His Holiness Sri Vishwothama Thirtha vs The State of Mysore

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 84 of 1959

Decision Date: 18 December 1961

Coram: Raghubar Dayal

In this matter, the Supreme Court of India rendered its judgment on 18 December 1961 in the case titled His Holiness Sri Vishwothama Thirtha Swamiar of Sode Mutt versus the State of Mysore. The petition was filed by His Holiness Sri Vishwothama Thirtha in his capacity as the head of the Sode Mutt, and the State of Mysore appeared as the respondent. The opinion was authored by Justice Raghuvar Dayal, who sat on the bench that heard the appeal.

The shrine that formed the subject of the suit had originally been established by the Hindu saint Shri Madhavacharya. For many years the administration of the shrine rotated among the heads of eight mutts, each of which had also been founded by the same saint for eight of his principal disciples. Pilgrims from across the country visited the shrine in large numbers, worshipped there without any restriction, offered their contributions to the deity and partook of the prasad. Financial support for the institution derived both from monetary aid provided by the State and from contributions collected by the mutt heads from devotees residing in various parts of the country. The central issue presented to the Court was whether the shrine qualified as a “temple” within the meaning of section 2(1) of the Madras Temple Entry Authorization Act, 1947.

The Court held that, in the absence of convincing evidence that the shrine was a private temple, the fact that it had been openly visited by a substantial number of members of the Hindu public for many years constituted strong proof that the shrine had been dedicated to the Hindu public and was intended for its benefit. The Court relied on the authority of Vibhudapriya v. Lakshmindra (1927 L.R. 54 I.A. 228), as well as on 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. In the present case, the finding that the Hindu public possessed a right to worship at the shrine was sufficient to deem the institution a “temple” under the definition contained in the Act, even though the shrine was attached to a mutt.

The appeal originated as Civil Appeal No. 84 of 1959, challenging the judgment and decree dated 17 August 1954 passed by the Madras High Court in appeal‑suit No. 304 of 1951. Counsel for the appellants appeared on behalf of the petitioners, while counsel for respondent No. 1 represented the State of Mysore. The sole question for determination, as framed by the Court on the basis of the certificate granted by the Madras High Court, was whether the property described in the plaint as Shri Krishna Mutt in Shivalli Village, South Kanara District, satisfied the definition of “temple” set out in section 2(1) of the Madras Temple Entry Authorization Act, 1947 (Madras Act V of 1947), hereinafter referred to as the Act. Sub‑section (1) of section 2 of the Act reads: “‘temple’ means a place, by whatever name …”.

The Act defined a temple as any place, known by any name, that is dedicated to, or for the benefit of, or used as of right by, the Hindu community or any of its sections, as a place of public religious worship, and the definition also embraces subsidiary shrines and mantapams attached to such a place. Under section 6 of the Act the Government of Madras exercised its authority on 3 June 1948 and issued a declaration that Shri Krishna Mutt was to be treated as a temple within that definition. The plaintiffs, who represented the heads of six of the eight mutts that had been established at Udipi by the saint Shri Madvacharya, filed a suit seeking a declaration that Shri Krishna Mutt – which was not one of the original eight mutts – was not a temple as defined by the Act and also asked that the Government’s order be set aside. The heads of the remaining two mutts were joined as defendants numbered 2 and 3, while the State of Madras was named as defendant 1. Only the State of Madras contested the suit and maintained that Shri Krishna Mutt satisfied the statutory definition of a temple. The trial court, followed by the High Court, accepted the State’s argument and dismissed the plaintiffs’ suit. Consequently the plaintiffs appealed the decision, bringing the matter before this Court.

The factual backdrop presented by the plaintiffs begins with the founding of the Udipi Mutt in South Kanara District by the great saint and scholar Shri Madvacharya, who established the institution to propagate the Dvaita philosophical system and also made his residence there. He initiated eight disciples, thereby creating the “Astha Mutts” – eight separate mutts of Udipi – and required each disciple to reside in a mutt and devote themselves to study and the spread of learning. According to the traditional account recorded in the text “Shri Madva Vijaya,” the image of Shri Krishna was obtained from a heap of Gopi Chandan that originated in Dwarka and was brought by the crew of a native vessel that became stranded near Malpe, a place the teacher visited each morning for ablutions and tapas. Tradition further holds that this image is the same one once worshipped by Rukmini at Dwarka in ancient times. The saint consecrated and installed the idol in a shrine within his own mutt at Udipi and began worshipping it, an event that gave rise to the popular name “Shri Krishna Mutt at Udipi.” Shri Madvacharya himself worshipped the consecrated idol during his lifetime and ordained that the worship be continued by one of his eight disciples. To regularise the worship and to provide equal opportunity to each disciple, a rotational system known as “pariyayam” was established, whereby each disciple would conduct worship in turn. This system of rotation has been observed for the many centuries that the shrine has existed, and the head of each...

In the arrangement described, the head of one of the eight mutts performed the worship of the Shri Krishna image for a period of two years. During each two‑year term, that head occupied the Gadi, the seat established by Shri Madvacharya, and was referred to as the Pariyayam Swami. While the Pariyayam Swami was engaged in his duty, the remaining seven heads of the mutts, when relieved of worship obligations, took up residence in the neighbourhood of the principal Mutt, and as a result eight distinct mutts came into being. Nevertheless, the original Mutt founded by Shri Madvacharya, which had both consecrated and installed the Shri Krishna image, continued to exist as the Shri Krishna Mutt of Udipi. The Pariyayam Swami financed the worship and all incidental costs from the revenues of his own mutt together with the income of the Shri Krishna Mutt, and he personally conducted the worship ceremonies. The Shri Krishna Mutt functioned as a shrine attached to the ancient Mutt of Shri Madvacharya and was not a place of public worship; it possessed no separate legal existence apart from the parent Mutt. Accordingly, the shrine was not intended as a venue dedicated to, or for the benefit of, the Hindu community at large, nor could it be used as a matter of right by the general public for religious worship. Rather, it was meant exclusively for the worship of the eight disciples. The plaint, however, recorded a statement that worship by persons other than the eight disciples could be offered only with the consent of the Pariyayam Swami and only as part of his ordinary worship. Defendants 2 and 3, who were the heads of two mutts other than those of the plaintiffs, accepted the plaintiffs’ version of the facts. The opposing defendant, the State of Madras, rejected the contention that the Shri Krishna Shrine was merely a shrine attached to the ancient Mutt founded by Shri Madvacharya. The State argued that the shrine was one of the most important temples in India, that it attracted a large body of worshippers from across the country, that the Hindu public exercised a right to worship there, and that substantial offerings were regularly made to the temple. The State further denied that the temple was intended solely for the worship of the eight Swamiyars. The learned judges of the High Court delivered separate opinions but, in substance, concurred that the shrine in dispute qualified as a temple within the meaning of section 2(1) of the Act. Their conclusion was based on several considerations: first, authoritative authors and prior judicial decisions had referred to the institution as a Krishna temple; second, the plaintiffs themselves, in sub‑paragraph (7) of paragraph 3 of the plaint, asserted that the Pariyayam Swami possessed an incontestable right to exclude any person, including the other Swamiyars of the eight mutts, from the Shri Krishna Dev Temple during his period of Pariyayam; third, the various deeds by which properties had been endowed to the institution described it as a temple; and fourth, the testimony of witnesses for the plaintiffs indicated that Hindus in general, without any restriction, worshipped the deity and that various individuals had endowed permanent services to the shrine.

In the evidence, it was shown that the pilgrims who come to the shrine include many persons who are not followers of Shri Madvacharya. During certain utsavs, thousands of devotees—both Madvas and non‑Madvas, Brahmins and non‑Brahmins—gather for the festival, and the pilgrims place their monetary offerings in a box placed before the deity. The inscriptions that are found within the temple and in the adjacent buildings demonstrate that the structure is not a private shrine attached to the Mutt but rather a public institution that operates under the general supervision of the Hindu sovereigns of the region. A pamphlet issued for the assistance of pilgrims, identified as Exhibit B‑10, expressly invites all pilgrims to take part in the worship of the deity, a worship that is performed up to nine times a day, and to make offerings. The pamphlet also provides a detailed list of the various kinds of sevas that may be performed by the devotees; the fees for each seva are to be fixed by the Pariyayam Swami. Moreover, the pamphlet states that the Pariyaya Mutt will arrange, for the benefit of the devotees, ceremonies such as homas, Udyapana, Thulabhara, Brahmopadesa, Annaprasana and Namakarana, provided the prescribed amounts are paid. It further indicates that devotees may endow sums of money for the continual burning of Nanda Deepa and Deepa Sthamba throughout the year. The learned Judges held that the dominant characteristic of the institution is the service and worship of Shri Krishna and not the propagation of the philosophical system advanced by Shri Madvacharya. Although the system of worship in this temple differs from that in other temples—because the visitors to the Pariyayam festival are fed, religious discourses are delivered on the occasion, and the swamiyars of the eight mutts have been interred in the compound near the temple—the Judges concluded that these differences do not undermine the overall finding that the shrine is a temple to which Hindus generally may go for worship as a matter of right.

On the question of whether Shri Madvacharya possessed a separate Mutt of his own, the learned Judges of the High Court expressed differing views. Justice Govinda Menon observed that the present institution is renowned throughout the length and breadth of India and that a large number of people regularly resort to it for worship. He noted that there is no evidence that the swamiyars have treated the institution as private property or in any similar manner. The admissions of plaintiff’s witness 2, together with the testimony of other witnesses, point to the fact that the temple is intended for the benefit of the public and that the public regularly resorts to it for religious worship. Although the image of Shri Krishna was originally installed by Madhwacharya in his own residence or lodging, the subsequent course of conduct over the centuries has transformed that abode of Shri Krishna into a public temple. Justice Govinda Menon further stated, “As I have stated already, originally there was a mutt and subsequent to the installation of” the deity, the site evolved into the public institution described. His observations underscore the view that the temple, despite its historical origins, functions today as a public place of worship open to all Hindus.

In the judgment, the Court noted that the image of Lord Krishna was installed by Sri Madhwacharya, and that over centuries of public worship the site had developed into a public institution. Judge Ramaswami expressed a different view concerning whether Sri Madhwacharya possessed a mutt and placed the deity therein. He examined the statement in Chapter 9 of the Madhwa Vijaya, which records that Sri Madhwacharya playfully brought the image to the mutt, and he explained that the “Math” mentioned in the forty‑second stanza should be understood as the Kshetra of Anantheswara, which the Sampradaya Paddhati of Hrishikesha Thirtha calls Roopya. He further observed, as also pointed out by the learned Subordinate Judge, that Achyuta Preksha had taken residence in that Kshetra and was teaching his disciples there; consequently the Kshetra was described as a Math because, at that time, there was no evidence that Madhwacharya had established an independent Math of his own, and all instruction would have taken place within the temple of Anantheswara. Accordingly, Judge Ramaswami concluded that the Math referred to must be the temple of Anantheswara. He supported this conclusion in two ways. First, at the end of the Madhwa Vijaya it is recorded that while expounding the Aittariyopanishat to his disciples in the temple of Anantheswara, the Acharya vanished from the mortal world, and even today pilgrims are shown the seat that is said to have been used by Sri Madhwacharya. Second, the continuing importance attached to the Anantheswara temple confirms that it served as Madhwacharya’s teaching seat, making it implausible that a separate Krishna Math ever existed; the temple of Anantheswara is regarded as the holder of the Muli right, while Sri Krishna is treated as its tenant. Counsel for the appellants argued that references to the institution as a temple by authoritative authors and by earlier judicial decisions were made in a general sense, indicating that the site is a shrine where the idol of Sri Krishna is installed and worshipped in the ordinary meaning of the word “temple.” Their contention was that the site does not qualify as a temple under the statutory definition, because no Hindu in general or any particular sect has a legal right to worship there, and the presence of many pilgrims does not contradict the possibility that the shrine is a private chapel rather than a public place dedicated to all Hindus. The counsel further pointed out that Judge Ramaswami’s remark that the matadhipathi of the Bhandrikere Mutt admitted, on cross‑examination, that the public participated in worship of the temple without the Paryaya Swami’s permission, thus supporting the plaintiff’s allegation that the place was a private chapel, was inaccurate. While acknowledging that this observation was correct, the counsel maintained that it did not materially affect the decision, because a conclusion could be drawn from the statement regardless. The Court expressed agreement with the view of the learned High Court judges that the shrine in suit satisfies the definition of a temple under section 2(1) of the Act.

The Court affirmed the view expressed by the learned Judges of the High Court that the shrine which is the subject of the suit qualifies as a temple within the meaning of section 2(1) of the Act. The material placed on record fully supports the findings of the lower courts that the temple is devoted to the Hindu public and that it functions as a place of public religious worship. It is not contested that a very large number of pilgrims, who travel from various parts of the country, regularly visit the shrine, participate in the worship, present offerings to the deity and receive the prasad. In addition, the institution receives financial assistance from the State.

The Court referred to the decision in Vibhudapriya v. Lakshmindra, wherein an extract from the South Kanara Manual, published under Government authority, was quoted. The extract states that the Krishna temple at Udipi is said to have been founded by Madhavacharya himself, who installed an image of Krishna originally crafted by Arjuna and miraculously retrieved from a vessel wrecked on the Tuluva coast. Besides this temple, Madhavacharya established eight “Mathas” or sacred houses, each headed by a Sanyasi or Swami. Each Swami, in turn, presides over the Krishna temple for a period of two years and spends the intervening fourteen years touring the Kanara region and the adjoining parts of Mysore, during which he levies contributions from the faithful to meet the heavy expenses of his subsequent two‑year tenure. Those expenses include the costs of public worship, the maintenance of the temple and Matha establishments, and the feeding of every Brahmin who comes to the shrine.

The Court observed that the passage clearly demonstrates that the Swamis travel throughout the country collecting contributions from devotees in order to finance the substantial outlays they must bear during their period of service. These outlays are funded from the income earned during the two‑year term, which consists of State aid, the offerings made by pilgrims, and the revenues of the Swami’s own mutt. The fact that contributions are solicited from devotees residing in different parts of India indicates that those devotees possess a recognized right to visit the temple and to worship there. If such a right did not exist, it would be unlikely that the Swamis would seek contributions from them.

Furthermore, the Court noted that there is no historical record of any pilgrim being denied permission to worship at the shrine during the several centuries that have passed since the deity’s installation. This long‑standing practice substantiates and reinforces the finding of the lower court that the institution has been held out as benefiting Hindus generally, and that Hindus have exercised their right of worship there without needing any express or implied permission from the Pariyayam Swami. Consequently, the evidence confirms that the shrine operates as a public temple rather than a private chapel.

It is true that the mere fact that many pilgrims regularly attend a temple for worship does not, in every case, demonstrate that the temple is a public one; however, a conclusion that the temple is private will not be reached unless there is strong evidence establishing its private character. This principle was expressly affirmed in the decision of Babu Bhagwan Din v. Gir Har Saroop (1), a case that counsel referred to. In that case the Privy Council examined the evidence and determined that the family had treated the temple as its own family property, allocating the various forms of profit such as offerings and rents among themselves, closing the temple to exclude the public when family members needed to attend marriage or other ceremonies at their ancestral home, and erecting samadhis in honor of deceased family members. The Council held, at page 9, that even if Hindus were never turned away and even if the deity had become popular among local Hindus or among those attending the annual mela, this alone was insufficient to deprive the family of its private property. The Court explained that worshippers are naturally welcomed because of the offerings they bring and the reputation they confer on the idol, and they do not have to be excluded on the ground that the temple property has become a public trust. The Court further stated that facts and circumstances must be assessed in their historical context, and that dedication of a temple to the public cannot be readily inferred when the temple property was originally granted to an individual or a family.

Consequently, in the absence of good evidence that a temple is private, the simple fact that a large number of Hindus have visited the temple without any restriction for many years constitutes strong evidence that the temple was dedicated to the Hindu public and intended for their benefit. A useful parallel may be drawn from the reported case of Sri Venkataramana Devaru v. The State of Mysore (1). In that case a temple had been established for the benefit of the Gowda Saraswath Brahmins, who managed it continuously and were followers of the Kashi Mutt. The head of the Mutt performed various religious ceremonies in the temple. It was alleged that persons who were not Gowda Saraswath Brahmins could not enter without the trustees’ permission. Nonetheless, there was no instance in which such permission was refused, and evidence showed that all communities were freely admitted to the temple. The contention was that the unrestricted admission of all communities, coupled with the absence of any refusal of permission, indicated that the Hindu public generally possessed a right to worship in the temple.

The Court observed that there was no instance in which any person was denied permission to worship, which led to the conclusion that the Hindu public generally possessed a right to worship in the temple. While examining this point, the judgment quoted the discussion on page 907, stating that the law on the matter is well settled. The Court explained that when the nature and extent of a temple’s dedication are in question, the determination must be based on the terms of the deed of endowment if such a deed is available; if it is not, the decision must rely on other legally admissible materials, and evidence of long and uninterrupted use serves as strong proof of the dedication’s terms. Accordingly, where the original deed of endowment is unavailable and it is found that all persons worship freely in the temple without any obstruction, a proper inference is that they do so as a matter of right and that the original foundation was intended for their benefit as well. Conversely, the Court noted that if the deed of endowment or other evidence shows that the original dedication was intended for the benefit of a particular community, the mere fact that members of other communities are allowed to worship freely cannot lead to the inference that the dedication was also for their benefit. The Court cited Babu Bhagwan Din v. Gir Har Saroop, observing that it would not ordinarily be consistent with Hindu sentiments or practice for worshippers to be turned away. The Court then noted that there was no documentary evidence in the present case to support the appellants’ contention that the temple had originally been founded for the private use of Shri Madvacharya and his disciples. In the absence of such evidence, the Court held that the long‑standing use of the temple by Hindus in general, coupled with the absence of any refusal of permission, must lead to the conclusion that the temple was dedicated to Hindus generally and was for their benefit. Further, the Court found no record, oral or documentary, of Shri Madvacharya possessing a Mutt of his own before he obtained the idol of Sri Krishna that he installed in the temple. It was stated that Shri Madvacharya had established eight separate Mutts, each for one of his eight disciples, and that each of these Mutts bore a distinct name, with none named after Shri Madvacharya. The Court, referring to the reasoning of Ramaswami J., concluded that Shri Madvacharya did not have a personal Mutt. The Court explained that a primary Mutt associated with its founder must have an independent permanent head, a Matathipathi, which this alleged Mutt lacks. Instead, one of the eight swamis, who heads the eight Mutts, serves as head or manager of the institution for a two‑year term, and this rotating system of appointment clearly indicates that the institution in question is neither a Mutt nor a temple appurtenant to a Mutt.

In this case, the Court observed that the institution could not be described as a temple that was merely appurtenant to a Mutt. In 1937, the Board of Commissioners for the Hindu Religious Endowments in Madras issued an order under section 84 of the Madras Hindu Religious Endowments Act, 1926 (Act II of 1927). That order declared that the institution was not a temple within the meaning of the Act, but rather a place of worship that was appurtenant to Sri Krishna Devaru Math, located at Shivalli, Udipi Taluk, South Kanara District. For the appellant, it was contended that the Board’s order barred any further inquiry and precluded a different conclusion under the Act regarding the nature of the institution. The lower courts rejected that contention and, in the view of this Court, did so correctly. The Board’s own finding, set out in its words, stated: “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 Court held that the finding that the Hindu public possessed a right to worship at the site was enough to qualify the institution as a temple within the definition provided by the Act, even though the temple was appurtenant to a Mutt. Consequently, the Board’s order could not prevent the consideration of whether the institution fell within the statutory definition of a temple. The Court concluded that the lower courts were correct in holding that the institution was a temple as defined by the statute, and therefore the appeal must fail. Accordingly, the appeal was dismissed with costs.