Govinda Menon, J.@mdashAppeal No. 145 of 1952 arises out of O. S. No. 24 of 1949 on the file of the Subordinate Judge of South Kanara,
which was a suit, by the trustees of Sri Venkaramanaswami Temple at Moolky as well as by the members belonging to Gowda Saraswath
Brahmin community, Moolky, who are interested as worshippers in the said temple, for setting aside an order of the Government of Madras, dated
25th June, 1948. Ex. A. 13. by which the Government of Madras decided, under S. 6 of Madras Act V of 1947, Madras Temple Entry
Authorisation Act, that Sri Venkataramanaswami Temple at Moolky, Mangalore Taluk, South Kanara District, is a temple as defined in the said
Act. The other arose out of an application by the trustees and others representing that the said temple is a private temple belonging exclusively to
Gowda Saraswath Brahmins and as such the temple is not one used as of right by the Hindu community in general and requesting that the temple
should not be declared as one coming within the definition of temple in the Madras Temple Entry Authorisation Act V of 1947. According to the
averments in the plaint it is stated that the plaint temple belongs exclusively to the Gowda Saraswath Brahmin residents of the three villages,
Mannampady, Karnad and Bappanad collectively known as Moolky Petah and that the said Brahmins are migrants from Goa, Konkan and also
from other places in South Kanara District and settled down in these villages. As they were treated as aliens by other Hindus they do not inter-dine
or intermarry with the local Brahmins who do not worship in the temples of Gowda Saraswaths. These persons have their own spiritual heads and
they have established their own temples for their religious worship. The management of this temple has always been carried on by the members of
the Gowda Saraswath Brahmin community residing in the three villages mentioned above and hereditary archakas of the temple belong to this
community. They have distinctive forms of rituals. The ""santharpana"" in the temple is confined only to this community and it is the special privilege
of the spiritual head of this community to initiate the oracle and perform Sahasra Kalasha Maha Samprokshana and other religious ceremonies. It is
also stated that the management of this institution is regulated by the scheme settled in O. S. No. 26 of 1915 on the file of the Sub-Court, South
Kanara, which is binding on the Government, the general public and everybody concerned. Therefore it is not a public temple wherein any member
of the Hindu public has a right of worship. As it is a sectional temple the Hindu public residing in the three villages alone have a right to worship
therein and the provisions of Act V of 1947 cannot be made applicable. On behalf of the State of Madras, the defence put forward was that it is
not true that the suit temple belongs exclusively to the Gowda Saraswath Brahmins of the three villages, and it is not true that Gowda Saraswath
Brahmins are treated as aliens in South Kanara District. They are as much Hindus as other Hindus are. They worship in all the Hindu temples and
the other Hindus worship in the temples under the control of Gowda Saraswath Brahmins. Even if it is found that the management of the said
temple vests in the Gowda Saraswath Brahmin community of the three villages that would not exclude the temple from the operation of the Act as
worship is one thing and management is another. The Hindu public in general have been worshipping in the suit temple as of right and have been
making large votive offerings. The oracle in the temple has been attracting a large number of worshippers of all communities and this temple has
become a place of pilgrimage for all Hindus irrespective of caste or community. It has been collecting offerings made to Sri Venkataramana temple
at Triupathi and to Sri Manjunatheswara Temple at Dharmastala and as such the suit temple is not a sectional one. The learned Subordinate Judge
found that the suit temple though founded by the chieftain of the Savantha dynasty for the benefit of certain families whom he had settled down at
Moolky, is a temple as defined in the Act and as such it is a place of public worship dedicated to the Hindu community in general. Such being the
case S. 2, Sub-S. (2) of Act V of 1947 would be applicable. In the view of the learned Subordinate Judge even if Act V of 1947 had not been
amended still the unamended Act would have been applicable to the suit temple. The further finding of the learned Subordinate Judge was that the
scheme which governed the suit temple related only to the management of the institution and cannot in any way exclude it from the operation of the
Act.
2. The argument of Mr. M.K. Nambiar on behalf of the appellants is that the institution in question belongs to the Gowda Saraswath Brahmin
community of the three villages constituting, the Moolkipetta and as such cannot even be said to be one belonging to a section of the Hindu
community with the result that it cannot be brought within the ambit of S. 2 (2) of Act V of 1947. Our attention was invited to the description of the
Gowda Saraswath Brahmin community contained in the South Kanara District Gazetteer, 1938 edition, published at the instance of the
Government of Madras, at pages 193, 194 and 195 and 196. It is not necessary to refer to the historical aspects of the migration of this
community from the north. But one thing is clear that after migrating from Kashmir east to Bihar and then to Tirhut and later on some of them
westwards to Goa in Southern Konkan, the ancestors of the community now seen in South Kanara must have migrated from Goa on account of
the Portuguese persecution. It was also admitted at the Bar that even now same of the Gowda Saraswath Brahmins look up to the temples in Goa
as of their family deities or Kuladevathas. The account given at page 195 may be quoted :
The Gowda Saraswatha of Goa who migrated to South Kanara and further south were mainly the Sastikars, i.e., Vaishnavas and hardly any of the
numerous temples in this district are dedicated to Siva. Nevertheless they have a high regard for Siva and some of them also observe the Siva
festivals. All of them worship his consort Gowri and his son Ganesha principally the latter''s festival in September. The very important temple in the
district is Srimad Ananteswara temple at Manjeshwar, a rich and ancient institution, which was famous even during the time of Madhvacharya who
is known to have visited it in about 1293 A. D. and the fact that even then it belonged to this community suffices to argue the existence of their
colonies in this district long before they migrated higher in larger numbers after the Portuguese persecution in the 16th century. In this temple in his
fourth man-lion incarnation Narasimha and Siva in the Linga form under the name of Ananteswara are worshipped together with equal honours.
Another Siva shrine of this community though a small one is at Karangalpadi in Mangalore. Next in importance, to the Manjeshwar temple are the
rich temples at Mulki, Mangalore, Bantval and Karkal, the last of which was erected for them by the Jaina King Bhaivava II in 1537 A. D. In all of
these latter temples Vishnu is worshipped under the name of Venkatesa or Venkataramana of the famous Vishnu God at Tirupathi. This God is a
great favourite with the community so that very few of their Temples in this district as well as further south are without images of Venkataramana
and very few of their houses without two slit boxes called dabbis in which cash offerings are dropped, one dedicated to the family God in Goa and
the other to Venkatesa at Tirupathi which are duly made over to the respective deities in course of pilgrimages. Nevertheless they still regard Goa
as their mother-country and the temples of their family Gods there as the holiest of their shrines and it is incumbent upon every one of them to visit
his family deity in Goa once at least in his life time.
3. From the above passage extracted, it is clear that the temple in question is an important one intended originally at least, for the benefit of the
Gowda Saraswath Brahmin community and it is urged that if it was an institution intended for a section of the community the provisions of Art. 26
of the Constitution can be invoked which is to the effect that subject to public order, morality and health every religious denomination or any
section thereof a hall have the right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of
religion and to own and acquire moveable and immovable property in accordance with law. The attempt, therefore, is to show that nobody except
the Gowda Saraswath Brahmin community can have anything to do with this institution. In O. S. No. 36 of 1890 on the file of the Sub-Court,
South Kanara, the question arose as to whether the suit temple is subject to the jurisdiction of the Temple Committee appointed under S. 3 of
Madras Act XX of 1863 for the supervision of the temple and the decision was that the Temple Committee had no jurisdiction to interfere with the
affairs of the temple. The judgment in that suit is Ex. A-4 in the present case and it deals at some length with the nature of the institution. Ex. A-5 is
the order of the learned Subordinate Judge in O. S. No. 15 of 1902. It was an application under S. 525 of the Civil Procedure Code, 1882, to file
an award made by the three arbitrators settling disputes concerning the management of the temples belonging to the Gowda Saraswath Brahmin
community. It stated that the award annexed to the order be passed into a decree of Court. Ex. A-6 is the decree in O. S. No. 26 of 1915 on the
file of the Court of the Subordinate Judge, South Kanara, wherein a scheme was framed for the management of the institution, and paragraphs 1, 2
and 4 of the said scheme are important according to the appellant which run as follows :
1. Shri Venkataramana temple of Moolky situated in the village of Manampadi, Nadisal Magane, Mangalore Taluk, is an ancient institution
belonging to the Gowda Saraswathi Brahmin community, i.e., the community to which the parties to the suit belong residing in the Moolkypetah,
i.e., the village of Bappanad, Karnad and Manampadi according to the existing survey demarcation.
2. The general control and the management of the affairs of the said temple both secular and religious shall vest in the members of the said
community of the said three villages other than Vaidike, by profession and be exercised by them as hereinafter provided:
4. Every member of the community whose name has been duly registered in a book called the register of electors which should be caused to be
maintained by the Council of moktessors shall be entitled to vote at the election, etc.
5. Paragraph 7 of the scheme is concerned with the application for being registered as an elector which should be sent to the parpathygar.
Paragraph 20 is with regard to the Council of moktessors. Paragraphs 22, 28, 42, 45 and 51 are important and if they are correctly interpreted,
would show that none but the members of the community have anything to do with this institution.
6. Great reliance is placed on paragraph 65 of the scheme which is to the effect that matters regarding misfeasance, malfeasance or non-feasance
in connection with the management of the temple affairs and all other matters connected with the temple shall be settled by petition to the Court
sanctioning this scheme provided, that the petition is filed by not less than two of the registered electors or by not less than two of the votaries or
worshippers of the temple. In these circumstances, a reading of the scheme as a whole would certainly leave one with the impression, as contended
for by the appellant''s Counsel, that none other than the members of the community can have anything to do with this institution. Such being the
case the appellant urges that, as stated by Dr. Bijan Kumar Makherjea (Chief Justice, Supreme Court of India) in his treatise on the "" The Hindu
Law of Religious and Charitable Trusts"", at page 185, this institution should be considered to be a private trust belonging to the community as such.
The passage in the book referred to is as follows :
A private trust providing for the material or spiritual benefit of individuals and families could not rank as a charitable trust in English law which must
be public in its character. In Hindu law, however, it is competent for a donor to create a religious trust the benefit of which is confined to the
members of a particular family or the disciples of a particular religious preceptor. So far as Debutter endowment is concerned the essential test to
distinguish a private from a public place of worship is whether the right of worshipping the idol is limited to the members of a particular community
or group or extends to all persons professing the Hindu religion.
7. There can be, therefore, no doubt that it is possible to have a private trust as distinguished from a public place of worship limited to the members
of a particular family or group. But the question is whether the institution we are concerned with is one such. The nature of this institution and the
applicability of the provisions of the Hindu Religious and Charitable Endowments Act, 1951, came up for consideration in Indian Metal and
Metallurgical Corporation Vs. Industrial Tribunal, Madras and Another, , where Satyanarayana Rao and Rajagopalan, JJ., held that the Gowda
Saraswath Brahmin community was undoubtedly a religious denomination or at any rate a section of a religious denomination and the protection
under Art, 26 of the Constitution of India should be allowed to them. Such being the case and in view of the decision in C. M. P. No. 2591 of
1951 Sri Lakshminarasimha Swamiar v. The Commissioner, H. R. E., Board, Madras (1952) 1 W.L.J. 557, that the provisions of the Act in so
far as they interfere with the autonomy of the religious denomination which owns and has the sole and exclusive control of the temple should not be
allowed to be enforced including the provisions relating to notification procedure; a levy of contribution which offends Art. 27 of the Constitution is
also illegal.
8. The learned Judges referred to the decree passed in O. S. No. 26 of 1915 on the file of the Sub-Court, South Kanara, to the effect that the
temple and its properties belong to the entire denomination of the community residing in Moolkypettah comprising the three villages above-
mentioned. The State Government preferred an appeal against this decision to the Supreme Court and it is common ground that on the 30th of
September, 1954, the appeal was dismissed as withdrawn thereby in fact confirming the decision of this Court. The order dismissing the appeal
and the certified copy of the memorandum of appeal to the Supreme Court are sought to be admitted as additional evidence by means of C. M. P.
No. 2477 of 1956. In our opinion, for a proper appreciation of the points in controversy and to come to a right conclusion as well as to deliver
judgment, it is necessary to admit them as additional evidence. All the more so because the order of their Lordships of the Supreme Court as well
as the grounds of appeal to that Court were not in existence when the learned Subordinate Judge decided the suit. We have, therefore, decided to
admit these documents in evidence.
9. Mr. M. K. Nambiar then argues that because it is held by this Court that certain provisions of the Madras Hindu Religious and Charitable
Endowments Act are ultra vires the Legislature and cannot be applied so far as this temple is concerned the impugned Act, namely. Act V of 1947
should not also be applied. The argument is that the definition of ""Temple"" in the Hindu Religious and Charitable Endowments Act (XIX of 1951)
is practically the same as set out in the Madras Act V of 1947, the Madras Temple Entry Authorisation Act, 1947, after the same was amended
and the words "" Hindu community or a section thereof "" were incorporated into the definition. If, therefore, according to the decision of this Court
which must be deemed to have been upheld by the Supreme Court the main provisions of Act XIX of 1951 cannot be said to apply to this
institution, it is urged that Act V of 1947 cannot also be applied. In His Holiness Sri Vishwothama Thirtha Swamiar of Sode Mutt, Udipi, by next
friend P.S. Charya and Others Vs. The State of Madras and Others, , a Bench of this Court to which both of us were parties had to consider the
effect of the Temple Entry Authorisation Act, 1947, with regard to Udipi Sri Krishna Temple and there, we held that the definition of Temple Entry
Authorisation Act, 1947, as amended by Act XIII of 1949 is wide enough to include even denominational institutions dedicated for use as of right
by the Hindu community or any section thereof within the purview of the Act. The provisions of the Act are not repugnant to Art. 26 (b) of the
Constitution of India. The right to manage its own affairs given to a religious denomination by Art. 26 of the Constitution is in relation to the
business of managing the property, etc., and can have no reference to depriving certain classes or sections of Hindus of their Fundamental Right
conferred unequivocally by Art. 25 (1) of the Constitution. What is contemplated by Art. 26 (6) by "" right to manage in matters of religion "" is
different from the right to practise religion. The right given relates mainly to superintendence or supervision of the property and to prescribe the
modes of worship, time at which the public can worship, etc.
10. By reading Arts. 25 and 26 of the Constitution together the question of temple entry is not involved in Art. 26 (b) but is considered only in Art,
25 (2) (6) which is an exception to Art. 25 (1) which guarantees to any citizen the right to profess, practise and propagate his religion. This
freedom of practising religion can be restricted by the Legislature when it infringes the right of all classes of Hindus to worship freely in a Hindu
religious institution of a public character. The power of the State to make a law for throwing open Hindu religious institutions of a public character
as contemplated in Art. 25 (2) (6) of the Constitution is not in any way circumscribed, restricted or whittled down by the provisions of Art. 26 (6)
giving a religious denomination the right to manage its own affairs in matters of religion. The prohibition of untouchables from entering into a
denominational temple is not a right of that denomination to manage its own affairs in matters of religion. The Madras Act V of 1947 comes within
the provisions of Art. 25 (a) (ii) of the Constitution and is made to continue in force unti1 repealed or amended by Parliament. The Act will have
full effect as it is in consonance with the provisions of the Constitution and is in fulfilment of the directive principle contained in Art. 17 of the
Constitution.
11. Article 26 of the Constitution deals with a special aspect of the subject of ""religious freedom"" dealt with under Art. 25. The right guaranteed
under Art. 25 is an individual right while the one guaranteed under Art. 26 is a collective right of a religious denomination. The practice of
untouchabilily cannot be protected under the guise of freedom to manage affairs in matters of religion. It will provoke public disorder and will be
contrary to public morality enshrined in Art. 17 of the Constitution. The freedom of religion guaranteed by Art. 25 of the Constitution is itself
subject to the qualifications prescribed in Sub-Cl. (2) of the Article itself. Except denominational or family endowments or institutions, all public
institutions will be within the scope of the Madras Act V of 1947 and the application of the Act to such temple is not ultra vires the Constitution.
We have set out there the preamble to Act V of 1947 and also its Amendment by Act XIII of 1949 and come to the conclusion that the Act as
originally passed provided for the entry of Harijans into the temples which are thrown open to the general Hindu public alone and by the Amending
Act XIII of 1949 it was made applicable even to denominational temples. So the definition of temple in S. 2 of the Madras Temple Entry
Authorisation Act, 1947 as amended by Act XIII of 1949 is wide enough to include even denominational institutions dedicated for use as of right
by the Hindu community or any section thereof within the purview of the Act, It is unnecessary therefore to elaborate any further about the
applicability of the Act to this institution and we prefer to adhere to the opinion expressed in His Holiness Sri Vishwothama Thirtha Swamiar of
Sode Mutt, Udipi, by next friend P.S. Charya and Others Vs. The State of Madras and Others, . The Shivali Brahmin community with regard to
which the temple of Sri Krishna at Udipi came up for consideration is analogous in many respects to the Gowda Saraswath Brahmin community
with whom we are now dealing. Both these communities are sections of the Hindu community and Sri Krishna temple at Udipi as well as the
temple now in question may be called denominational temples.
12. But we are pressed with the argument by the learned Counsel for the appellants that since Venkataramana''s temple is founded for the benefit
of the families of the Gowda Saraswath Brahmin residents of the three villages which constituted Mulkipet they cannot be called sections of the
community unless it be that the temple is intended for the entire body of Gowda Saraswath Brahmins residing anywhere in the territory of the Union
of India. The evidence of P. W. 1 in O. S. No. 24 of 1949 upon which great stress is laid is to the effect that the suit temple belongs to the Gowda
Saraswath Brahmins of the three villages of Mulkipet and that its management is according to a scheme as per Ex. A 6. The Gowda Saraswath
Brahmins of other villages have no right over the suit temple. The archakas of the suit temple belong to Gowda Saraswath Brahmin community and
they are chosen from the different gotra Brahmins. In cross-examination he had to admit that all Hindus other than untouchables can enter into the
temple without any permission except on special occasions mentioned by him. He goes on to say that notwithstanding this usage the members of
the Gowda Saraswath Brahmin community have a right to prevent members of other communities from entering into the suit temple and that it is
not necessary for members of other communities to seek permission of anybody for entering into the temple on ordinary occasions. The witness
also admitted that there is a ""dabbi'''' in which are put contributions meant for the temple at Hrupathi. Contributions to this ""dabbi"" are made not
only by the members of the Gowda Saraswath Brahmin community but by other communities as well. There was a suit filed by the Tirupathi
Devasthanam for recovery of these contributions which was decreed by the High Court. There is another dabbi wherein kanikas meant for
Manjunatheshwar sthala are put. A reading of the evidence of P. W. 1 cannot but lead one to the conclusion that Hindus other than untouchables
belonging to all denominations have a right to worship in the temple. Had it not been for the fact that this is a temple to which S. 92 of the CPC
was applicable and as such a public temple it would not have been possible for the Court to have framed a scheme in O. S. No. 26 of 1915. It is
idle of the appellants to contend now that the institution is a private trust of a section of the community which can prevent other Hindus from
worshipping in the temple as of right without let or hindrance during prescribed times.
13. The learned Government Pleader appearing for the State drew our attention to Ramanatha Iyer v. Board of Commissioners for H. R. E.
(1954) 1 M.L.J. 239=66 L. W. 1024, and the various observations contained in different portions of that judgment. There, it was held by a Bench
to which one of us was a party that where there has been a dedication of a temple to a section of the Hindu Community though not to the entire
Hindu community it would be sufficient to bring the institution within the definition of ""temple"" in S. 9 (2) of the Madras Hindu Religious and
Charitable Endowments Act which is S. 6 (15) of Madras Act XIX of 1951. Dedication of a temple to the public is a fact which could be inferred
from the circumstances of a particular case and need not necessarily be based on documentary evidence. So long as there is no intention to
exclude the right of worship the restriction on the right of the outsiders to interfere with the management of the temple is not a determining factor in
deciding whether it is a temple within the definition of the Act. Even if a village community has founded a temple the community nonetheless is a
section of the public and the temple is therefore, a public temple. The essential requirements of a temple are that it should be a place dedicated to
or founded for the benefit of the Hindu community or a section of it and should be used as a place of worship as of right.
14. The discussion at pages 241 and 243 of the report makes the point quite clear and we prefer to follow the observations contained therein. As
a matter of fact it cannot be said on the evidence of P. W. 1 that a section of the Hindu community alone has a right to worship in the temple
without let or hindrance. Exhibit A-8 dated 27th April, 1937, contains the inspection notes of the Commissioner, Hindu Religious Endowments,
Madras, wherein it is stated that one of the many sources of income for the temple is the oracle.
15. The day of his visit being the Dasami day the oracle was working and large crowds had assembled to get predictions from the oracle by paying
four annas for every question. Exhibit A-9 is a similar inspection report dated 3rd March, 1939, and there also the functioning of the oracle and
dabbi"" collections are mentioned. We have already referred to the admissions made by P. W. 1 in this connection.
16. We have, therefore, no doubt whatever that the learned Subordinate judge was right in holding that this suit temple is one as defined in S. 2 (1)
of Act V of 1947. But with regard to the administration of the temple there are certain peculiar features as can be gathered from the scheme
framed in the suit and the matter has been dealt with in detail by this Court i Indian Metal and Metallurgical Corporation Vs. Industrial Tribunal,
Madras and Another, . As has been held in His Holiness Sri Vishwothama Thirtha Swamiar of Sode Mutt, Udipi, by next friend P.S. Charya and
Others Vs. The State of Madras and Others, , Art. 26 of the Constitution relates to administration of property and to that extent the Gowda
Saraswath Brahmins have a special privilege in the temple. We need only refer to the various provisions of the scheme in O. S. No. 26 of 1915.
But there are certain other privileges which in view of the special character of this temple have to be preserved so far as the Gowda Saraswath
Brahmin residents of the three villages are concerned. They are that during santharapanas no one other than Gowda Saraswath Brahmins can be
allowed to enter the temple and every day during Mahanaivedyam it is open to the trustees to prohibit the entry of persons other than members of
the community to which the suit temple belongs into the precincts of the temple. Such restrictions can be allowed during the time of sahasrakalasam
once a year and santharpanams during the five days of Rathotsavam, During all these religious ceremonies the trustees can regulate the entry of
persons other than Gowda Saraswath Brahmins into the shrine. On other days and other occasions, as this is a public temple as defined in the Act
we do not see any justification for not applying Act V of 1947 to this temple. The learned Subordinate judge, except as regards the above matter
has come to the correct conclusion and therefore subject to the modifications mentioned above the appeal in dismissed.
17. With regard to the costs we are of opinion that the learned Subordinate Judge was wrong in making the plaintiffs personally liable for the costs
of the defendant. It seems to us that in a matter like this where the litigation has been bona fide costs should come out of the temple lands and that
the plaintiffs will be entitled to charge the institutions with costs in this Court and in the Court below.
18. A. S. No. 146 of 1952. This appeal arises against the dismissal of a similar suit in regard to an order made by the Government G. O. Ms. No.
721 dated 6th August, 1949 to the effect that Sri Venkataramana temple in Mangalore town is a temple as defined in S. 6 of Madras Act V of
1947. The claim made was that it was a private temple founded by the Gowda Saraswath Brahmins community and that it belongs to the said
community. The learned Sub ordinate Judge has come to the same conclusion as in the other suit with regard to Moolkipet temple and hence this
appeal.
19. The affairs of this temple are governed by a scheme framed in O. S. No. 5 of 1927. Ex. A-4 dated 26th March, 1929, on the file of the
District Court, South Kanara. Paragraph 14 of the judgment of the learned District Judge commences by stating that the plaint Temple called the
Sri Venkataramana Temple of Mangalore belongs to the Gowda Saraswath Brahmin community and is possessed of considerable moveable and
immoveable properties. After discussing the evidence in the case a scheme was framed incorporating the conclusions arrived at by the learned
District Judge. Paragraph 2 of the scheme is to the effect that the temple in question is an institution belonging to the Gowda Saraswath Brahmin
community. There are various other provisions made with regard to the management of the temple. It is, therefore, clear that the temple is one to
which both Act. XX of 1863 as well as Act II of 1927 had been made applicable. The definition of temple in S. 9(12) of Act II of 1927 is similar
to the definition in Act XIX of 1951 with only slight variations and practically the same definition is contained in Act V of 1947. It is, therefore,
evident that the argument cannot be advanced that the temple in question is not one to which Act V of 1947 will not apply. The evidence of P. W.
1 in the suit out of which this appeal has arisen if properly understood could only mean that the temple is a public institution though its affairs are
managed by the members of the Gowda Saraswath Brahmin community of Mangalore as laid down in the scheme referred to above.
20. P. W. 1 recounts the various religious ceremonies in the temple at which the members of the other communities cannot participate. What he
states is, that Rathothanvam in Magha Sudha will be celebrated for six days, Pavitraropanam in Sravanam Suddha, Rig Upakarma in Sravanam
Poornami, Vinayaka Chathurthi on Bhadrapada, Ananthavratham in Bhadrapada and on some of these occasions there would be Brahmin
santharpanam; food after naivedyam would be served as prasada to the Brahmins, Only members of the Gowda Saraswath Brahmin community
can participate in santharpanas. On all these occasions no non-Gowda Saraswath. Brahmin would be allowed inside the premises of the temple.
Likewise no, non-Gowda Saraswath Brahmins would be allowed inside at the time of Mahanaivedayam and during Satakalaaha and
Sahasrakalasha. We have already referred to the restrictions regarding the participation of the other sections of the Hindu community in the
religious ceremonies during the relative times and periods in our judgment with regard to Moolkipet temple. The same would apply so far as the
Mangalore temple also is concerned as also to the ceremonies mentioned by P. W. 1.
21. But it is urged by the learned Government Pleader that in regard to the Mangalore temple notice under S. 80 of the CPC is not sufficient and
he relies upon the decision in Bhaghchand Dagadusa v. Secretary of State for India (1987) ILR 51 Bom. 725 at 747=26 L.W. 809 (P.C.),
Vellayan Chettiar v. Government of the Province of Madras (2), Government of Province of Bombay v. Prestonji Ardeshir Wadia and others (3).
We do not think that in a case of this kind it can be held that Ex. A. 10 is not proper notice which statedly refers to S. 80, CPC and gives
intimation that a suit would be filed for setting aside the order of the Government of Madras in G. O. Ms. No. 721, dated 6th August, 1949. The
learned Subordinate Judge has held following Vellayyan Chettiar v. The Government of the Province of Madras ILR 1948 Mad. 214, 217,
219=60 L.W. 630 (P.C.) and Province of Bombay v. Prestonji Ardheshir Wadia ILR 1949 Bom. 110 at 116=62 L.W. 444 (P.C.), that there
was want of proper notice in the case. We are not inclined to hold that notice in this case is insufficient though we agree with the learned
Subordinate Judge that S. 2 (1) of Act V of 1947 is applicable and that Art. 26 of the Constitution cannot refer to the entry contemplated in Act V
of 1947. In this connection we may also consider the recent legislation contained in the Untouchability (Offences) Act. 1955 (XXII of 1955) which
by S. 3 provides for punishment for enforcing religious disabilities. After coming into force of Act XXII of 1955, all the arguments on behalf of the
appellants would be pointless when once it is found that it is a place of public worship. Subject to the modifications mentioned in Appeal No. 145
of 1952 and the other referred to above this appeal is also dismissed. There will be a similar order with regard to costs. The costs of the State in
both the appeals will come out of the suit temple.
