# SRI VENKATARAMANA DEVARU AND OTHERS v. THE STATE OF MYSORE AND OTHERS

- **Citation:** [1958] 1 S.C.R. 895
- **Court:** Supreme Court of India
- **Decided:** 1958
- **Case number:** Civil Appeal No. 403 of 1956
- **Bench:** s. R. DAS c. J, Venkatarama Aiyar, Jafer Imam, A. K. Sarkar, Vivian Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sri-venkataramana-devaru-and-others-v-the-state-of-mysore-and-others-1441
- **Pages:** 28

## Headnote

895
Temple Entry, Authorisation of-Validity of enactment
-Denominational right, if subject to general right of the
Hindu public-'Matters of religion', Meaning o)'-Madras
Temple Entry Authorisation Act (V of 1947), ss. 2 (2), 3Constitution of India, Arts. 25(2) (b), 26(b);
This was an appeal by the trustees of the ancient and
.renowned temple of Sri Venkataramana of Moolky Petta,
who were managing the temple on behalf of the Gowda
Saraswath Brahmins in accordance with a Scheme framed
in a suit under s. 92 of the Code of Civil Procedure. After
the passing of the Madras Temple Entry Authorisation Act
(Madras V of 1947), which had for its object the removal
of the disability of Harijans from entering into Hindu public temples, the trustees made a representation to the
Government that the temple was a private one, and, therefore, outside the operation of the Act. But the Government did not accept that position and held that the act applied to the temple. Thereupon the trustees brought th!
suit, out of which the appeal arises, for a declaration that
the temple was not one as defined by s. 2 (2) of the Act but
was a denominational one having been founded exclusively
for the Gowda Saraswath Brahmins. It was contended
that s. 3 of the Act was void as being repugnant to Art.
26(b) of the Constitution which vouchsafed to a religious
denomination the right to manage its own affairs in matters
of religion. The trial court found against the appellants.
It held t)lat matters of religion did not include rituals and
ceremonies. But on appeal the High Court while holding
that the public were entitled to worship in the temple,
passed a limited degree in favour of the appellants by reserving to the latter the right to exclude the general public
during certain ceremonies in which the members of ~he
denomination alone were entitled to participate. The
question for decision was whether the rights of a religious
denomination to manage its own affairs in matters of religion under Art. 26 (b) can be subjected to, and controlled
by, a law protected by Art. 25 (2) (b) of the Constitution.
Held, that the expression "religious institutions of a
public character" occurring in Art. 25 (2) (b) of the Constitution contemplates not merely temples dedicated to the
114
1957
November &.
896
SUPREME COURT REPORTS
[1958]
1957
public as a whole but also those founded for the benefit
.
-
of sections thereof and includes denominational temple• as
Sri Venkataramana well. While Art. 25 (1) deals with the rights of individuals
DevaruandOthcrs and Art. 26(b) with those of religious denominations, Art.
Th Sv.
if
25 (2) covers a much wider ground and controls both.
Myso:. .• ~"je/j1hm Article 26(b) must, therefore, be read subject to Art. 25(2) ·
(b) of the Constitution.
Although the right to enter a temple for purposes of
worship protected by Art. 25 (2) (b) must be construed
liberally in favour of the public, that does not mean that
that right is absolute and unlimited in character. It must
necessarily be subject to such limitation or regulation as
arises in the process of harmonising it with the right protected by Art. 26 (b).
Where the denominational rights
claimed are not such as can nullify or substantially reduce
the right conferred by Art. 25 (2) (b), that Article should
be so construed as to give effect to them, leaving the rights
of the public in other respects unaffected.
The expression 'matters of religion' occurring in Art.
26 (b) of the Constitution includes practices which are regarded by the community as part of its religion and under
the ceremonial Jaw pertaining to temples, who are entitled
to enter into them for worship and where they are entitled
to stand for worship and how the worship is to be conducted
are all matters of religion.
The
Commissioner,
Hindu
Religious
Endowments,
Madras v. Sri Lakshimindra Tirtha Swamiar of Sri Shiru,.
Mutt, (1954) S.C.R. 1005; Gopala Muppanar v. Subramania
Aiyar, (1914) 27 M.L.J. 253 and Sankaralinga Nadan v.
Raja Rajesw

## Text

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S.C.R.
SUPREME COURT REPORTS
SRI VENKATARAMANA DEVARU
AND OTHERS
v.
THE STATE OF MYSORE AND OTHERS
(with connected petition)
( s. R. DAS c. J., VENKATARAMA AIYAR, JAFER
IMAM, A. K. SARKAR AND VIVIAN BOSE JJ.)
895
Temple Entry, Authorisation of-Validity of enactment
-Denominational right, if subject to general right of the
Hindu public-'Matters of religion', Meaning o)'-Madras
Temple Entry Authorisation Act (V of 1947), ss. 2 (2), 3Constitution of India, Arts. 25(2) (b), 26(b);
This was an appeal by the trustees of the ancient and
.renowned temple of Sri Venkataramana of Moolky Petta,
who were managing the temple on behalf of the Gowda
Saraswath Brahmins in accordance with a Scheme framed
in a suit under s. 92 of the Code of Civil Procedure. After
the passing of the Madras Temple Entry Authorisation Act
(Madras V of 1947), which had for its object the removal
of the disability of Harijans from entering into Hindu public temples, the trustees made a representation to the
Government that the temple was a private one, and, therefore, outside the operation of the Act. But the Government did not accept that position and held that the act applied to the temple. Thereupon the trustees brought th!
suit, out of which the appeal arises, for a declaration that
the temple was not one as defined by s. 2 (2) of the Act but
was a denominational one having been founded exclusively
for the Gowda Saraswath Brahmins. It was contended
that s. 3 of the Act was void as being repugnant to Art.
26(b) of the Constitution which vouchsafed to a religious
denomination the right to manage its own affairs in matters
of religion. The trial court found against the appellants.
It held t)lat matters of religion did not include rituals and
ceremonies. But on appeal the High Court while holding
that the public were entitled to worship in the temple,
passed a limited degree in favour of the appellants by reserving to the latter the right to exclude the general public
during certain ceremonies in which the members of ~he
denomination alone were entitled to participate. The
question for decision was whether the rights of a religious
denomination to manage its own affairs in matters of religion under Art. 26 (b) can be subjected to, and controlled
by, a law protected by Art. 25 (2) (b) of the Constitution.
Held, that the expression "religious institutions of a
public character" occurring in Art. 25 (2) (b) of the Constitution contemplates not merely temples dedicated to the
114
1957
November &.
896
SUPREME COURT REPORTS
[1958]
1957
public as a whole but also those founded for the benefit
.
-
of sections thereof and includes denominational temple• as
Sri Venkataramana well. While Art. 25 (1) deals with the rights of individuals
DevaruandOthcrs and Art. 26(b) with those of religious denominations, Art.
Th Sv.
if
25 (2) covers a much wider ground and controls both.
Myso:. .• ~"je/j1hm Article 26(b) must, therefore, be read subject to Art. 25(2) ·
(b) of the Constitution.
Although the right to enter a temple for purposes of
worship protected by Art. 25 (2) (b) must be construed
liberally in favour of the public, that does not mean that
that right is absolute and unlimited in character. It must
necessarily be subject to such limitation or regulation as
arises in the process of harmonising it with the right protected by Art. 26 (b).
Where the denominational rights
claimed are not such as can nullify or substantially reduce
the right conferred by Art. 25 (2) (b), that Article should
be so construed as to give effect to them, leaving the rights
of the public in other respects unaffected.
The expression 'matters of religion' occurring in Art.
26 (b) of the Constitution includes practices which are regarded by the community as part of its religion and under
the ceremonial Jaw pertaining to temples, who are entitled
to enter into them for worship and where they are entitled
to stand for worship and how the worship is to be conducted
are all matters of religion.
The
Commissioner,
Hindu
Religious
Endowments,
Madras v. Sri Lakshimindra Tirtha Swamiar of Sri Shiru,.
Mutt, (1954) S.C.R. 1005; Gopala Muppanar v. Subramania
Aiyar, (1914) 27 M.L.J. 253 and Sankaralinga Nadan v.
Raja Rajeswara Dorai, (1908) L.R. 35 I.A. 176, referred to.
Held further, that it is well settled that where the
original dedication is proved to have been for the benefit
of a particular community the fact that members of other
communities were allowed to worship cannot lead to the
inference that the dedication was also for their benefit.
Babu Bhagwan Din v. Gir Har Saroop, (1939) L.R. 67
I.A.: 1, referred to.
CIVIL
APPELLATE
JURISDICTION : Civil Appeal
No. 403 of 1956.
Appeal from the judgment and order dated April
lL 1956, of the Madras High Court in Appeal No. 145
of 1952, arising out of the judgment and decree dated
March, 31, 1951 of the Court of the Subordinate
Judge, South Kanara in Original Suit No. 24 of 1949.
M. K. Nambiyar, M. L. Naik, J. B. Dadachanji,
S. N. Andley, Rameshwar Nath and P. L. Vohra, for
the appellant in C.A. No. 403 of 1956 and respondents
in special leave Petition No. 327 of 57.
S.C.R.
SUPREME COURT REPORTS
897
C. K. Daphtary, Solicitor-General of India, B. R. L.
1957
Iyengar and T. M. Sen, for the respondents in C.A. Sri Venkataramana
No. 403 of 56 and petitioner in special leave petition Devaru and Others
No. 327 of 1957.
.
The ;;ate of
1957. November 8. The followmg Judgment ofMyso1·e and Others
the Court was delivered by
Venkatarama
VENKATARAMA AIYAR J.-. The substantial question
Aiyar J.
of law, which arises for decision in this appeal, is
whether the. right of a religious denomination to manage its own affairs in matters of religion guaranteed
under Art. 26(b), is subject to, and can be controlled
by, a law protected by Art, 25(2)(b), throwing open
a Hindu public temple to all classes and sections of
Hindus.
In the District of South Kanara which formed
until recently part of the State of Madras and is now
comprised in the State of Mysore, there is a group of
three villages, Ma:nnampady, Bappanad and Karnad
collectively known as Moolky Petah; and in the village
of Mannampady, there is an ancient temple dedicated
to Sri Venkataramana, renowned for its sanctity. It
is this institution and its trustees, who are the appellants before us. The trustees are all of them members
of a sect known as Gowda Saraswath Brahmins. It is
said that the home of this community in the distant
past was Kashmir, that the members thereof migrated
thence to Mithila and Bihar, and finally moved south·
wards. and settled in the region around Goa in sixty
villages. They continued to retain their individuality
in their new surroundings, spoke a language of their
own called Konkani, married only amongst themselves, and worshipped idols which they had brought
with them. Subsequently, owing to persecution by
the Portuguese, they migrated further south, some of
them settling at Bhatkal and others in Cochin. Later
on, a chieftain who was ruling over the Moolky area
brought five of these families from Bhatkal, settled
them at Mannampady, erected a temple for their benefit and installed their idol therein, which came to be
known as Tirumalaivaru or Venkataramana, and endowed lands therefor. In course of time, other
898
SUPREME COURT REPORTS
[1958]
1957
families of Gowda Saraswath Brahmins would appear
/iri venkataramanato have settled in the three villages constituting
DevaruandOthersMoolky, and the temple came to be managed by memThe ;,~,, of hers of this community residing in those villags.
Mysore and Others
In 1915, a suit, 0. S. No. 26 of 1915, was instituted
venkararama
in the Court of the Subordinate Judge of South Kanara
Aiyar J.
under s. 92 of the Code of Civil Procedure for framing
a scheme for this temple. Exhibit A-6 is the decree
passed in that suit. It begins by declaring that "Shri
Venkataramana temple of Moolky situated in the village of Mannampadi, Nadisal Mangane, Mangalore
taluk is an ancient institution belonging to the Gowda
Saraswath Brahmin community, i.e., the community
to which the parties to the suit belong residing in the
Moolky Petah, i.e., the villages of Bappanad, Karnad
and Mannampadi according to the existing survey
demarcation". Clause 2 of the decree vests the general control and management of the affairs of the temple, both secular and religious, in the members of that
community. Clause 3 provides for the actual management being carried on by a Board of Trustees to be
elected by the members of the community aforesaid
from among themselves. Then follow elaborate provisions relating to preparation of register of electors.
convening of meetings of the general body and holding of elections of trustees. This decree was passed
on March 9, 1921, and it is common ground that the
temple has.ever since been managed in accordance
with the provisions of the scheme contained therein.
This was the position when the Madras Temple
Entry Authorisation Act (Madras V of 1947), hereinafter referred to as the Act, was passed by the Legislature of the Province of Madras. It will be useful at
this stage to set out the relevant provisions of the Act,
as it is the validity of s. 3 thereof that is the main
point for determination in this appeal. The preamble
to the Act recites that the policy of the Provincial
Government was "to remove the disabilities imposed
by custom or usage on certain classes of Hindus
against entry into Hindu temples in the Province
which are open to the general Hindu public". Section
S.C.R.
SUPREME COURT REPORTS
899
2(2) defines 'temple' as "a place by whatever name
1957
known, which is dedicated to or for the benefit of or Sri venkataramana
used as of right by the Hindu community in generaIDevaru and Others
as a place of-public religious worship". Section 3(1)
Tiie ;,~te of
enacts that,
Mysore and Others
"Notwithstanding any law, custom or usage to the
Venkatarama
contrary, persons belonging to the excluded classes
Aiyar 1.
shall ·be entitled to enter any Hindu temple and offer
worship therein in the same manner and to the same
extent as Hindus in general; and no member of any
excluded class shall, by reason only of such entry or
worship, whether before or after the commencement
of this Act, be deemed to have committed any actionable wrong or offence or be sued or prosecuted therefor."
Section 6 of the Act provides that,
"If any question arises as to whether a place is or
is not a temple as defined in this A:ct, the question
should be referred to the Provincial Government and
· their decision shall be final, subject however to any
decree passed by a competent civil court irt a suit filed
before it within silt months from the date of the decision of the Provincial Government". It is the contention of the appellants-and that, in our opinion, is wellfounded-that the true intent of this enactment as
manifest in the above provisions was to remove the
disability imposed on Harijans from entering into
temples, which were dedicated to the Hindu public
generally.
Apprehending that action might be taken to put
the provisions of this Act in operation with reference
to the suit temple, the trustees thereof sent a memorial to the Government of Madras claiming that it
was a private temple belonging exclusively to the
Gowda Saraswath Brahmins, and that it therefore did
not fall within the purview of the Act. On this, the
Government passed an order on June 25, 1948, Exhibit
B-13, that the temple was one which was open to all
Hindus generally, and that the Act would be applicable to it. Thereupon, the trustees filed the suit, out
of which the present appeal arises, for a declaration
900
SUPREME COURT REPORTS
[1958]
1957
that the Sri Venkataramana temple at Moolky was not
Sri Venkataramanaa temple as defined in s. 2(2) of the Act. It was alDevaru and Othersieged in the plaint that the temple was founded for
T'h sv.
.r the benefit of the Gowda Saraswath Brahmins in
" e
tale OJ
•
Mysore and OthersMoolky Petah, that it had been at all times under their
Venkatamma management, that they were the followers of the
Aiyar
Kashi Mutt, and that it was the head of the Mutt that
performed various religious ceremonies in the temple, and that the other communities had no rights to
worship therein. The plaint was filed on February 8,
1949. On July 25, 1949, the Province of Madras filed
a written statement contesting the claim. Between
these two dates, the Madras Legislature had enacted
the Madras Temple Entry Authorisation (Amendment) Act (Madras XIII of 1949), amending the definition of 'temple' in s. 2(2) of Act V of 1947, and
making eonsequential amendments in the preamble
and in the other provisions of the Act. According to
the amended definition, a temple is "a place which is
dedicated to or for the benefit of the Hindu community or any section thereof as a place of public religious worship". This Amendment Act, came into force
on June 28, 1949. In the written statement filed on
July 25, 1949, the Government denied that the temple
was founded exclusively for the benefit of the Gowda
Saraswath Brahmins, and contended that the Hindu
public generally had a right to worship therein, and
that, therefore, it fell within the definition of temple
as originally enacted. It_ further pleaded that, at any
rate, it was a temple within the definition as amended by Act XIII of 1949, even if it was dedicated for
the benefit of the Gowda Saraswath Brahmins, in asmuch as they were a section of Hindu community, and
that, in consequence, the suit was liable to be dismissed.
On January 26, 1950, the Constitution came into
force, and thereafter, on February 11, 1950, the plaintiffs raised the further contention by way of amendment of the plaint that, in any event, as the temple
was a denominational one, they were entitled to the
protection of Art, 26, that it was a matter of religion
S.C.R.
SUPREME COURT REPORTS
901
as to who were entitled to ta~e part in worship in a
1957
temple, and that s. 3 of the Act, in so far as it provid- Sri Venkataramana
ed for the institution being thrown open to commu-Devaru and Others
nities other than Gowda Saraswath Brahmins, was
v.
repugnant to Art. 26 (b) of the Constitution and was, My~::e S.:::Je J~ers
in consequence, void.
Venkatarama
On these pleadings, the parties went to trial. The
Aiyar J.
Subordinate Judge of South Kanara, who tried the
suit, held that though the temple had been originally
founded for the benefit of certain immigrant families
of Gowda Saraswath Brahmins, in course of tin1e it
came to be resorted to by all classes of Hindus for
worship, and that accordingly it must be held to be a
temple even according to the definition of 'temple' in
s. 2(2) of the Act, as it originally stood. Dealing with
the contention that the plaintiffs had the right under
Art. 26(b) to exclude all persons other than Gowda
Saraswath Brahmins from worshipping in the temple,
he held that "matters of religion" in that Article had
reference to religious beliefs · and doctrines, and did
not include rituals and ceremonies, and that, in any
event, Arts. 17 and: 25(2) which had been enacted on
grounds of high policy must prevail. He accordingly
dismissed the suit with costs. Against this decision,
the plaintiffs preferred an appeal to the High Court
of Madras, A. S. No. 145 of 1952.
It is now necessary to refer to another litigation
inter partes, the result of which has a material bearing
on the issues which arise for determination before us.
In 1951, the Madras Legislature enacted the Madras
Hindu Religious and Charitable Endowments Act,
(Madras XIX of 1951) vesting in the State the power
of superintendence and control of temples and Mutts.
The Act created a hierarchy of officials to be appointed by the State, and conferred on them enormous
powers of control and even management of institutions. Consequent on this legislation, a number of writ
applications were filed in the High Court of Madras
challenging the validity of the provisions therein as
repugnant to Arts. · 19, 25 and 26 of the Constitution,
and one of them was Writ Petition No. 668 of 1951
902
SUPREME COURT REPORTS
[1958)
19s1
by the trustees of Sri Venkataramana Temple at
Sri VenkataramanaMoolky.
They claimed that the institution being a
Devaru and 01Jrersdenominational one, it had a right under Art. 26(b)
Tire ;·
f
to manage its own affairs in matters of religion, withMysore .::f' O,,,.,,out interference from any outside authority, and that
the provisions of the Act were bad as violative of that
Venkatarama
Atyar J.
right. By its judgment dated December 13, 1951, the
High Court held that the Gowda Saraswath Brahmin
community was a section of the Hindu public, that the
Venkataramana Temple at Moollty was a denominational temple founded for its be~efit, and that many
of the provisions of the Act infringed the right granted by Art. 26(b) and were void. Vide Devaraja
Shenoy v. State of Madras ( • ). Against this judgment, the State of Madras preferred an appeal to this
Court, Civil Appeal No. 15 of 1953, but ultimately, it
was withdrawn and dismissed on September 30, 1954.
It is the contention of the appellants that by reason of
the decision given in the above proceedings, which
were inter partes, the issue as to whether the temple
is a denominational one must be held to have been con··
eluded in their favour.
To resume the history of the present litigation:
Subsequent to the dismissal of Civil Appeal No. 15 of
1953 by this Court, the appeal of the plaintiffs, A.S.
No. 145 of 1952, was taken up for hearing, and on the
application of the appellants, the proceedings in the
writ petition were admitted as additional evidence.
On a review of the entire materials on record, including those relating to the proceedings in Writ Petition
No. 668 of 1951, the learned Judges held it established
that the Sri Venkataramana Temple was founded for
the benefit of the Gowda Saraswath Brahmin community, and that it was therefore a denominational one.
Then, dealing with the contention thats. 3_of the Act
was in contravention of Art. 26(b), they held that as
a denominational institution would also be a publicinstitution, Art. 25(2) (b) applied, and that, thereunder, all classes of Hindus were entitled to enter into
the temple for worship. But they also held that the
(I) (1952) 2 M.L.J. 481.
S.C.R.
SUPREME COURT REPORTS
903
evidence established that there were certain religious
1957
ceremonies and occasions during which the Gowda Sri Venka1arama11a
Saraswath Brahmins alone were entitled to partici_,Devaru and Other.1 ·
pate, and that that right was protected by Art. 26(b).
The s~~te of
They accordingly reserved the rights of the appellants Mysore and Others.
to exclude all members of the public during those cereVenkararama
monies and on those occasions, and these were specifiAiyar J.
ed in the decree. Subject to this modification, they
dismissed the appeal. . Against this· judgment the
plaintiffs have preferred Civil Appeal No. 403 of 1956
on a certificate granted by the High Court.
There is also before us Petition No. 327 of 1957 for
leave to appeal under Art. 136. That has reference
to the modifications introduced by the decree of the
High Court in favour of the appellants. It must be
mentioned that while the appeal was pending, there
was a reorganisation of the States, and the District of
South Kanara in which the temple is situated, was
included in the State of Mysore. The State of Mysore
has accordingly come on record in the place of the
State of Madras, and is contesting this appeal, and it
is that State that has now applied for leave to appeal
against the modifications. The application is. very
much out of time, and Mr. M. K. Nambiar for the appellants vehemently opposes its being entertained at
this stage. It is pointed out that not merely had the
State· of Madras not filed any application for leave to
appeal to this Court against the decision of the Madras
High Court but that it accepted it as correct and actually opposed the grant of leave to the appellants on
the ground that the points involved were pure ques,..
tions of fact, that· no substantial question of law was
involved, and that the judgment of the High Court ·had
recognised the rights of all sections of the Hindu public. It is argued that when a party acquiesces in a
judgment and deliberately allows the time for filing
an appeal to lapse, it would not be a .sufficient ground
to condone the delay that he has subsequently changed
his mind and desires to prefer an appeal. The contention is clearly sound, and we should have given effect
115
904
SUPREME COURT REPORTS
[1958j
t957
to it, were it not that the result of this litigation would
Sri Vcnkat.ra""'na affect the rights of members of the public, and we
Dev'"" and Othm consider it just that the matter should be decided on
Sv.
·' the merits, so that the controversies involved might
The
tale o,
fin
l d
.
Hysure and 01/rersbe
ally sett e . We have accordmgly condoned the
delay, and have heard counsel on this application. In
I 't•t1ka/aran1a
Aiyar J.
view of this, it is unnecessary to consider the questions
discussed at the Bar as to the scope of Art. 132, who
are entitled to appeal on the strength of a certificate
granted under that Article, and the forum in which the
appeal should be lodged. It is sufficient to say that in
this case no appeal, was, in fact, filed by the respondent.
On the arguments addressed before us, the following questions fall to be decided :
(1) Is the Sri Venkataramana Temple at Moolky,
a temple as defined in s. 2(2) of Madras Act V of
1947?
(2) If it is, is it a denominational temple?
( 3) If it is a denominational temple, are the plaintiffs entitled to exclude all Hindus other than Gowda
Saraswath Brahmins from entering into it for worship,
on the ground that it is a matter of religion within'
the protection of Art. 26(b) of the Constitution?
( 4) If so, is s. 3 of the Act valid on the ground that
it is a law protected by Art. 25(2) (b), and that such
a law prevails against the right conferred by Art. 26
(b); and
( 5) If s. 3 of the Act is valid, are the modifications
in favour of the appellants made by the High Court
legal and proper?
On the first question, the contention of Mr. M. K.
Nambiar for the appellants is that the temple in question is a private one, and therefore falls outside the
purview of the Act. This plea, however, was not
taken anywhere in the pleadings. The plaint merely
alleges that the temple was founded for the benefit of
the Gowda Saraswath Brahmins residing in Moolky
Petah. There is po averment that it is a private temple. It is true that at the time when the suit was "instituted, the definition of 'temple' as it then stood, took
S.C.R.
SUPREME COURT REPORTS
905
in only institutions which were dedicated to or for the
1957
benefit of the Hindu public in general, and it wassri Venkataramana
therefore sufficient for the plaintiffs to aver that theDevaru and Others
suit temple was not one of that character, and that it
The 5v.
if
would have made no difference in the legal position Mysore ::::/ o~hers
whether the temple was a private one, or whether it
Venkatarama
was intended for the benefit of a section of the public.
Aiyar J.
But then, the Legislature amended the definition of
'temple' by Act XIII of 1949, and brought within it
even institutions dedicated to or for the benefit of a
section of the public; and that would have comprehended a temple founded for the benefit of the Gowda
Saraswath Brahmins but not a private temple. In the
written statement which was filed by the Government,
the amended definition of 'temple' was in terms relied
on in answer to the claim of the plaintiffs. In that
situation, it was necessary for the plaintiffs to have
raised the plea that the temple was a private one, if
they intended to rely on it. Far from putting forward
such a plea, they accepted the stand taken by the .
Government in their written statement, and simply
contended that as the temple was a denominational
one, they were entitled to the protection of Art. 26(b).
Indeed, the Subordinate Judge states in para. 19 of
the judgment that it was admitted by the plaintiffs
that the temple came within the purview of the definition as amended by Act XIII of 1949.
Mr. M. K.· Nambiar invited our attention to Exhibit
A-2, which is a copy of an award dated November
28, 1847, wherein it is recited that the temple was
originally founded for the benefit of five families of
Gowda Saraswath Brahmins. He also referred us to
Exhibit A-6, the decree in the scheme suit, O.S. No.
26 of 1915, wherein it was declared that the institution
belonged to that community. He contended on the
basis of these documents and of other evidence m the
case that whether the temple was a private or public
institution was purely a matter of legal inference to
be drawn from the above materials, and that, notwithstanding that the point was not taken in the pleadings,
it could be allowed to be raised as a pure question of
LISup. Court-2
906
SUPREME COURT REPORTS
[1958]
19s1
law. We are unable to agree .with this submission.
Sri VenkataramanaThe object of requiring a party to put forward his
Devaru and Otherspleas in the pleadings is to enable the Opposite party
Th ;; 1
f to controvert them and to adduce evidence in support
Myso;e and• o~hersof his case. And it would be neither legal nor just to
refer to eviaence adduced with reference to a matter
Venkatarama
Aiyar J.
which was actually in issue and on the basis of that
evidence, to come to a finding on a matter which was
not in issue, and decide the rights of parties on the
basis of that finding. We have accordingly declined
to entertain this contention. We hold, agreeing with
the Courts below, that the Sri Venkataramana Tern·
ple at Moolky is a public temple, and that it is within
the operation of.Act V of 1947.
(2) The next' question is whether the suit temple
is a denominational institution. Both the Courts below have concurrently held that at the inception the
temple was founded for the benefit of Gowda Saraswath Brahmins; but the Subordinate Judge held that
as in course of time public endowments came to be
made to the temple and all classes of Hindus were
taking part freely in worship therein, it might be presumed that they did so as a matter of right, and that,
therefore, the temple must be held to have become
dedicated to the Hindu public generally. The learned
Judges of the High Court, however, came to a different conclusion. They followed the decision in Devaraja Shenoy v. State of Madras (supra), and held that
the temple was a denominational one. The learned
Solicitor-General attacks the correctness of this finding on two grounds. He firstly contends that even
though the temple might have been dedicated to the
Gowda Saraswath Brahmins, that would make it only
a communal and not a denominational institution, unless it was established that there were religious tenets
and practices special to the community, and that that
had not been done. Now, the facts found are that the
members of this community migrated from Gowda
Desa first to the Goa region and then to the south,
that they carried with them their idols, and that when
they were first settled in Moolky, a temple was found-
S.C.R.
SUPREME COURT REPORTS
907
ed and these idols were installed therein. We are
19s1
therefore concerned with the Gowda Saraswath Brah-srt .Venkataramana
mins not as a section of a community but as a sectDevaru and OJlters
associated with the foundation and maintenance of
'The s:· te 01
the Sri Venkataramana Temple, in other words, not as Mysore a/:t Others .
a mere denomination, but as a religious denomination.
Venkatarama
From the evidence of P. W. 1., it appears that the
Atyar J.
·Gowda Sarawath Brahmins have three G1J,rm, that
those in Moolky Petah are follow'ers of the head of
the Kashi Mutt, ari'd that it is he that performs some
of the important ceremonies in the temple. Exhibh
A is a document of the year 1826-27. That shows thai
the head of the Kashi Mutt settled the disputes among
the Archakas, and that they agreed to do the puja
under his orders. The uncontradicted evidence of·
P. W. 1 also shows that du"ring certain religious ceremonies, persons other than Gowda Saraswath Brahmins have been wholly excluded. This evidence leads·
irresistibly to the conclusion that the temple is a denominational one, as contended for by the appellants. ·
The second ground urged on behalf of the respondent is that the evidence discloses that· all communities had· been freely admitted into the temple, and
that though P. W. 1 stated that persons other than
Gowda Saraswath Brahmins could enter only with
the permission of the trustees, there was no instance
in which such permission was refused. It was contended that the inference to be .drawn from this was
that the Hindu public generally had a right to worship in the temple. 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
908
SUPREME COURTS REPORTS
[1958]
1957
original foundation was for their. benefit as well. But
sr· Venkataramana where it is proved by production of the deed of endowD;varu and Othersment or otherwise that the original dedication was
v.
for the benefit of a particular community, the fact that
The State of
be
f th
"t"
all
d f
1
Mysore and Othersmem rs o o er commum 1es were
owe
ree y
to worship cannot lead to the inference that the deV•~7;!':'~':'a dication .was for their benefit as well. For, as observed in Babu Bhawan Din v. Gir Har Saroop ( 1 ), "it
would not in general be consonant with Hindu sentiments or practice that worshippers should be turned
away". On the findings of the Court J:ielow that the
foundation was originally for the benefit of the Gowda
Saraswath Brahmin community, the fact that other
classes of Hindus were admitted freely into the temple
would not have the effect of enlarging the scope of
the dedication into one for the public generally. On
a consideration of the evidence, we see no grounds for
differing from the finding given by the learned Judges
in the court below that the suit temple is a denominational temple founded for the benefit of the Gowda
Saraswath Brahmins, supported as it is by the conclusion reached by another Bench of learned Judges
in Devaraja Shenoy v. State of Madras (supra). In
this view, there is no need to discuss whether this issue
is res jud~ata by reason of the decision in Writ Petition No. 668 of 1951.
(3) On the finding that the Sri Venkataramana
Temple at Moolky is a denominational institution
founded for the benefit of the Gowda Saraswath Brahmins, the question arises whether the appellants are
entitled to exclude other communities from entering
into it for worship on the ground that it is a matter
of religion within the protection of Art. 26 (b). It is
argued by the learned Solicitor-General that exclusion of"persons from entering into a temple cannot ipso
facto be regarded as a matter of religion, that whether
it is so must depend on the tenets of the particular
religion which the institution in question represents,
and that there was no such proof in the present case.
Now, the precise connotation of the
expression
(I) (1939) LR. 67 I.A. I.
S.C.R.
SUPREME COURT REPORTS
909
"matters of religion" came up for consideration by this
1957
Co\U't in The Commissioner, Hindu. Religious Endow-sr1 Venkataramana
ments, Madras v. Sri Lakshmindra Thirtha SwamiarDevaru and Othm
of Sri Shirur Mutt .. ( l ) ' and it was held therein. that . Th ;; I
"
it embraced not merely matters of doctrine and belief Myso:e a!/ o~hm
pertaining to the religion but also the practice ·of it,
Venkatarama:
· or· to put it ill terms of Hindu theology, not merely
Aiyar 1 •
. its Gnana but also its Bakti and Karma Kandas. The
following observations of Mukherjea J., (as he then
was) are particularly apposite to. the present discussion:
"In the first place, what constitutes the essential
part of a religion is primarily to be ascertained with
reference to the doctrines of that religion itself. If
the tenets of any religious sect of the Hindus prescribe
that offerings of food should be given to the idol at
particular hours of the day, that periodical ceremonies
should be performed in a certain way at certain periods
of the year or that there should be daily recital of
sacred texts or oblations to the sacred fire, all these
would be regarded as parts of religion and the mere
fact that they involve expenditure of money or. employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic. character;
all of them are religious practices and· should be regarded as matters of religion within the meaning of
article 26 (b)."
It being thus settled that matters . of religion in
Art. 26(b) include even practices which are regard~
ed by the communitY as part of its religion, we have
now to consider whether exclusion of a person from
entering into a temple for worship is a matter of. religion according to Hindu Ceremonial Law. l'here ·
has been di1ference of opinion among the writers as
to wh~ther image. worship had a place in th~ religion
of the HinduS, as revealed in the Vedas. On the• one
hand, we have hymns in pr.aise of Gods, and on · ~e ·
other, we have highly philosophical ·passages in the
Upanishads describing the Supreme Being as
(1) [195 4) S.C.R..1005.
910
SUPREME COURT REPORTS
[1958]
1957
omnipotent, omnicient and omnipresent and transcends,; Venkataramanaing all names and forms. When we come to the Puranas
Devaru and Otherswe find a marked change. The conception had be-
~' sv. 1 ·' come established of Trinity of Gods, Brahma, Vishnu
me ta e o,
d s·
'f t .
f h
h
Mysore a11d Othersan
1va as mam es at1ons o t e t ree aspects of
Venkatarama
creation, preservation and destruction attributed to
Aiyar J.
the Supreme Being in the Upanishads, as, for example,
in the following passage in the Taittiriya Upanishad,
Brigu Valli, First Anuvaka:
"That from which all beings are born, by which
they live and into which they enter and merge." The
Gods have distinct forms ascribed to them and their
worship at home and in temples is ordained as certain means of attaining salvation. These injunctions
have had such a powerful hold over the minds of the
people that daily worship of the deity in temple came
to be regarded as one of the obligatory duties of a
Hindu. It was during this period that temples were
constructed all over the country dedicated to Vishnu,
Rudra, Devi, Skanda, Ganesha and so forth, and worship in the temple can be said to have become the
practical religion of all sections of the Hindus ever
since. With the growth in importance of temples and
of worship therein, more and more attention came to
be devoted to the ceremonial law relating to the construction of temples, installation of idols therein and
conduct of worship of the deity, and numerous are
the trei;ttises that came to be written for its exposition.
These are known as Agamas, and there are as many
as 28 of them relating to the Saiva temples, the most
important of them being the Kamikagama, the Karanagama and the Suprabedagama, while the Vikhanasa
and the Pancharatra are the chief Agamas of the Vaishnavas. These Agamas, contain elaborate rules as to
how the temple is to be constructed, where the principal deity is to be consecrated, and where the other
Devatas are to be installed and where the several classes of worshippers are to stand and worship. The following passage from the judgment of Sadasiva Aiyar
J. in Gopala Muppanar v. Subramania Aiyar ('),gives
(I) (1914) 27 M.L.J. 253.
S.C.R.
SUPREME COURT REPORTS
911
a summary of the prescription contained in one of the
1957
Agamas :
Sri Venkataramana
"In the Nirvachanapaddhathi it is said that Sivad-Devaru and Others
wijas should worship in the Garbagriham, Brahmin·s
"''he sv.
of
1
·
.. ,
late
rom the ante chamber or Sabah Mantabam,
Ksha~ Mysore and Others
triyas; Vysias and Sudras from the Mahamantabham,
Venkatarama
"the dancer and the musician from the NrithamantaAiyar 1.
bham east of the Mahamantabham and that castes yet
lower in scale should content themselves with the
sight of the Gopuram."
The other Agamas also contain similar rules .
.Accor.ding to the Agamas, an image becomes· defiled if there is any departure or violation of any of
the rules, relating to worship, and purificatory ceremonies ( lmown as Samprokshana) have to be performed
for restoring the sanctity of the shrine. Vide judgment of Sudasiva Aiyar J. in Gopala Muppanar v.
Subramania Aiyar (suprq).
In SankaraUnga Nadan
v. Raja Rajeswara Dorai ( 1 ), it was held by the Pri'Vy
Council '8f!lrming the judgment of the Madras High
Court that a trustee who agreed to admit into the temple persons who were not entitled to worship therein,
:according to the Agamas and the custom of the temple
was guilty of breach of trust. Thus, under ·the ceremonial law ·pertaining to temples, who are entitled to
enter into them for worship and where they are entitled to stand and worship and how, the worship is to
be conducted are all matters of religion. The conclusion is also implicit in Art. 25 which after declaring
that all ·persons are entitled freely to profess, practice
and propagate religion, enacts that this should ·not
affect the operation of any law throwing open Hindu
religious institutions of a public character to all classes
and sections of Hindus. We have dealt with this question at some length in view of the argument of the
learned Solicitor-General that exclusion of persons
from temple bas not been shown to be a matter of religion with reference to the tenets of Hinduism.· We
.
.
•t
•
• e • • e t
• •
t • •
• • e t
I
•
•
•
•
•
•
•
I
•
•
I
t
I
•
f
•
'
t
I e
t
•
I e • • t
I
•
I t
I
•
t
•
e • '
• 't •,
(1) (1908) L.R. 3S I.A. 176,
. llti .
912
SUPREME COURT REPORTS
[1958)
1957
must accordingly hold that if the rights of the appels,; venkataramana lants have to be determined solely with reference to
Demm and Others Art. 26 ( b), then s. 3 of Act V of 194 7, should be held
Tl ;·
f
to be bad as infringing it.
Mys;;, d,~Jc rfihm
( 4) That brings us on to the main question for
Venkatarama
determination in this appeal, whether the right guaAiyar J.
ranteed under Art. 26 (b) is subject to a law protected
hy Art. 25(2) (b) throwing the suit temple open to
all classes and sections of Hindus. We must now
examine closely the terms of the two articles. Art. 25,
omitting what is not material, is as follows :
"(l) Subject to public order, morality and health
and to the other provisions of this Part, all persons
are equally entitled to freedom of conscience and the
right to freely profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law o.r prevent the State from
making any law-
(b) providing for social welfare and reform or
the throwing open of Hindu religious institutions of a
public character to all classes and sections of Hindus".
Article 26 runs as follows :
"Subject to public order, morality and health,
every religious denomination or any section thereof
shall have the right-
( a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable
property; and
(d) to administer such property in accordance
with law."
We have held that matters of religion in Art.