 8 of his judgment and in our opinion this witness has not been able to sub-stantiate the fact that there was no dedication.
On the side of the respondent-Board, two witnesses have been examined. R. W. 1 a villager of Thondikulam whose closest relations are living in Nurani. has testified to the fact that no one has been obstructed from entering the temples to his knowledge and also that he has never been obstructed. He is unable to say whether anyone can enter the temple as a matter of right. B. W. 2 who belongs to Vennakara village near Nurani is in the habit of going and worshipping in these temples very often and making offerings. He never sought anyone's permission, nor has anybody obstructed him. from worshipping. He has been a municipal bill collector of the Palghat Municipality for 32 years. Prom the evidence of this witness one thing is clear and that is that ordinarily no Hindu asks for permission to worship in the temples and there are no instances of any devout Hindu being prohibited from worshipping in the temples. It may be as decided in --'AIR 1940 P. C. 7 (D)', that this by itself would not be sufficient for holding that the temples are public.
But the fact remains that the patta for the properties stands in the name of the Siva temple and that is an indication that there was dedication. We find no difficulty in agreeing with the learned District Judge that the villagers of Nurani constitute a section of the Hindu community and the same is not controverted at all and they used the temple as a matter of right. The temples are used as places of public religious worship and are used as of right By a section of the Hindu community as a place of religious worship. The facts and circumstances in the case bring the institutions within the meaing of definition of Section 9 (12) of the Act.
12. The following facts emerge from the above discussion :
1. The Nurani villagers are a section of the Hindu community and they have undisputed right of worship in the temples as a matter of right and do resort to them also.
2. There is no evidence whatever that any Hindu has been prevented from worshipping in the tem-ples and much less any villager of Nurani.
3. There is further no evidence that anybody sought permission to worship in the temples and according to the evidence of R. Ws. 1 and 2 neighbouring villagers also often worship and submit offerings.
From these circumstances we have to infer that there has been dedication of the temples if not to the entire Hindu community to a section of the Hindu community, and that would be sufficient to bring these institutions within the definition. The appeal, therefore, fails and is dismissed with costs.