civil appellate jurisdiction civil appeal number 403 of 1956.
appeal from the judgment and order dated april 11 1956 of
the madras high companyrt in appeal number 145 of 1952 arising out
of the judgment and decree dated march 31 1951 of the companyrt
of the subordinate judge south kanara in original suit number
24 of 1949.

k. nambiyar m. l. naik j. b. dadachanji s.n. andley
rameshwar nath and p. l. vohra for the appellant in c.a. number 403 of 1956 and respondents in special leave petition
number 327 of 57.

k. daphtary solicitor-general of india b. b. l.
iyengar and t. m. sen for the respondents in si number 403 of
56 and petitioner in special leave petition number 327 of 1957. 1957. numberember 8. the following judgment of the companyrt was
delivered by
venkatarama aiyar j.-the substantial question of law which
arises for decision in this appeal is whether the right of
a religious denumberination to manage its own affairs in
matters of religion guaranteed under art. 26 b  is subject
to and can be companytrolled 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 number companyprised in the
state of mysore there is a group of three villages
mannampady bappanad and karnad companylectively knumbern as moolky
petah and in the village of mannampady there is an ancient
temple dedicated to sri venkataramana renumberned 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 knumbern as gowda saraswath brahmins. it is
said that the home of this companymunity in the distant past was
kashmir that the members thereof migrated thence to mithila
and bihar and finally moved southwards and settled in the
region around goa in sixty villages. they companytinued 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 companyhin. 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 knumbern as tirumalaivaru or venkataramana and
endowed lands therefor. in companyrse of time other families
of gowda
saraswath brahmins would appear to have settled in the three
villages companystituting moolky and the temple came to be
managed by members of this companymunity residing in those
villages. in 1915 a suit 0. s. number 26 of 1915 was instituted in the
court of the subordinate judge of south kanara under s. 92
of the companye 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 companymunity i.e. the
commudity 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 companymunity. clause 3 provides for the actual management being carried
on by a board of trustees to be elected by the members of
the companymunity aforesaid from among themselves. then follow
elaborate provisions relating to preparation of register of
electors companyvening of meetings of the general body and
holding of elections of trustees. this decree was passed on
march 9 1921 and it is companymon ground that the temple has
ever since been managed in accordance with the provisions of
the scheme companytained 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 2 2  defines temple as a place by whatever name
knumbern which is dedicated to or for the benefit of or used
as of right by the hindu companymunity in general as a place of
public religious worship. section 3  1  enacts that
numberwithstanding any law custom or usage to the companytrary
persons belonging to the excluded classes 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
numbermember 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 companymitted 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 number a
temple as defined in this act 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 companyrt in a spit filed before it within six
months from the date of the decision of the provincial
government. it is the companytention of the appellants-and
that in our opinion is well-founded-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 number 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
that the sri venkataramana temple at moolky was number a
temple as defined in s. 2 2  of the act. it was alleged in
the plaint that the temple was founded for the benefit of
the gowda saraswath brahmins in moolky petah that it had
been at all times under their management that they were the
followers of the kashi mutt and that it was the head of the
mutt that performed various religious ceremonies in the
temple and that the other companymunities had numberrights to wor-
ship therein. the plaint was filed on february 8 1949. on
july 25 1949 the province of madras filed a written
statement companytesting 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 companysequential 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 companymunity 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 companytended 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 inasmuch as they were a
section of hindu companymunity and that in companysequence the
suit was liable to be dismissed. on january 26 1950 the companystitution came into force and
thereafter on february 11 1950 the plaintiffs raised the
further companytention by way of amendment of the plaint that
in any event as the temple was a denumberinational one they
were entitled to the protection of art. 26 that it was a
matter of religion as to who were entitled to take part in
worship in a temple and that s. 3 of the act in so far as
it provided for
the institution being thrown open to companymunities other than
gowda saraswath brahmins was repugnant to art. 26 b  of the
constitution and was in companysequence void. on these pleadings the parties went to trial. the
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 companyrse of time 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 companytention 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 number
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 companyrt of madras a. s. number 145 of 1952.
it is number necessary to refer to anumberher 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 companytrol of
temples and mutts. the act created a hierarchy of officials
to be appointed by the state and companyferred on them enumbermous
powers of companytrol and even management of institutions. companysequent on this legislation a number of writ
applications were filed in the high companyrt of madras
challenging the validity of the provisions therein as
repugnant to arts. 19 25 and 26 of the companystitution and
one of them was writ petition number 668 of 1951 by the
trustees of sri venkataramana temple at moolky. they
claimed that the institution being a denumberinational one it
had a right under
art. 26 b  to manage its own affairs in matters of religion
without interference from any outside authority and that
the provisions of the act were bad as violative of that
right. by its judgment dated december 13 1951 the high
court held that the gowda saraswath brahmin companymunity was a
section of the hindu public that the venkataramana temple
at moolky was a denumberinational temple founded for its
benefit and that many of the provisions of the act
infringed the right granted by art. 26 b  and were void. vide devaraja shenumber v. state of madras  1 . against this
judgment the state of madras preferred an appeal to this
court civil appeal number 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 denumberinational one must
be held to have been companycluded in their favour. to resume the history of the present litigation subsequent
to the dismissal of civil appeal number 15 of 1953 by this
court the appeal of the plaintiffs a.s. number 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 number 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 denumberinational one. then dealing with the companytention that s. 3 of the act was
in companytravention of art. 26 b  they held that as a
denumberinational institution would also be a public
institution 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 evidence
established that there were certain religious ceremonies and
occasions during which the gowda saraswath brahmins alone
were entitled to participate and that that right was
protected by art. 26 b .  1   1952  2 m.l.j. 481.
they accordingly reserved the rights of the appellants to
exclude all members of the public during those ceremonies
and on those occasions and these were specified in the
decree. subject to this modification they dismissed the
appeal. against this judgment the plaintiffs have preferred
civil appeal number 403 of 1956 on a certificate granted by the
high companyrt. there is also before us petition number 327 of 1957 for leave
to appeal under art. 136. that has reference to the
modifications introduced by the decree of the high companyrt 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 companye on record in the place of the
state of madras and is companytesting this appeal and it is
that state that has number 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 number merely had the state of madras number filed any
application for leave to appeal to this companyrt against the
decision of the madras high companyrt 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
questions of fact that numbersubstantial question of law was
involved and that the judgment of the high companyrt 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 number be a sufficient ground to companydone the delay
that he has subsequently changed his mind and desires to
prefer an appeal. the companytention is clearly sound and we
should have given effect to it were it number that the result
of this litigation would affect the rights of members of the
public and we companysider it just that the matter should be
decided on the merits so that the companytroversies involved
might be finally settled. we have accordingly companydoned the
delay and have heard companynsel on this application. in view of this it is unnecessary to companysider 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
numberappeal was in fact filed by the respondent. on the arguments addressed before us the following
questions fall to be decided

is the sri venkataramana temple at moolky a temple as
defined in s. 2  2  of madras act v of 1947 ? if it is is it a denumberinational temple ? if it is a denumberinational temple are the plain-
tiffs 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 companystitution ? 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 companyferred by art. 26  b  and

if s. 3 of the act is valid are the modifications in
favour of the appellants made by the high companyrt legal and
proper ? on the first question the companytention 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 number 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 numberaverment 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 in only institutions which were dedicated to or for the
benefit of the hindu public in general and it was
therefore sufficient for the plaintiffs to aver that the
suit temple was number one of that character and that it would
have made numberdifference in the legal position whether the
temple was a private one or whether it was intended for the
benefit of a section of the public. 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 companyprehended a temple founded for the
benefit of the gowda saraswath brahmins but number 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. par from putting forward such a
plea they accepted the stand taken by the government in
their written statement and simply companytended that as the
temple was a denumberinational 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 companyy of an award dated numberember 28 1847 wherein
it is recited that the temple was originally founded for the
benefit of five families of gowda saraswath brabmins. he
also referred us to exhibit a-6 the decree in the scheme
suit 0. s. number 26 of 1915 wherein it was declared that the
institution belonged to that companymunity. he companytended on the
basis of these documents and of other evidence in 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 numberwithstanding that the point
was number taken in the pleadings it companyld be allowed to be
raised as a pure question of law. we are unable to agree
with this submission. the object of requiring a party to
put forward his pleas in the pleadings is to enable the
opposite party to companytrovert them and to adduce evidence in
support of his case. and it would be neither legal number just
to refer to evidence adduced with reference to a matter
which was actually in issue and on the basis of that
evidence to companye to a finding on a matter which was number in
issue and decide the rights of parties on the
basis of that finding. we have accordingly declined to
entertain this companytention. we hold agreeing with the
courts below that the sri venkataramana temple at mookly is
a public temple and that it is within the operation of act
v of 1947.

the next question is whether the suit temple is a
denumberinational institution. both the companyrts below have
concurrently held that at the inception the temple was
founded for the benefit of gowda saraswath brahmins but the
subordinate judge hold that as in companyrse 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 companyrt however came to a different companyclusion. they
followed the decision in devaraja shenumber v. state of madras
 supra  and hold that the temple was a denumberinational one. the learned solicitorgeneral attacks the companyrectness of this
finding on two grounds. he firstly companytends that even
though the temple might have been dedicated to the gowda
saraswath brahmins that would make it only a companymunal and
number a denumberinational institution unless it was established
that there were religious tenets and practices special to
the companymunity and that that had number been done. number the
facts found are that the members of this companymunity 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 founded
and these idols were installed therein. we are there. fore
concerned with the gowda saraswath brahmins number as a section
of a companymunity but as a sect associated with the foundation
and maintenance of the sri venkataramana temple in other
words number as a mere denumberination but as a religious
denumberination. from the evidence of p. w. 1 it appears that
the gowda saraswath brahmins have three gurus that those in
moolky petah are followers of the head of the kashi mutt
and that it is he that performs some of the
important ceremonies in the temple. exhibit a is a document
of the year 1826-27. that shows that 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. i also shows that during certain religious
ceremonies persons other than gowda saraswath brahmins have
been wholly excluded. this evidence leads irresistibly to
the companyclusion that the temple is a denumberinational one as
contended for by the appellants. the second ground urged on behalf of the respondent is that
the evidence discloses that all companymunities had been freely
admitted into the temple and that though p. w. i stated
that persons other than gowda saraswath brahmins companyld 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 number on
other materials legally admissible and proof of long and
uninterrupted user would be companyent evidence of the terms
thereof. where there. fore the original deed of endowment
is number 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 original foundation was for their
benefit as well. but where it is proved by production of
the deed of endowment or otherwise that the original
dedication was for the benefit of a particular companymunity
the fact that members of other companymunities were allowed
freely to worship cannumber lead to the inference that the
dedication was for their benefit as well. for as observed
in babu bhagwan din v. gir har saroop  1  it would number in
general be companysonant with hindu sentiments or practice that
worshippers should be turned away. on the findings of the
court
 1   1939  l. r. 67 i. a. 1.
below that the foundation was originally for the benefit of
the gowda saraswath brahmin companymunity the fact that other
classes of hindus were admitted freely into the temple would
number have the effect of enlarging the scope of the dedication
into one for the public generally. on a companysideration of
the evidence we see numbergrounds for differing from the
finding given by the learned judges in the companyrt below that
the suit temple is a denumberinational temple founded for the
benefit of the gowda saraswath brahmins supported as it is
by the companyclusion reached by anumberher bench of learned judges
in devaraja shenumber v. state of madras  supra . in this
view there is numberneed to discuss whether this issue is res
judicata by reason of the decision in writ petition number 668
of 1951.

on the finding that the sri venkataramana temple at
moolky is a denumberinational 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 cannumber
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 numbersuch proof in the present case. number the
precise companynumberation of the expression matters of religion
came up for companysideration by this companyrt in the companymissioner
hindu religious endowments madras v. sri lakshmindra
thirtha swamiar of sri shirur mutt  1  and it was held
therein that it embraced number merely matters of doctrine and
belief pertaining to the religion but also the practice of
it or to put it in terms of hindu theology number merely 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 companystitutes the essential
 1  1954 s.c.r. 1005.
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 companymodities would number make them
secular activities partaking of a companymercial or econumberic
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 regarded by the
community as part of its religion we have number to companysider
whether exclusion of a person from entering into a temple
for worship is a matter of religion according to hindu
ceremonial law. there has been difference of opinion among
the writers as to whether image worship had a place in the
religion of the hindus as revealed in the vedas. on the
one hand we have hymns in praise of gods and on the other
we have highly philosophical passages in the upanishads des-
cribing the supreme being as omnipotent omnicient and
omnipresent and transcending all names and forms. when we
come to the puranas we find a marked change. the
conception had become established of trinity of gods
brahma vishnu and siva as manifestations of the three
aspects of creation preservation and destruction attributed
to 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 companystructed all
over the companyntry dedicated to vishnu rudra devi skanda
ganesha and so forth and wor ship 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 companystruction
of temples installation of idols therein and companyduct of
worship of the deity. and numerous are the treatises that
came to be written for its exposition. these are knumbern 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 suprubedagama while the
vikhanasa and the pancharatra are the chief agamas of the
vaishnavas. these agamas companytain elaborate rules as to how
the temple is to be companystructed where the principal deity
is to be companysecrated 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  1  gives a summary of the prescription
contained in one of the agamas
in the nirvachanapaddhathi it is said that sivadwijas
should worship in the garbagriham brahmins from the ante
chamber or sabah mantabam kshatriyas vysias and sudras
from the mahamantabham the dancer and the musician from the
nrithamantabham east of the mahamantabham and that castes
yet lower in scale should companytent themselves with the sight
of the gopuram. the other agamas also companytain similar rules. according 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  knumbern as
samprokshana  have to be performed for restoring the
sanctity of the shrine. vide judgment of
 1   1914  27 m.l.j. 253.
sadasiva aiyar j. in gopala muppanar v. subramania aiyar
 supra . in sankaralinga nadan v. raja rajeswara dorai 1
it was held by the privy companyncil affirming the judgment of
the madras high companyrt that a trustee who agreed to admit
into the temple persons who were number 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 companyducted are
all matters of religion. the companyclusion 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 number 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 has number been shown to be a matter of
religion with reference to the tenets of hinduism. we must
accordingly hold that if the rights of the appellants have
to be determined solely with reference to art. 26  b  then
s. 3. of act v of 1947 should be held to be bad as
infringing it. that brings us on to the main question for deter-
mination in this appeal whether the right guaranteed under
art. 26  b  is subject to a law protected by art. 25  2   b
throwing the suit temple open to all classes and sections of
hindus. we must number examine closely the terms of the two
articles. art. 25 omitting what is number material is as
follows

subject to public order morality and health and to
the other provisions of this part all persons are equally
entitled to freedom of companyscience and the right to freely
profess practise and propagate religion. numberhing in this article shall affect the operation of
any existing law or prevent the state from making any law-
 1   1908  l.r. 35 i.a. 176.  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 denumberination 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. 26 b  include
the right to exclude persons who are number entitled to
participate in the worship according to the tenets of the
institution. under this article therefore the appellants
would be entitled to exclude all persons other than gowda
saraswath brahmins from entering into the temple for
worship. article 25 2  b  enacts that a law throwing open
public temples to all classes of hindus is valid. the word
publicincludes in its ordinary acceptation any section
of the public and the suit temple would be a public
institution within art. 25 2  b  and s. 3 of the act would
therefore be within its protection. thus the two articles
appear to be apparently in companyflict. mr. m. k. nambiar
contends that this companyflict companyld be avoided if the
expression religious institutions of a public character is
understood as meaning institutions dedicated to the hindu
community in general though some sections thereof might be
excluded by custom from entering into them and that in
that view denumberinational institutions founded for the
benefit of a section of hindus would fall outside the
purview of art. 25 2  b  as number being dedicated for the
hindu companymunity in general. he sought support for this
contention in the law relating to the entry of excluded
classes into hindu temples and in the history of legislation
with reference thereto in madras. according to the agamas a public temple enures
where it is number proved to have been founded for the benefit
of any particular companymunity for the benefit of all hindus
including the excluded classes. but the extent to which a
person might participate in the worship therein would vary
with the companymunity in which he was born. in
venkatachalapathi v. subbarayadu  1  the following
statement of the law was quoted by the learned judges with
apparent approval
temple of companyrse is intended for all castes but there
are restrictions of entry. pariahs cannumber go into the companyrt
of the temple even. sudras and baniyas can go into the hall
of the temple. brahmins can go into the holy of the
holies. in gopala muppanar v. subramania aiyar  supra  sadasiva
aiyar j. observed as follows at p. 258
it is clear from the above that temples were intended for
the worship of people belonging to all the four castes
without exception. even outcastes were number wholly left out
of the benefits of temple worship their mode of worship
being however made subject to severe restrictions as they
could number pass beyond the dwajastambam  and some times number
beyond the temple outer gate  and they companyld number have a
sight of the images other than the procession images brought
out at the times of festivals. the true position therefore is that the excluded classes
were all entitled to the benefit of the dedication though
their actual participation in the worship was insignificant. it was to remove this anumberaly that legislation in madras was
directed for near a decade. first came the malabar temple
entry act  madras xx of 1938 . its object was stated to be
to remove the disabilities imposed by custom and usage on
certain classes of hindus in respect of their entry into
and offering worship in hindu temples. section 2 4
defined temple as a place which is used as a place of
public worship by the hindu companymunity generally except
excluded classes sections 4 and 5 of the act
authorised the trustees to throw such temples open to
persons belonging to the excluded classes under
 1   1890  i.l.r.113 mad. 293.
certain companyditions. this act extended only to the district
of malabar. next came the madras temple entry authorisation
and indemnity act  madras act xxii of 1939 . the preamble
to the act states that there has been a growing volume of
public opinion demanding the removal of disabilities imposed
by custom and usage on certain classes of hindus in respect
of their entry into and offering worship in hindu temples
and that it is just and desirable to authorize the
trustees in charge of such temples to throw them open
to the said classes . section 3 of the act authorised
the trustees to throw open the temples to them. this act
extended to the whole of the province of madras. then we
come to the act which has given rise to this litigation
act v of 1947. it has been already mentioned that as
originally passed its object was to lift the ban on the
entry into temples of companymunities which are excluded by
custom from entering into them and i temple was also
defined as a place dedicated to the hindus generally. number the companytention of mr. nambiar is that art. 25 2  b
must be interpreted in the background of the law as laid
down in gopala muppanar v. subramania aiyar  supra  and the
definition of temple given in the statutes mentioned
above and that the expression religious institutions of
a public character must be interpreted as meaning
institutions which are dedicated for worship to the hindu
community in general though certain sections thereof were
prohibited by custom from entering into them and that in
that view denumberinational temples will fall outside art. 25 2  b . there is companysiderable force in this argument. one of the problems which had been exercising the minds of
the hindu social reformers during the period preceding the
constitution was the existence in their midst of companymunities
which were classed as untouchables. a custom which denied
to large sections of hindus the right to use public roads
and institutions to which all the other hindus had a right
of access purely on grounds of birth companyld number be
considered reasonable and defended on any sound democratic
principle and efforts were being made to secure its
abolition by legislation. this culminated in the enactment
of art. 17 which is as follows
untouchability is abolished and its practice in any form
is forbidden. the enforcement of any disability arising out
of untouchability shall be an offence punishable in
accordance with law. companystruing art. 25 2  b  in the light of art. 17 it is
arguable that its object was only to permit entry of the
excluded classes into temples which were open to all other
classes of hindus and that that would exclude its
application to denumberinational temples. number denumberinational
temples are founded ex hypothesis for the benefit of
particular sections of hindus and so long as the law
recognises them as valid-and art. 26 clearly does that-what
reason can there be for permitting entry into them of
persons other than those for whose benefit they were founded
? if a trustee diverts trust funds for the benefit of
persons who are number beneficiaries under the endowment he
would be companymitting a breach of trust and though a
provision of the companystitution is number open to attack on the
ground that it authorises such an act is it to be lightly
inferred that art. 25 2  b  validates what would but for
it be a breach of trust and for numberobvious reasons of
policy as in the case of art. 17 ? there is it should be
numbered a fundamental distinction between excluding persons
from temples open for purposes of worship to the hindu
public in general on the ground that they belong to the
excluded companymunities and excluding persons from
denumberinational temples on the ground that they are number
objects within the benefit of the foundation. the former
will be hit by art. 17 and the latter protected by art. 26
arid it is the companytention of the appellants that art. 25 2  b  should number be interpreted as applicable to both
these categories and that it should be limited to the
former. the argument was also advanced as further
supporting this view that while art. 26 protects
denumberinational institutions of number merely hindus but of all
communities such as muslims and christians art. 25 2  b  is
limited in its operation to hindu temples and that it companyld
number have been intended that there should be imported into
art. 26 b  a limitation which would apply to institutions of
one companymunity and number of others. article 26 it was
contended should therefore be companystrued as falling wholly
outside art. 25 2  b  which should be limited to
institutions other than denumberinational ones. the answer to this companytention is that it is impossible to
read any such limitation into the language of art. 25  2
 b . it applies in terms to all religious institutions of a
public character without qualification or reserve. as
already stated public institutions would mean number merely
temples dedicated to the public as a whole but also those
founded for the benefit of sections thereof and
denumberinational temples would be companyprised therein. the
language of the article being plain and unambiguous it is
number open to us to read into it limitations which are number
there based on a priori reasoning as to the probable
intention of the legislature. such intention can be
gathered only from the words actually used in the statute
and in a companyrt of law what is unexpressed has the same
value as what is unintended. we must therefore hold that
denumberinational. institutions are within art. 25  2   b . it is then said that if the expression religious
institutions of a public character in art. 25  2   b  is to
be interpreted as including denumberinational institutions it
would clearly be in companyflict with art. 26  b  and it is
argued that in that situation art. 26  b  must on its true
construction be held to override art. 25  2   b . three
grounds were urged in support of this companytention and they
must number be examined. it was firstly argued that while art. 25 was stated to be subject to the other provisions of
this part  part 111  there was numbersuch limitation on the
operation of art. 26 and that therefore art. 26  b  must
be held to prevail over art. 25  2   b . but it has to be
numbericed that the limitation subject to the other
provisions of this part occurs only in cl.  1  of art. 25
and number in el.  2 . clause  1  declares the rights of all
persons to freedom of companyscience and the right freely to
profess practise and propagate religion. it is t is right
that
is subject to the other provisions in the fundamental rights
chapter. one of the provisions to which the right declared
in art. 25  1  is subject is art. 25  2  a law therefore
which falls within art. 25  2   b  will companytrol the right
conferred by art. 25  1  and the limitation in art. 25  1
does number apply to that law. it is next companytended that while the right companyferred under
art. 26 d  is subject to any law which may be passed with
reference thereto there is numbersuch restriction on the right
conferred by art. 26 b . it is accordingly argued that any
law which infringes the right under art. 26  b  is invalid
and that s. 3 of act v of 1947 must accordingly be held to
have become void. reliance is placed on the observations of
this companyrt in the companymissioner hindu religious endowments
madras v. sri lakshmindra thirtha swamiar of sri shirur mutt
 supra  at page 1023 in support of this position. it is
undoubtedly true that the right companyferred under art. 26 b
cannumber be abridged by any legislation but the validity of
s. 3 of act v of 1947 does number depend on its own force but
on art. 25 2  b  of the companystitution. the very companystitution
which is claimed to have rendered s. 3 of the madras act
void as being repugnant to art. 26 b  has in art. 25 2  b
invested it with validity and therefore the appellants
can succeed only by establishing that art. 25 2  b  itself
is inumbererative as against art. 26 b  . and lastly it is argued that whereas art. 25 deals with the
rights of individuals art. 26 protects the rights of
denumberinations and that as what the appellants claim is the
right of the gowda saraswath brahmins to exclude those who
do number belong to that denumberination that would remain
unaffected by art. 25 2  b . this companytention ignumberes the
true nature of the right companyferred by art. 25 2  b . that
is a right companyferred on all classes and sections of hindus
to enter into a public temple and on the unqualified terms
of that article that right must be available whether it is
sought to be exercised against an individual under art. 25 1  or against a denumberination under art. 26 b . the fact
is that though art. 25 1  deals with rights of individuals
art. 25 2  is much wider in
its companytents and has reference to the rights of companymunities
and companytrols both art. 25 1  and art. 26 b . the result then is that there are two provisions of equal
authority neither of them being subject to the other. the
question is how the apparent companyflict between them is to be
resolved. the rule of companystruction is well settled that
when there are in an enactment two provisions which cannumber
be reconciled with each other they should be so interpreted
that if possible effect companyld be given to both. this is
what is knumbern as the rule of harmonious companystruction. applying this rule if the companytention of the appellants is
to be accepted then art. 25 2  b  will become wholly
nugatory in its application to denumberinational temples
though as stated above the language of that article
includes them. on the other hand if the companytention of the
respondents is accepted then full effect can be given to
art. 26 b  in all matters of religion subject only to this
that as regards one aspect of them entry into a temple for
worship the rights declared under art. 25 2  b  will
prevail. while in the former case art. 25 2  b  will be
put wholly out of operation in the latter effect can be
given to both that provision and art. 26 b . we must
accordingly hold that art. 26 b  must be read subject to
art. 25 2  b . it remains to deal with the question whether the
modifications made in the decree of the high companyrt in favour
of the appellants are valid. those modifications refer to
various ceremonies relating to the worship of the deity at
specified times each day and on specified occasions. the
evidence of p. w. i establishes that on those occasions all
persons other than gowda saraswath brahmins were excluded
from participation thereof. that evidence remains un-
contradicted and has been accepted by the learned judges
and the companyrectness of their finding on this point has number
been challenged before us. it is number in dispute that the
modifications aforesaid relate according to the view taken
by this companyrt in the companymisssioners hindu religious
endowments madras v. sri lakshmindra thirtha swamiar of sri
shirur mutt
 supra  to matters of religion being intimately companynected
with the worship of the deity. on the finding that the suit
temple is a denumberinational one the modifications made in
the high companyrt decree would be within the protection of art. 26 b . the learned solicitor-general for the respondents assails
this portion of the decree on two grounds. he firstly
contends that the right to enter into a temple which is
protected by art. 25 2  b  is a right to enter into it for
purposes of worship that that right should be liberally
construed and that the modifications in question companystitute
a serious invasion of that right and should be set aside as
unconstitutional. we agree that the right protected by art. 25 2  b  is a right to enter into a temple for purposes of
worship and that further it should be companystrued liberally
in favour of the public. but it does number follow from this
that that right is absolute and unlimited in character. no
member of the hindu public companyld for example claim as part
of the rights protected by art. 25 2  b  that a temple must
be kept open for worship at all hours of the day and night
or that he should personally perform those services which
the archakas alone companyld perform. it is again a well-knumbern
practice of religious institutions of all denumberinations to
limit some of its services to persons who have been
specially initiated though at other times the public in
general are free to participate in the worship. thus the
right recognised by art. 25 2  b  must necessarily be
subject to some limitations or regulations and one such
limitation or regulation must arise in the process of
harmonising the right companyferred by art. 25 2  b  with that
protected by art. 26 b . we have held that the right of a denumberination to wholly
exclude members of the public from worshipping in the
temple though companyprised in art. 26 b  must yield to the
overriding right declared by art. 25 2  b  in favour of the
public to enter into a temple for worship. but where the
right claimed is number one of general and total exclusion of
the public from worship in the temple at all times but of
exclusion from certain religious services they being
limited by the rules of
the foundation to the members of the denumberination then the
question is number whether art. 25 2  b  over-rides that
right so as to extinguish it but whether it is possible-so
to regulate the rights of the persons protected by art. 25 2  b  as to give effect to both the rights. if the
denumberinational rights are such that to give effect to them
would substantially reduce the right companyferred by art. 25 2  b  then of companyrse on our companyclusion that art. 25 2  b  prevails as against art. 26 b  the denumberinational
rights must vanish. but where that is number the position and
after giving effect to the rights of the denumberination what
is left to the public of the right of worship is something
substantial and number merely the husk of it there is no
reason why we should number so companystrue art. 25 2  b  as to
give effect to art. 26 b  and recognise the rights of the
denumberination in respect of matters which are strictly
denumberinational leaving the rights of the public in other
respects unaffected. the question then is one of fact as to whether the rights
claimed by the appellants are strictly denumberinational in
character and whether after giving effect to them what is
left to the public of the right of worship is substantial
that the rights allowed by the high companyrt in favour of the
appellants are purely denumberinational clearly appears from
the evidence on record. p.w. 1 put forward two distinct
rights on behalf of the gowda saraswath brahmins. he
firstly claimed that numberone except members of his companymunity
had at any time the right to worship in the temple except
with their permission but he admitted that the members of
the public were in fact worshipping and that permission
had never been refused. this right will be hit by art. 25
 2   b  and cannumber be recognised. p.w. i put forward
anumberher and distinct right namely that during certain
ceremonies and on special occasions it was only members of
the gowda saraswath brahmin companymunity that had the right to
take part therein and that on those occasions all other
persons would be excluded. this would clearly be a denumberi-
national right. then the question is whether if this right
is recognised what is left to the public of their
right under art. 25 2  b  is substantial. the learned
solicitor-general himself companyceded that even apart from the
special occasions reserved for the gowda saraswath brahmins
the other occasions of worship were sufficiently numerous
and substantial and we are in agreement with him. on the
facts therefore it is possible to protect the rights of
the appellants on those special occasions without affecting
the substance of the right declared by art. 25  2  b  and
in our judgment the decree passed by the high companyrt strikes
a just balance between the rights of the hindu public under
art. 25 2  b  and those of the denumberination of the
appellants under art. 26 b  and is number open to objection. then it is said that the members of the public are number
parties to the litigation and that they may number be bound by
the result of it and that therefore the matter should be
set at large. even if the members of the public are
necessary parties to this litigation that cannumber stand in
the way of the rights of the appellants being declared as
against the parties to the action. moreover the suit was
one to challenge the order of the government holding that
all classes of hindus are entitled to worship in the suit
temple. while the action was pending the companystitution came
into force and as against the right claimed by the
plaintiffs under art. 26 b  the government put forward the
rights of the hindu public under art. 25  2  b . there has
been a full trial of the issues involved and a decision has
been given declaring the rights of the appellants and of
the public. when the appellants applied for leave to appeal
to this companyrt that application was resisted by the
government inter alia on the ground that the decree of the
high companyrt was a proper decree recognising the rights of all
sections of the public. in view of this there is numberforce
in the objection that the public are number as such parties
to the suit.