His Holiness Sri Vishwothama Thirtha
Swamiar of Sode Mutt Vs. The State of Mysore [1961] INSC 357 (18 December 1961)
ACT:
Temple-Large number of pilgrims visiting and
worshiping-If private or public-Madras Temple Entry Authorization Act,
1947(Mad. V. of 1947), s. 2(1).
HEADNOTE:
The shrine in suit which was originally
founded by Shri Madhavacharya, a Hindu saint was managed for a long time in
rotation by the heads of eight Mutts which were also founded by the said saint
for eight of his disciples. Large number of pilgrims from all over the country
visited this shrine without any restraint, took part in the worship there, made
offerings to the deity and received the prasad. The institution was managed
with the monetary aid received from the State and contributions raised by the
said heads of the eight Mutts from devotees resident in different parts of the
country. The question arising for decision was whether the shrine in question
was a "temple" within the meaning of s. 2(1) of the Madras Temple
Entry Authorization Act, 1947.
^ Held, that in the absence of good evidence
that a temple was a private one, the mere fact that it was visited by a large
number of persons among the Hindu Public without any restraint for a number of
years, was good evidence of the fact that the temple had been dedicated to the
Hindu Public and was for its benefit.
Vibhudapriya v. Lakshmindra, (1927) L. R. 54
I. A. 228, referred to. Babu Bhagwan Din v. Gir Har Saroop, (1939) L. R. 67 I. A. 1, and Sri Venkataramana Devarau v. State of Mysore, [1958] S.C.R. 895, followed.
In the instant case the finding that the
Hindu Public had a right to worship in the temple was sufficient to make the
institution a "temple" within the definition of that term in the Act
even if the temple be appurtenant to a Mutt.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 84 of 1959.
Appeal from the judgment and decree dated August 17, 1954, of the Madras High Court in A. S. No. 304 of 1951, 190 A. V. Viswanatha
Sastri and R. Gopalakrishnan, for the appellants.
B. R. L. Iyengar and T. M. Sen, for
respondent No. 1, 1961. December 18. The Judgment of the Court was delivered by
RAGHUBAR DAYAL, J.-The only question for determination in this appeal on a
certificate granted by the Madras High Court is whether what has been described
in the plaint as Shri Krishna Mutt in Shivalli Village, in South Kanara
District, is a temple as defined in s. 2(1) of the Madras Temple Entry
Authorization Act, 1947 (Madras Act V of 1947), hereinafter called the Act.
Sub-section (1) of s. 2 of the Act reads :
"`temple' means a place, by whatever
name known, which is dedicated to, or for the benefit of, or used as of right
by, the Hindu community or any section thereof, as a place of public religious
worship, and includes subsidiary shrines and mantapams attached to such place
;" The Government of Madras, in exercise of the powers conferred on them
under s. 6 of the Act, decided on June 3, 1948, that Shri Krishna Mutt was a
temple. The plaintiffs, who represent the heads of six of the eight mutts
established at Udipi by Shri Madvacharya, instituted the suit for declaration
that the Shri Krishna Mutt (not one of the eight mutts) was not such a temple
and for the setting aside of the order of the Government of Madras. The heads
of the other two mutts were impleaded as defendants Nos. 2 and 3. The State of
Madras is defendant No. 1.
The State of Madras alone contested the suit
and stated that the Shri Krishna Mutt was a temple as defined in the Act. The
Trial Court and the High court held in favour of the defendant's 191 contention
with the result that the plaintiff's suit stood dismissed. The plaintiffs have
therefore come up in appeal.
The case of the plaintiffs-appellants as
disclosed in the plaint may first be stated. The great Saint and Savant Shri
Madvacharya established the Mutt at Udipi in South Kanara District, for the
propagation of the Dwaita system of thought. He himself resided there. He
initiated eight disciples and thus originated the `Astha Mutts' (eight mutts)
of Udipi. These disciples had to reside, in the mutts and engage themselves in
the study and propagation of learning.
The way in which the image of Shri Krishna
was installed in the Mutt is described thus :
"That the `Shri Madva Vijaya', the life
history of the great teacher has it, that the Shri Krishna's image was acquired
from a heap of Gopi Chandan from Dwarka brought by the sailors of a native
craft which got stranded near Malpe where the teacher used to go every morning
for his ablutions and tapas.
Tradition has it that the image is the same
that had been worshipped by Rukmini at Dwaraka in pre-historic days. The image
was consecrated and installed by the great teacher in his mutt at Udipi and he
began to worship it. This according to history and tradition is the origin of
what came to be called popularly the Shri Krishna Mutt at Udipi." Shri
Madvacharya, who installed the consecrated idol in a shrine of his Mutt,
worshipped it during his life-time and ordained that the worship be continued
by one or other of his eight disciples.
In order to regularise the worship of Shri
Krishna and to give equal opportunities to the eight disciples it was arranged
that the worship be conducted by each of the disciples by rotation (pariyayam).
Worship has continued according to this system for the several 192 centuries
that the Shrine has been in existence.
The head of each of the eight mutts conducts
the worship for a period of two years. During this period he occupies the Gadi
or the seat of Shri Madvacharya and is called the Pariyayam Swami.
The other seven heads of the mutts, when free
from the duty of worshipping the image of Sri Krishna, began to take their
abode in the vicinity of the Mutt and thus came into existence the eight
independent mutts, though the main Mutt started by Shri Madvacharya, who
consecrated and installed the Shri Krishna image, continued as the Shri Krishna
Mutt of Udipi.
The Pariyayam Swami meets the expenses of the
worship and other incidental expenses from the income of his own mutt and the
income of the Shri Krishna Mutt. He conducts the worship himself.
Shri Krishna Mutt is a shrine attached to the
ancient Mutt started by Shri Madvacharya and is not a place of public worship.
It has no individual existence apart from the Mutt. The shrine is not a place
dedicated to, or for the benefit of, or used as of right by, the Hindu
community in general, as a place of public religious Worship, but is intended
for the Worship of the eight disciples only. It is however stated, in the Words
of the plaint that `worship by others could be offered only through Pariyayam
Swami, with his consent and as a part of his ordinary worship.' Defendants Nos.
2 and 3, the heads of the two other mutts excluding the mutts of the
plaintiffs, accepted the plaintiffs' case to be correct. The contesting
defendant, the State of Madras, denied that the Shri Krishna Shrine is just a
temple attached to the ancient must started by Shri Madvacharya. It is stated
that it is one of the most important temples in India, that it attracts a large
body of worshippers from throughout the 193 country, that the Hindu public
worship there as of right and that considerable offerings are made to the
temple. It is denied that the temple is intended only for the worship of the
eight swamiyars.
The learned Judges of the High Court
delivered separate Judgments, but, in the main, agreed in the finding that the
shrine in suit was a temple within the meaning of s. 2(1) of the Act, in view
of the following considerations: (1) This institution had been referred to, by
authoritative authors and in judicial pronouncements as Krishna temple. (2) The
plaintiffs themselves stated in sub-paragraph (7) of paragraph 3 of the plaint
that the Pariyayam Swami had the incontestable right to exclude anybody,
including even the other Swamiyars of the eight mutts from the Shri Kishna Dev
Temple during the period of his pariyayam. (3) The various documents by which
certain properties had been endowed to this institution, refer to it as the
temple. (4) The statements of the witnesses for the plaintiffs make it clear
that Hindus in general, without any restriction, worship the deity, that
different individuals had endowed permanent sevas, that the pilgrims include
persons other than the followers of Shri Madvacharya and that during certain
utsavs, thousands of Madvas and non-Madvas, Brahmins and non-Brahmins, attend
the festival and the pilgrims put their money offerings in a box in front of
the deity, (5) The inscriptions within the temple and the buildings near about
show that this was not a private shrine appurtenant to the Mutt, but was a
public institution under the general supervision of the Hindu sovereigns of
that area. (6) The pamphlet issued for the help of the pilgrims, Exhibit B-10
states that all the pilgrims are invited to participate in the worship of the
deity, which is done as many as nine times a day, and to make offerings. It
gives details of the various 194 kinds of sevas which could be offered by the
devotees and the fees for each are to be determined by the Pariayayam Swami. It
also states that the Pariyaya Mutt would arrange for homas, Udyapana,
Thulabhara, Brahmopadesa, Annaprasana and Namakarana ceremonies for the benefit
of the devotees on payment of the perscribed amounts and that the devotees
could endow sums of money for burning Nanda Deepa and Deepa Sthamba throughout
the year, (7) The predominant feature of the institution has been held to be
the service or worship of Shri Krishna and not the propagation of religious
knowledge of the system of philosophy propounded by Shri Madvacharya, The
learned Judges were of opinion that the facts that the system of worship in
this temple, is different from the system in other temples that persons
visiting the Pariyayam festival are fed and religious discourses are given on
the occasion and that the swamiyars of the eight mutts had been interred in the
compound near the temple, did not adversely affect the conclusion from the
other circumstances that the Shrine is a temple to which the Hindus in general
could go for worship as a matter of right.
On one point regarding Shri Madvacharya
having a Mutt of his own, the learned Judges of the High Court appear to have
had different views.
Govinda Menon J., said :
"It is seen that the present institution
is far famed throughout the length and breadth of India and the large concourse
of people resort to this place for worship and there is nothing to show that
the Swamiars have treated this institution as their private property or
anything of the kind. The admissions of P.W, 2 as well as the other witnesses
point to the fact that the temple is one intended for 195 the benefit of the
public and that public resort to it for religious worship and that though the
image of Sri Krishna was installed by Madhwacharya in his own residence or
lodging subsequent course of conduct during the centuries have made this abode
of Sri Krishna a public temple." He also stated, at another place in his
judgment, "As I have stated already, originally there was a mutt and
subsequent to the installation of the image of Lord Krishna there by Sri
Madhwacharya it has grown up by centuries of public worship into a public
institution." Ramaswami J., has expressed himself differently on the
question that Sri Madhvacharya had a mutt and installed the deity in it. He
states, when considering the statement in Chapter 9 of the Madhwa Vijaya to the
effect that Sri Madvacharya sportively brought the image to the Mutt, "The
Math referred to in the 42nd stanza must obviously mean the Kshetra of
Anantheswara which is referred to as Roopya in Sampradaya Paddhati of
Hrishikesha Thirtha. The reason is, as well pointed out by the learned
Subordinate Judge, that as Achyuta Preksha had taken his abode in that Kshetra
and was engaged in teaching to his disciples therein, this Kshetra must have
been referred to as the Math as by that time it is nowhere established that
Madhwacharya had established a Math of his own and the teaching should have all
been done in the temple of Anantheswara itself, Therefore, the Math referred to
must be the temple of Anantheswara. This receives corroboration in two ways. In
the end of Madhwa Vijayam, it is stated that while expounding Aittariyopanishat
to his Sishyas in 196 the temple of Anantheswara, the Acharya is stated to have
disappeared from mundane existence. In fact even today the seat which is said
to have been used by Sri Madhwacharya is shown to the pilgrims. Secondly, that
the Anantheswara temple was the seat of teaching by Madhwacharya receives
corroboration and therefore separate Krishna Math could not have existed is
seen from the importance attaching to Anantheswara even today.
Anantheswara is considered to be the holder
of the Muli right and Sri Krishna is treated as his tenant." Learned
counsel for the appellants submitted that the reference to the institution as a
temple by the authoritative authors and in judicial pronouncements was really
in a general sence, the institution being a temple in the usual sence of the
terms as it is a shrine in which the idol of Sri Krishna is installed and is
worshipped. His contention is that it is not a temple as defined in the Act, as
the Hindus in general, or any section of the Hindus, had no right to worship
there and that the fact that a number of pilgrims ordinarily visit the temple
for worship is not inconsistent with the temple being a private one and not
dedicated to the Hindus in general or a section of them. He pointed out that
Ramaswami J., was wrong in stating:
".......P.W.1, the Matadhipathi of the
Bhandrikere Mutt, had to admit in cross- examination the public participation
as of right in the worship of the temple without the permission of the Paryaya
Swami, thereby giving they go-by to the plaint allegations to make out that
this is a private chaple." This is correct, but does not materially affect
the decision as such a conclusion from the statement could be arrived at. 197
We agree with the view of the learned Judges of the High Court that the shrine
in suit is a temple as defined in s. 2 (1) of the Act.
The evidence on record is fully consistent
with the findings of the Courts below that this temple is a place dedicated to
the Hindu public and is used by them as a place of public religious worship. It
is not disputed that a large number of pilgrims from all over the country visit
this place, take part in the worship there, make offerings to the deity and
receive the prasad. The institution also receives monetary aid from the State.
In Vibhudapriya v. Lakshmindra (1) is quoted
at page 232, an extract from the South Kanara Manual published under the
authority of Government. The extract reads :
"The temple of Krishna, at Udipi, is
said to have been founded by Madhavacharya him-self who set up in it the image
of Krishna originally made by Arjuna and miraculously obtained from a vessel
wrecked on the coast of Tuluva.............Besides the temple at Udipi he
established eight `Mathas' or sacred houses, each presided over by a Sanyasi or
Swami. These exist to this day and each Swami in turn presides over the temple
of Krishna for a period of two years and spends the intervening fourteen years
touring throughout Kanara and the adjacent parts of Mysore levying
contributions from the faithful for the expenses of his next two years of
office, which are very heavy as he has to defray not only the expenses of the
public worship and of the temple and Matha establishments, but must also feed
every Brahman who comes to the place." It is clear from this extract that
the various Swamis tour about the country realising contributions from the
devotees for the expenses which 198 each of them has to incur during the period
of his pariyayam, that the expenses which he has to incur during the period are
heavy. The expenses are met out of the income during the two years of his
pariyayam from the State aid and the offerings of pilgrims and income of his
own mutt. The fact of raising contributions from the devotees resident in
different parts of the country is clear proof of the fact that such devotees
have a right to visit the temple and to worship there. If they have no such
right, it is improbable that they would be visited by the Swamis for
contributions.
The fact that no instance of any pilgrim
being refused permission to worship during the course of the centuries since
the installation of the deity goes a long way in establishing and supporting
the finding of the Court below that the institution has been held out as one
for the benefit of the Hindus and that the Hindus in general have gone to it
for worship in exercise of their right of worship and not on account of the
permission, express or implied, of the Pariyayam Swami.
It is true that the fact that a number of
pilgrims visit the temple for worship regularly need not, in all cases, lead to
the conclusion that the temple is a public one; but such a conclusion will not
be arrived at only when there is good evidence about the temple being a private
one. This is really what was held in Babu Bhagwan Din v. Gir Har Saroop (1) to
which reference has been made by the learned counsel. The Privy Council, in
that case, after coming to the conclusion that the general effect of the
evidence was that the family had treated the temple as family property,
dividing the various forms of profit, whether offerings or rents, closing it so
as to exclude the public from worship when marriage or other ceremonies
required the attendance of the members of the family at its 199 original home
and erecting samadhs to the honour of its, dead, said at page 9:
"In these circumstances, it is not
enough in their Lordships' opinion, to deprive the family of their private
property to show that Hindus willing to worship have never been turned away, or
even that the deity has acquired considerable popularity among Hindus of the
locality or among persons resorting to the annual mela. Worshippers are
naturally welcome at a temple because of the offerings they bring and the
repute they give to the idol; they do not have to be turned away on pain of
forfeiture of the temple property as having become property belonging to a
public trust. Facts and circumstances, in order to be accepted as sufficient
proof of dedication of a temple as a public temple, must be considered in their
historical setting in such a case as the present; and dedication to the public
is not to be readily inferred when it is known that the temple property was
acquired by grant to an individual or family." It follows, therefore, that
in the absence of goon evidence that a temple is a private one, the mere fact
that it is visited by a large number of persons among the Hindu public without
any restrain for a number of years, will be good evidence of the fact that the
temple had been dedicated to the Hindu public and was for its benefit.
Reference may usefully be made to the case
reported as Sri Venkataramana Devaru, v. The State of Mysore. (1) In this case,
a temple was founded for the benefit of Gowda Saraswath Brahmins, who managed
it throughout. They were the followers of the Kashi Mutt. The head of that Mutt
performed various religious ceremonies in the temple. It was alleged that persons
who were not 200 Gowda Saraswath Brahmins could not enter without the
permission of the trustees. However, there was no instance in which such
permission was refused.
There was evidence that all communities had
been freely admitted into the temple. It was contended that the free admission
of all communities and there being no instance of any refusal of permission,
led to the conclusion that the Hindu public generally had a right to worship in
the temple. In considering this contention, it was said at page 907 :
"The law on the subject is well settled.
When there is a question as to the nature and
extent of a dedication of a temple, that has to be determined on the terms of
the deed of endowment if that is available, and where it is not, on other materials
legally admissible; and proof of long and uninterrupted user would be cogent
evidence of the terms thereof. Where, therefore, the original deed of endowment
is not available and it is found that all persons are freely worshipping in the
temple without let or hindrance, it would be a proper inference to make that
they do so as a matter of right, and that the original foundation was for their
benefit as well. But where it is proved by production of the deed of endowment
or otherwise that the original dedication was for the benefit of a particular
community, the fact that members of other communities were allowed freely to
worship cannot lead to the inference that the dedication was for their benefit
as well. For, as observed in Babu Bhagwan Din v. Gir Har Saroop (67 I.A. 1),
`it would not in general be consonant with Hindu sentiments or practice that
worshippers should be turned away'." There is no documentary evidence in
this case for supporting the contention of the appellants 201 that the temple
was originally founded for the private use of Shri Madvacharya and his
disciples.
In the absence of such evidence, the long
user of the temple by the Hindus in general, together with there being no
instance of anybody having been refused permission, must lead to the conclusion
and support the finding that the temple had been dedicated to the Hindus in
general, and was for their benefit.
Further, there is no evidence on record, oral
or documentary, of course oral was not possible, of the fact that Shri Madvacharya
had a Mutt of his own prior to his obtaining the idol of Sri Krishna which he
installed in this temple. He is said to have set up eight different Mutts, each
for one of his eight disciples. All these eight Mutts have particular names. No
Mutt is named after Sri Madvacharya. Ramaswami J., has given good reasons for
the view that Sri Madavcharya had no Mutt of his own. A primary Mutt associated
with the founder himself must have and independent permanent head. There is no
such Matathipathi or head of this so-called Mutt. One of the eight swamis, the
heads of the Asth Mutts, acts as head or manager of this institution for a
period of two years. The absence of a head and this system of a head or manager
being appointed by rotation, very clearly point to the conclusion that the
institution in suit is neither a Mutt nor a temple appurtenent to a Mutt.
In 1937, the Board of Commissioners for the
Hindu Religious Endowments, Madras, passed an order under s. 84 of the Madras
Hindu Religious Endowments Act, 1926 (Act II of 1927), that this institution
was not a temple as defined in that Act, but was a place of worship appurtenant
to Sri Krishna Devaru Math, Shivalli, Udipi Taluk, South Kanara, District. It
has been urged for the appellant that this order bars any further enquiry and a
202 different conclusion under the Act with respect to the nature of this
institution. The Courts below have held against this contention and, we think,
rightly. The finding of the Board was, in their own words:
"Our decision that the institution is
appurtenant to a math and forms part of it can in no wise affect the rights of
the deity to the properties owned by it and the rights of the Hindu public to
worship direct, subject to the regulations prescribed by the Paryayam Swamiar
for the time being. We hold that it is not a temple as defined in the Act, but
it is a place of worship appurtenant to the Math." The finding that the
Hindu public had a right to worship in this temple is sufficient to make the
institution a temple within the definition of that term in the Act (Madras Act
V of 1947), even if the temple be appurtenant to a Mutt. The Board's order,
therefore, cannot affect the consideration of the question of the institution
being a temple within the meaning of the definition in the Act.
We are therefore of opinion that the Courts
below have come to the correct conclusion that the institution in suit is a
temple within the meaning of the word "temple" in the Act and that
the appeal should fail. We accordingly dismiss the appeal with costs.
Appeal dismissed.
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