The appeal is directed against the judgment and decree dated 3.4.1990 made in O.S.No.351 of 1987. The suit is one filed under Sec.70(1) of he H.R. & C.E. Act, 1959 by the appellant herein seeking for the relief of setting aside the order passed by the defendantthe Commissioner of H.R. & C.E. (Administration), Madras-34 A.P.No.36 of 1979, dated 6.1.1987 and for permanent injunction restraining the defendant from giving effect to the notification issued by the Assistant Commissioner. H.R. & C.E., Madras calling for appointment of non-hereditary trustees.

2. The case of the appellant/plaintiff is that the plaintiff is a Society registered under the provisions of the Societies Registration Act having the aims and objects to disseminate knowledge of Hindu Religion and Philosophy as derived from the Vedas. In general the objects of the plaintiff are to promote culture, religion and other social activities. The plaintiff had members numbering more than 7000 and subsequently it was reduced to 1024 members as others have ceased to be members as they had committed default in payment of the subscription fees and there are different kinds of members.

One P.V. Subramanyan, who is one of the founder members of the samajam had settled 17,606 sq.ft of land in favour of the plaintiff, having regard to the eager of the plaintiff to have a temple of Sri Guruvayoorappan (Sri Krishna) erected in the Ram Nagar Colony and for conducting the other religious activities connected with the said samajam as described in the Memorandum of the samajam, The settlement was of the year 1973. Thereafter the samajam put up a temple out of the funds contributed by the members and raised by them And the Kumbabishekam of the temple was performed in the year 1975. Thus the temple is not a public religious institution coming within the purview of the H.R. & C.E. Act. The plaintiff immediately after the performance of the Kumbabishekam filed an application in O,A.No.82 of 1976 under Sec.63-A of the Tamil Nadu Hindu Religious and Charitable Endowments Act, praying for declaration that the said temple is not a religious institution. The Deputy Commissioner by his order dated 21.9.1978 dismissed the application. Aggrieved by the said order, the plaintiff filed an appeal in A.P.No.36 of 1979 before the Commissioner, who is the defendant in the suit and alternatively sought for declaration declaring the plaintiff as hereditary trustee. The Commissioner has confirmed the order of the Deputy Commissioner. Hence the statutory suit was filed.

3. The trial Court on the pleadings framed the following two issues.

(1) Whether the subject temple is a public temple or a private temple

(2) Whether the plaintiff is entitled to the reliefs sought for

Upon considering the document Ex.A-2 the settlement deed, the trial Court has come to the conclusion that the land has been endowed for the purpose of putting up Guruvayoorappan temple only and also drawn adverse inference that the plaintiff did not file the books of accounts for the purpose of finding out as to whether the entire expenses have been borne by the members of the plaintiff Samajam and also taken into consideration the evidence adduced by P.W.1 and nonsuited the plaintiff for the relief as prayed for and declared the temple as a public temple.

4. Mr. Venkataraman, learned senior counsel appearing for the appellant submits that the approach of the trial Court in nonsuiting the plaintiff for the relief sought for on the ground of adverse inference cannot at all be legally sustainable. The adverse inference can be drawn only when the plaintiff defaulted in producing the documents on demand. No such demand has been made for production of the documents and in the absence of any such demand the adverse inference drawn against the plaintiff is not legally sustainable. For that purpose he placed reliance on the decision of the Supreme Court in Ramrad Kuer v. Dwarika Prasad Singh and others, A.I.R. 1967 S.C.1134: (1967) 2 S.C.J.789 and the decision of the Kerala High, Court in GeorgeDavis Mooken v. Ollukaran Thomakutty Varied and others, AJR. 1975 Ker 163, [LQ/KerHC/1974/17] which followed the earlier decision of the Apex Court.

5. In respect of the oral evidence with which much reliance has been made by the trial Court to declare the temple as a public temple on the ground that the public are allowed to participate in the worship and also allowed to give offerings, learned senior counsel contended that the mere fact of allowing the public to do poojas and participate in the worship and give offerings would not by itself constitute the deciding factor, which may be one of the several factors, but it cannot be a conclusive factor. He also relied on the following decisions in sup port of his contention.

(1) Babu, Bhagwan Din and others v. Gir Har Saroop and others, (1940) 1 M.L.J. L.L.R. 67 J.A.1: A.I.R. 11940 PC. 7 [LQ/PC/1939/60] ; (2) Madras Hindu Religious Endowments Board v. Deivanai Ammal, by power of attorney. agent, T.V.Mahalinga Aiyar, (1953) 2 M.L.J.688: A.I.R.1954 Mad. 482 [LQ/MadHC/1953/242] ; (3). Chonachalam Pillai and others v. Sankaranarayanan Pillai (died) and others, (1970) 1 M.L.J. 78; (4) TD. Gopalan v. Commissioner of H.R & C.E. (1973) 1 M.L.J.43 (S.C.):(1973) 1 S.C.J.169: (1973)] An.WR.43 (S.C.): A.I.R. 1972 S.C. 1716; (5) Sri Radhakanta Deb, and another v. Commissioner of H.R. & C.E. Orissa, (1981) 2 S.C.C.226; (6) Commissioner of R.R. & CE. Board and another v TC. Palanichamy and seven others, (2003) 1 M.L.J.414: (2003) 1 C.T.C.65,

6. On the other hand, learned Government pleader appearing for the respondent submitted that throughout the proceedings the plaintiffs are inconsistent in their plea. Even Journal Reports in the plaint before the trial Court the plaintiff has not restricted the prayer in respect of the relief under Sec.63(a) alone but sought for alternative prayer before the Government to declare the plaintiff as a hereditary trustee. In view of the said alternative prayer the plaintiff impliedly admitted the temple is a public temple. In the fact the implied admission, the appellant c contend otherwise before this Court.

7. He further contended that the trial Court has considered the evidence of P.W.1, has categorically admitted that the public allowed to worship and allowed to give offerings and allowed to do archanas, which admission would clinchingly prove that character of the temple is only public in nature and not a private temple. In support his contention, learned Government pie for the respondent relied on the following judgments. (1) T.V. Durairajulu Naidu v. Commissioner, H.R. & C.E., (Administration) Department, 1999 L.W. 630; (2) R.Narayanaswami and others v. Sidha Raja Manicka Prabhu Temple another, (1990) 2 L.W. 60.

8. 1 heard the arguments of the learned counsel on either side and perused the materials on record.

9. On the face of the judgments, their ii fallacy on the construction of the settlement deed Ex.A2. It is not as if that the property has been endowed to the samajam for the P pose of putting up temple alone as interpreted by the authorities below as well as the 11 Court. The settlement deed very categorically states that the settlee i.e., the plaintiff he has been eager to have a temple for Guruvayoorappan (Sri Krishna) erected in Ram Nagar Colony and for conducting other religious activities connected with the said Samajam as described in the Memorandum of the samajam and the settlor executed the settlement deed of the property in favour of the settlee for the purpose of erecting a temple of Lord Guruvayoorappan and for the above said other purposes. The memorandum of the samajam has been marked as Ex.A1. Clause 3 of the memorandum speaks about the objects of the samajam. Subclause (vi) of the objects of the plaintiff is to construct, own and maintain temples and other places of worship, mandapams and the like with the proviso that the admission to the temples and other places of worship, mandapam and like, constructed and owned by the samajam shall be at the discretion of the samajam. The recital contained in the settlement deed, which has been extracted above and also the above Subclause (vi) would categorically make it clear that the dedication/endowment is in favour of the plaintiff for the purpose of putting up Guruvayoorappan temple and also putting to use of the property for other religious purposes. Hence on the face of the reading of the settlement deed, the finding arrived at by the statutory authorities and confirmed by the trial Court that the land has been dedicated for the purpose of temple alone cannot be legally sustainable.

10. The drawing of adverse inference due to nonproduction of the books of accounts to prove that the building has been put up from and out of the funds contributed by the members is also not in accordance with law. Only when the Court directs a person to produce the accounts and if the person against whom such a demand is made has not produced the accounts, then it is for the Court to draw an adverse inference. In the absence of any such demand or an order from the Court for production of the documents an inference adverse to the plaintiff cannot be taken or drawn. Useful reference can be had to the judgment of the Supreme Court in Ramrati Kuer v. Dwarika Prasad Singh and others, A.I.R. 1967 S.C 1134: (1967) 2 & CJ 789, wherein in para. 9 the Supreme Court has held as follows:

"9. Fourthly, it is urged that the respondents did not produce any accounts even though their case was that accounts were maintained and that Basekhi Singh used to give maintenance allowance to the widows who were missing separately. It is urged that adverse inference should be drawn from the fact that accounts were not produced by the respondents and that if they had been produced by the respondents and that if they had been produced that would have shown payment not of maintenance allowance but of half share of the income to the widows by virtue of their right to the property. It is true that Dwarika Prasad Singh said that his father used to keep accounts.

But no attempt was made on behalf of the appellant to ask the Court to order Dwarika Prasad Singh to produce the accounts. An adverse inference could only have been drawn against the plaintiffs respondents if the appellant had asked the Court to order them to produce accounts and they had failed to produce them after admitting that Basekhi Singh used to keep accounts. But no such prayer was made to the Court, and in the circumstances no adverse inference could be drawn from the nonproduction of accounts. But it is urged that even so the accounts would have been the best evidence to show that maintenance was being given to the widows and the best evidence was withheld by the plaintiffs and only oral evidence was produced to the effect that the widows were being given maintenance by Basekhi Singh. Even if it be that accounts would be the, best evidence, of payment of maintenance and they had been withheld, all that one can say is that the oral evidence that maintenance was being given to widows may not be acceptable; but no adverse inference can be drawn (in the absence of any prayer by the appellant that accounts, be produced) that if they had been produced they would have shown that income was divided half and half in accordance with the title claimed by the appellant."

The above said judgment of the Supreme Court has been followed by the Kerala High Court in George Davis Mooken v. Ollukaran Thomakarty Varied and others, AIR. 1975 Ker 163 [LQ/KerHC/1974/17] . Hence, the reasoning of the trial Court for drawing adverse inference cannot also be the case of the, defendant legally sustainable.

11. The other reason that P.W.1 has admitted that the public are allowed to participate in the worship and do poojas in the temple would not by itself be a deciding factor as to whether the particular temple is public or private in nature. This stand has been taken in a catena of decisions of this Court as well as the apex Court right from Privy Council.

12. Learned Government Pleader has relied on the two decisions in T.V. DurairajuluNaiduv. Commissioner, H.R. & C.E., (Administration) Department, 1999 L.W 630; R. Narayanaswami and others Y. Sri Sidha Raja Manicka Prabhu Temple, (1990) 2 L.W. 60, to contend that the temple is a public temple and also to contend that the plaintiff having chosen to seek the remedy for declaring as hereditary trustee of the suit temple on the footing that it is a public temple cannot wriggle out from that and contend that the particular temple is not a public temple and it is only a private temple.

13. In respect of this contention, the learned senior counsel appearing for the appellant submits that it is true that the amendment was made before the Commissioner, when the appeal was pending. But it was only an alternative relief sought for. However, When the statutory suit was filedbefore the trial Court, that relief was not pressed into service and it was totally abandoned. Even before this Court that relief is abandoned. Though on the first look of the judgments relied on by the Government Pleader the same seem to have advanced the case of defendant, on a close look of the facts of the case, particularly, the first issue as to whether the subject temple is a public temple or a private temple, which has been framed on the basis of the leadings of the parties, the reliance of the judgment would not further advance the case of the defendant.

14. Further, the Supreme Court in the decision in Sri Radhakanta Deb and another v. Commissioner of H.R. & CE., Orissa, (1981) 2 S.C.C 226 has held that the question as to whether the religious endowment is of a private nature or of a public nature has to be decided with reference to the facts proved in each case and it is difficult to lay down any test or tests which may be of universal application. It is manifest that where the endowment is lost in antiquity or shrouded in mystery, there being no document or revenue entry to prove its origin, the task of the Court becomes difficult and it has to rely merely on circumstantial evidence regarding the nature of the user of the temple. In the instant case, however, as there are two documents which clearly show the nature of the endowment, our task is rendered easier. It is well settled that the issue whether a religious endowment is a public or a private one must depend on the application, of legal concept of a deity and private endowment, as may appear from the facts proved in each case.

15. As already pointed out Ex.A-2 has clearly proved that the settlor as one of the members of the Samaj am as stated in Clause 3(vi) of, the memorandum of the samajam, which has been reproduced earlier. On the face of the recitals contained in the settlement deed Ex.A-2 and the memorandum of the samajam Ex.A-1, the Division Bench Judgment of this Court relied on by the learned Government Pleader, would not further advance the case of the defendant.

16. The other judgment of this Court relied on by the Government Pleader in T.V. Durairajulu Naidu v. Commissioner, H.R. & CE., (Administration) Department, 1999 L.W 630, was a case in which on facts it was found that the founder had built Sri Ramar Madalayam; is a charity for the salvation of his soul. He dedicated the same to the public and required under the Will to use as a temple and a mutt. On that facts, the Court has come to the conclusion that nothing more is necessary than this unequivocal dedication for the public to enjoy as of right. That is not the facts of the case before me. Hence that judgment is also in no way useful.

17. Learned Government pleader, then contended that after putting up of the temple and doing Kumbabishekam in the year 1975 the plaintiff has allowed the public to take part in the worship as a matter of right and even the Inspector of the Department, a usual visitor to the temple has adduced evidence that the temple is kept open to the public.

18. Except the mere argument advanced across the Bar, and the ipse dixit of D.W.1, there is no evidence worth mentioning available on record to come to the conclusion that the public were allowed to worship as a matter of right. On the basis of the available evidence, the trial Court was not able to give a clear and categorical finding as to the right of the public to worship in the temple. The trial Court proceeded to hold that "it would be probable" or that there are chances or possibility for the public to worship in the temple and the public might have given offerings and also performed archanas to the deity in the temple. Even the Inspector of H.R. & C.E. Department, who adduced evidence had not chosen to mark any documents by recording any statement from the members of the public as to their right to worship in the temple in question.

19. Hence, I am of the view that this aspect of the matter requires reconsideration by the trial Court. Hence the judgment of the trial Court, which is appealed against is set aside and the matter is remitted back to the trial Court for reconsideration after allowing the parties to adduce evidence both oral and documentary afresh.

20. Learned counsel for the appellant submits that now the jurisdiction of the Sub-Court is Chengalpattu. The Registry is directed to send back the records, if any, along with the remittal order to the Sub-Court, Chengalpattu so as to enable the trial Court to dispose of the matter expeditiously. With this observation, the appeal is disposed of. No costs.