K. Abraham Mathew, J.The plaintiffs are residents of Mannadi in Kadambanad village in Adoor Taluk. They are worshipers of Mannadi Bhagavathy Temple. The temple is a public temple. The plaint schedule properties belong to the temple. The administration of the temple happened to be in the hands of Mangalath tarwad, to which the defendants belong. They have some rights to conduct certain rituals in the temple. They are only trustees. The main festival in the temple is Uchabali and it is conducted by the public. The income from the properties and the temple can be used only for the purposes of the temple. But the defendants misappropriated the income for their own use and they do not maintain any accounts. On these allegations the plaintiffs representing the worshippers prayed for removal of the defendants from the management of the temple and for framing a scheme for its administration and for a direction to the defendants to account for the income from the properties and the temple for three years prior to the institution of the suit.

2. The second defendant alone filed a written statement. His contention is that the temple and the properties are in the ownership and possession of Mangalath tarwad and the defendants reside in the house in the premises of the temple. The main ritual is Kalamezhuthum Pattum and it is conducted by the tarwad. Nivedyam is offered by the tarwad and the deity is their family deity. The tarwad has allowed the public to worship in the temple. The offerings made at the temple are given to the tarwad. The contributions received from the public are spent for the purposes of the temple. The defendants are not liable to account for the income. The second respondent prayed for dismissal of the suit.

3. The learned Sub Judge after the trial came to the conclusion that the temple is a private temple of the defendants tarwad and the plaintiffs are not entitled to any of the reliefs prayed for in the suit. The judgment and the decree are challenged in this appeal.

4. Heard the learned counsel Sri. Mohanakannan and V.B. Raman Unni appearing for the appellants, learned Senior counsel Sri. K. Jayakumar and Sri. K. Jagadeesachandran Nair appearing for the respondents. I also heard learned senior counsel Sri. T. Krishnan Unni; and Sri. Anchal C. Vijayan who filed applications for impleadment of strangers.

5. Certain facts are admitted. The management of the Bhagavathy temple at Mannadi has been with the Mangalath tarwad for several decades. The public are allowed to worship in the temple. The temple gets contributions from the public.

6. Learned Senior counsel Sri. Jayakumar submits that in Kerala there is no presumption that temples are public temples though it is not so in other parts of India; all temples in Kerala are open to the public. He would submit that merely because public are allowed to worship, the temple does not become a public temple. He relies on the observations in Malabar and Aliyasanthana Law written by Sundara Aiyar. He also places reliance on the various decisions of the Supreme Court including Jadunath Roy and others v. Parameswar Mullick and others (AIR 1940 Privy Council 11), Tilkayat Shri Govindlalji Maharaj Vs. The State of Rajasthan and Others, and Pratapsinhji N. Desai Vs. Deputy Charity Commissioner, Gujarat and Others, The learned counsel Sri. Jagadeesachandran Nair also places reliances on decisions of the Privy Council and of the Supreme Court in support of his arguments that merely because public are allowed to worship in a temple the court should not come to the conclusion that it is a public temple and dedication should not be inferred easily. He has brought to my notice the decisions of the Privy Council in Mundacheri Koman v. Thachangat Puthan Vittil Achuthan Nair and others (AIR 1934 PC 230 [LQ/PC/1934/76] ), Babu Bhagwan Din and others v. Gir Har Saroop and others (AIR 1940 PC 7 [LQ/PC/1939/60] ) and of the Supreme Court in The Bihar State Board Religious Trust, Patna Vs. Mahant Sri Biseshwar Das, , Vallabharaya Swami Varu (Deity) of Swarna, represented by its Executive Officer Vs. Deevi Hanumancharyulu and Others, , and of this Court in Sree Kandakarna Kshethra Vs. Karunakara Thandar and others, .

7. Learned Senior counsel for the appellants does not dispute the above proposition of the respondents. He has invited my attention to a catena of decisions of the Supreme Court which lay down the tests to determine whether a temple is a public or private temple. Some of the important decisions relied on by him are Deoki Nandan Vs. Murlidhar, , Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, , Tilkayat Shri Govindlalji Maharaj Vs. The State of Rajasthan and Others, and Goswami Shri Mahalaxmi Vahuji Vs. Ranchhoddas Kalidas and Others, . He also places reliance on the observations in the Maynes Treatise on Hindu Law and Usage and in the Malabar and Aliyasanthana Law by Sundara Aiyar.

8. The tests to determine whether the temple is public or private have been summed up in Maynes Treatise on Hindu Law (17th Edn. Ch. 28 pages 1576 and 1577) as follows:

"If

1. the beneficiaries are ascertained individuals,

2. the grantor has been made in favour of an individual and not in favour of a deity,

3. the temple is situated within the campus of the residence of the donor,

4. the revenue records or entries suggest the land being in possession of an individual and not in the deity

it is a private temple.

On the other hand, if the following conditions are satisfied it is a public temple (1) The public visit the temple as of right 2) The endowment is in the name of deity 3) The beneficiaries are the public, 4) The management is made through the agency of the public or the accounts of the temple are being scrutinized by the public."

9. The second defendant relies on Ext B1 partition deed executed by the members of his tarwad to prove that the temple and the properties belong to his tarwad. Ext B1 was executed in 1123 M.E. corresponding to 1948 A.D. The partition deed mentions that the temple and the properties are the properties of the tarwad. Provision has been made for their administration. It is on the basis of this document the learned Sub Judge held that the temple and the properties belong to the tarwad.

10. There cannot be any quarrel about the proposition that a partition deed cannot create a right in favour of the members of a family for the first time in a property over which it has no title, right or interest. Only a pre-existing right can be the subject matter of a partition deed. It is very strange that Ext B1 partition deed does not mention how the tarwad acquired title to the temple or the properties. The second defendant has not been able to explain the source of the right of the tarwad to the temple and the properties. Merely because there is a mention in the partition deed that the temple and the properties belong to the tarwad, it does not get any title to them. The learned Sub Judge went wrong in holding that Ext B1 partition deed proves the title of the tarwad to the temple and the properties.

11. In the erstwhile Travancore settlement took place more than 100 years ago. Exts A1 and A2 are copies of the settlement registers. In these registers the plaint schedule properties are shown to be the properties of Mannadi Bhagavathy. It is further shown that it is thanathu property. The name of Mangalath tarwad does not find a place in the settlement registers. In the Travancore State Manual published by the Government of Kerala it is shown that thanathu lands were originally government lands. Thanathu lands were lands for which no pattas were issued at the last settlement and which were enjoyed by the tenants either on payment of the rent fixed at the settlement or on Kuthakapattam given by the department of government. (See Travancore State Manual, Vol. III Ch. XV, Pages 192 and 193 published by government of Kerala in 1996). In Malayalam thanathu means ownership. (See Malayalam-English Dictionary published by NBS). Exts A1 and A2 indicate that the plaint schedule properties were originally government lands, which later came in the ownership of Mannadi Bhagavathy temple.

12. The evidentiary value of the entries in revenue records has been discussed by the Supreme Court in various decisions. As observed by the Supreme Court in State of A.P. Vs. Hyderabad Potteries Pvt. Ltd. and Another, the entries in revenue records alone will not prove title to the property. But at the same time in E. Parashuraman (D) by LRs. Vs. V. Doraiswamy (D) by LRs., the apex court held that the entries in revenue records may raise a presumption as to the title of the property though they do not conclusively confer title.

13. In the absence of any evidence to prove how the defendants tarwad got title to the temple and the properties, the only inference that may be drawn from Exts A1 and A2 revenue records is that they belong to the deity, those entries being the best evidence available.

14. It may also be noticed that the survey number of the properties given in Ext B1 partition deed is different from those of the plaint schedule properties. Learned counsel Sri. Anchal C. Vijayan submitted that the survey number given in Ext B1 is conspicuously absent in Exts A1 and A2 Settlement Registers and there is no property comprised in the said survey number and the survey number is imaginary.

15. Sri. T. Krishnan Unni, learned counsel for the petitioners in the impleading application submits that the defendants have no case that the tarwad was entitled to exclude the public from any function and it also fully supports the view that the temple is a public temple. I think there is much weight in the submission. In Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, a three Judge of the Supreme Court has made the following observation:

"Similarly, when user by the public generally to the extent to which there is a worshipping public in the locality is established, it is not unreasonable to presume that the user by the public was as of right, unless there are circumstances clearly suggesting that the user must have been permissive or that the authorities in charge of the temple have exercised such arbitrary power of exclusion that it can only be ascribed to the private character of the institution".

(emphasis supplied)

This also lends assurance to the conclusion that Mannadi Bhagavathi temple is a public temple.

16. The defendants are only trustees of the temple. There is no dispute that they do not maintain an account. Their definite case is that they are not bound to account to anyone. As trustees of the public temple they should have maintained proper accounts and should have used its income only for the purposes of the temple. They are guilty of mismanagement of the affairs of the temple. They are liable to be removed from the administration of the temple.

17. It is also the argument of the learned counsel for the respondents that deity is a necessary party and the failure to implead it is fatal. In Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, the Supreme Court took the view that in a suit for declaration that the deity and the properties attached to the temple are not under a public trust but are the properties of the plaintiff the deity is a necessary party. The principle is applicable to the facts of the case though it is the plaintiffs in this case who allege that the temple is a public temple. In Govindan Nair v. Gopalakrishna Sharma (1988 (1)KLT 739) this court also took the view that in a suit for framing a scheme for administration of the properties of a temple the deity is a necessary party. I accept the argument of the learned counsel that the suit is bad for nonjoinder of the deity.

18. The learned counsel for the appellants made a request that the matter may be remanded to enable the plaintiffs to implead the deity as a party to the suit. I think the request is reasonable.

In the result, the judgment and the decree of the lower court are set aside and the matter is remanded. The parties will appear before the trial court on 12.2.2015. The plaintiffs shall file application for impleadment along with application for consequential amendment as provided in Order 1 Rule 10(4) of the Code of Civil Procedure within two weeks of their appearance in the lower court. The impleading applications and other interlocutory applications are closed. The lower court will appoint a receiver for the temple and its properties till the suit is disposed of.