Madras High CourtCommittee Of Management Of Institution ... vs President Of Board Of Commrs. For Hindu ... on 4 March, 1954Equivalent citations: AIR1954MAD1027, AIR 1954 MADRAS 1027JUDGMENT
 

Mack, J.1. This appeal has been filed by the committee of management of an institution known as the Bodendraswami Mutt, Govindapuram, by its managing member N. Ganesa Aiyar, a mirasdar in the Kunbakonam taluk, against an order of the District Judge underSection 84(1)of the Hindu Religious Endowments Act, declaring this institution to be a temple.In the first instance, the Hindu Religious Endowments Board claimed the institution to be a mutt and a right to levy contribution on this basis. On objection taken by the committee of management, the Board came to the conclusion that the institution was not a mutt but a temple. There can be no doubt that the institution had its origin in the tomb or Samadhi of one Bondendraswami, a holy man and a saint. To commemorate his memory, as is not unusual, a matam was constructed round the samadhi in which poojas and religious observances were being done. The main ground on which it was held to be not a mutt but a temple was that there were several big vigrahams or idols of Sri Gopalakrishna, Sri Rama, Lakshmana, Venugopal and Anjaneya and also pictures of Sri Radhakrishna, Panduranga and others, and that puja was being done not to the samadhi but to these idols and furthermore that the public were allowed to worship in the matam without any hindrance and that Utsavams were conducted and these deities taken in procession.2. The evidence for the committee of management was to the effect that no pooja as such was done to the idols but was offered only to the tomb' or samadhi. The presence of the idols or vigrahams was explained by the fact that religious minded persons, who worship these idols in their houses, kept them in the matam as they found that they could not keep up the pooja in their houses. The learned District Judge took the view that it made very little difference whether pooja was offered first to the Samadhi or to the vigrahams or the other way about, and that the performance of these festivals can have no connection at all with a Samadhi or tomb. He attached a good deal of importance to the fact that the public were allowed freedom of access to the Samadhi for purposes of worship.3. In -- 'Madras Hindu Religious Endowments Board v. Deivanai Ammal',  (A), Rajamannar C. J. and Venkatarama Aiyar J. con-firming the judgment of Krishnaswami Nayudu J. in a petition filed on the original side of the High Court, held that the mere fact that members of the public were allowed to worship in a temple is no ground to hold it to be a public temple. Reference in that decision was made to the observations of the Privy Council in --'Mundacheri Koman v. Atchuthan Nair', AIR 1934 PC 230 (B), that it was not in consonance with Hindu sentiment to exclude worshippers from a temple even when it is private. The case considered in -- ' (A), was that of a Vinayaka temple situated in China Bazar Road, Madras, which was successfully claimed as a private temple, although it had several broad features usually found in a public temple, such as taking out of deities in procession on special occasions, the existence of utsavamurtis and chaparanis, performance of regular pooja by a gurukkal and so on. The features of this institution, therefore, 011 which the learned District Judge based his decision will not necessarily make the institution a temple.4. Sri S. Viswanathan for the appellant has urged that a Samadhi or a tomb constructed to commemorate the memory and religious life --work of a human being can never fall into the category of a temple intended for the worship of God or Gods. "Temple" as defined inSection 9(12)of the Act means a place by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by, the Hindu community or any section thereof, as a place of religious worship. I find it extremely difficult to bring worship which has grown up round the tomb of a human being within the category of religious worship. Sri S. Viswanathan has contended that such commomo-rative observations in which the public participate may be described as hero worship or "any other form of worship but can, in no sense, according to Hindu religious notions, be put into the category of religious worship.I have been referred to the Supreme Court decision --'Saraswathi Ammal v. Rajagopal Ammal',  (C), in which it was held that perpetual dedication of property for worship at a tomb is not valid amongst Hindus.A number of Madras decisions were there referred to with approval, -- 'Kunhamutti v. Ahmad Musa-liar', AIR 1935 Mad 29 (D); --'Draiviasundaram Pillai v. Subramania Pillai',AIR 1945 Mad 217 (E) and -- "Veluswami Goundan v. Dandapani', AIR 1946 Mad 485 (F), for the position that the building of a samadhi or a tomb over the remains of a person and the making of the provision for the purpose of Gurupooja and other ceremonies in connection with the same cannot be recognise as a charitable or religious purpose according to Hindu law. This being the case, I find it difficult to appreciate in what legal manner a samadhi can ordinarily evolve into a temple for purposes of public religious worship as defined inSection 9(12)of the Act.Sri. S. Viswanathan has referred by way of anology ot the Thyagaraj Shrine at Tiruvayar, where there are commemorative festivals and observances on a very large scale to commemorate the memory of a great saint and composer of devotional songs. The learned District Judge endeavoured to justify his order by separating the religious festivals carried on in the matam round the samadhi from the samadhi itself. As it appears to me, the samadhi and the observances, which have grown up around it, are inseparable. The presence of idols of gods and recognised deities in the matam round the samadhi may be intended

merely to invest the observances in the samadhi with some religious significance in gratitude to a great supernatural power or powers for the life of a good man and saint.5. Sri Ramachandran on behalf of the Commissioner for Religious Endowments supports the lower  Court  on  the   strength   of   --'Ratnavelu Mudaliar   v.   Commr.for   Hindu   Religious   and Charitable Endowments',  (G). That was indeed the case of an ancient institution which originated in a samadhi.    Though it continued to retain traces of its origin and guru-pooja was performed in the precincts the same learned Bench Rajmannar C. J. and Venkatarama Aiyar J. confirming a judgment of Krishnaswami Naydu J. also on the original side of the High Court, held it to be a temple within the scope ofSection 9(12).    The facts of that case were however peculiar and different from those  in the present case.    So  long  ago as  7-8-1860  the  Government made a grant in favour of Chidambaraswami, who founded that institution.   He was described as the founder of the "Apparswami pagoda" and not of the "Apparswami Samadhi".    Since then, it was treated  admittedly  in   various  proceedings  as  a temple.    The  facts  of  that  case  can  easily  be differentiated  from the present  one in which a claim is made for the first time that this admitted samadhi has now evolved into a temple.   In that decision,   the   following   observations  of   Varada-chariar J. in -- 'Board of Commrs.for theHindu Religious  Endowments  v.   P.   Narasimham,  AIR 1939 Mad 134  (H)  were quoted with approval."That what the evidence in this case describes as taking place in connection with the institution is public worship can admit of  no doubt. We think it is also religious.    The test is not whether  it  conforms to  any  particular school of Agama Sastras;  we think that the question must be decided with reference to the view of the class of people who take part in the worship.   If they believe in its religious efficacy, in the sense that by such worship, they are making themselves  the  object of   the   bounty   of  some superhuman power,  it must be  regarded  as a religious worship."Even if this very broad test were to be applied to the present case, I am not prepared to hold that the mere presence of some idols and the festivals, which have grown round the samadhi of Bodendra-swami, inevitable in the case of all tombs of saints and great men in this country, would bring it within the definition of a temple as defined inSection 9 (12). For these reasons, I would set aside the order of the District Judge and hold that this institution is not a public temple as defined inSection 9(12)of the Act.6. The appeal is allowed with costs.