IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.01.2008 CORAM : THE HON’BLE MR. JUSTICE S.TAMILVANAN A.S.No.4 of 1997 P.K.Duraisami .... Appellant (Plaintiff) vs. 1. Commissioner H.R. & C.E., Admn., Department, Nungambakkam High Road, Madras – 34. 2. Deputy Commissioner H.R. & C.E., Admn., Department, Coimbatore. ....Respondents (Defendants) Appeal filed against the Judgment and Decree, dated 13.11.1996 made in O.S.No.998 of 1988 on the file of the First Additional Subordinate Judge, Coimbatore. For Appellant : Mr.W.C.Thiruvengadam For Respondents: Mr.T.Chandrasekaran Spl.G.P. (H.R. & C.E) JUDGMENT This appeal is directed against the Judgment and Decree, dated 13.11.1996 made in O.S.No.998 of 1988 on the file of the First Additional Subordinate Judge, Coimbatore. 2. The appellant herein was the plaintiff in the suit before the trial court. Aggrieved by the order of the first respondent, Commissioner, H.R. & C.E. (Admn) Department, the statutory suit under Section 70 (1) of H.R. & C.E. Act, XXII of 1959 was filed by the appellant herein. https://hcservices.ecourts.gov.in/hcservices/ 3. According to the appellant / plaintiff, he is holding office as Hereditary Trustee in Sri Vinayagar Temple, situated at Eachanari Village, Coimbatore, within the meaning of Section 6 (11) and 63(b) of H.R. & C.E. Act. It is not in dispute that the temple is located in S.No.636/2 and 633 of Kurichi village with an extent of 1-18 acres on the western side of Coimbatore – Pollachi Main Road. According to the appellant / plaintiff, the vinayagar idol in question had been brought from Madurai to Perur for installation, nearly 150 years ago and while transporting the idol in a hand cart, the cart was broken down and the Vinayagar idol was fallen in the sitting posture. Though the villagers made attempt to lift the idol, they could not do so. In the result, the idol was temporarily installed and worshipped there itself. According to the appellant, his grand father Kupanda Gounder had taken interest in the installation of the idol by erecting a thatched shed and made it for worship and was looking after the day-to-day affairs of the temple, as Founder-cum-Hereditary Trustee. After the death of Kupanda Gounder, his son, father of the appellant Krishnaswamy Gounder succeeded the office of the Hereditary Trusteeship in the temple and continued to hold office. After the death of the said Krishnasamy Gounder, appellant, being his son succeeded the office as Hereditary trustee in the temple. However, the plaintiff was recognised as Vice President and Treasurer in the year 1967 in the Tiruppani Committee, which was formed with the approval of the H.R. & C.E., Department and the appellant took personal interest and completed the renovation work in the year 1977. He was also responsible for performing Kumbabishekam of the Temple. Though, he was holding the post as Hereditary Trustee, Commissioner, H.R. & C.E., also appointed him as trustee of the Temple. The H.R. & C.E., Department has also appointed an Executive Officer to the temple, under Section 45 (1) of the Act. 4. In order to obtain a statutory declaration under Section 63(b) of the Act, the appellant had filed an application in O.A.No.1 of 81, on the file of the Deputy Commissioner, H.R. & C.E., Department, Coimbatore, claiming the office of Trusteeship as Hereditary, within the meaning of Sections 6 (11) and 63 (b) of the Act. However, the same was dismissed on 30.04.1985. Aggrieved by which, the appellant preferred an appeal under Section 69(1) of the Act, the same was also dismissed on 11.07.1988. Aggrieved, by which, the statutory suit was filed. 5. In the written statement, the respondents herein have denied the claim of the appellant, stating that he had never been Hereditary Trustee of the Temple. According to the respondents, the appellant was appointed as Hereditary Trustee only in the year 1972 and subsequently, reappointed in the year 1975 and in the year 1979. 6. Mr.W.C.Thiruvengadam, learned counsel appearing for the appellant contended that though he was appointed as trustee by the respondents herein, he is entitled to seek a declaration that he is a hereditary trustee of the suit temple, by way of substantiating evidence. According https://hcservices.ecourts.gov.in/hcservices/ to the learned counsel, there is no statutory bar in claiming hereditary trusteeship, merely on the ground that he was appointed as trustee by the respondents. The learned counsel further contended that originally Kupanda Gounder, was performing pooja for the vinayagar idol, by putting a hut, subsequently, after his demise, Krishnaswamy Gounder was performing pooja till he died in the year 1946. After the death of Krishnasamy Gounder, his son, the appellant herein is continuously doing poojas, as trustee and as such continuously being hereditary trustee for about three generations, and performing service, as his family deity. Admittedly, there was no dedication of any property to Eachanari Vinayagar Temple and it was worshipped only in the poromboke land, where it was originally placed for the worship. 7. The appellant has produced supporting documents, Exs.A.1 to A.45, apart from examining himself and P.W.2 as witnesses. Exs.A.1 to A.5 are the receipts for the electric consumption for the service connection at Eachanari Vinayagar Temple, out of which, Exs.A.2 and A.3 relates to 24.05.1951, subsequently, according to the learned counsel for the appellant, the appellant got telephone connection at the temple premises and personally paid the telephone bills. Exs.A.13 shows that he was appointed as a Vice President of Tiruppani Committee in the year 1978. It is not in dispute that the appellant had spent huge amount towards improvement of the temple, as a devotee and worshipper of the deity. 8. Learned counsel for the appellant would contend that the appellant, being an industrialist is earning huge income and as such there is no necessity for him to get any monetary benefit from the income of the temple, but, only spending his money for the Temple, however, it being his family deity for about three generations, he filed the statutory suit for declaration, after approaching the respondents. 9. On the side of the respondents, one Venugopal was examined as D.W.1 and Exs.B.1 to B.4 were also marked. Ex.B.3 is a book published on 03.06.1977 by the authority of Eachanari Vinayagar Temple, wherein it has been stated that the Vinayagar Idol was installed long back, as had got down from the cart, while it was taken from Madurai to Perur at Eachanari Village. It is seen that both the appellant as well as the respondents have not produced any documentary evidence to show that who actually installed the deity at Eachanari Village. 10. As contended by the learned counsel for the appellant, since it was a poromboke land, where the idol was installed long back and on account of inadequate awareness, proper documents were not maintained by the ancestors of the appellant, however, the claim of the appellant would be established by way of oral evidence, accordingly, he examined P.W.2. The further contention of the learned counsel for the appellant is that though the case is pending for a long time, there is no objection from the villagers and there is no rival claimants. In support of his contention, he cited the Division Bench decision of the Hon'ble Apex Court, Madana https://hcservices.ecourts.gov.in/hcservices/ Palo vs. H.R. E. Board, Madras, reported in 1946 LW 787, wherein it has been held as follows : " Where the management of a temple has been exclusively in the hands of a family for four successive generations, the office of the trustee being held by the head of the family for the time being, the only conclusion possible is that that family possesses the hereditary right of appointing the trustee of the temple, which means that the temple is an excepted temple within the meaning of S.9 (5) of the Madras Hindu Religious Endowments Act." 11. This Court in the decision, Babu Gurukkal vs. Commr. for H.R. & C.E. Board, reported in 1964 MLJ, 385, has held as follows : "This is a case of two small temple of which Chelliamman Temple has no endowments whatever. Tirumudi Vinayagar has been endowed with an extent of 1 acre 31 cents of wet land. Except for this, the Vinayagar Temple appears to own no other property. Even in respect of the land endowed for the support of the Vinayagar Temple, the question whether it is a service inam may arise, but it does not fall to be decided in this appeal. Often in this part of the country, small temples like these have only poojaris who, by long custom or usage, look after the affairs of the temples, where they serve as gurukkals. They thus function in a dual capacity, namely, poojari cum trustee." 12. The Full Bench of the Hon'ble Apex Court in the decision, Sambudamurthi Mudaliar vs. State of Madras, reported in 1970 II MLJ (SC) 58, has held as follows : 'hereditary trustee' means the trustee of a religious institution succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by the founder, so long as such scheme of succession is in force." 13. A Division Bench of this Court in the decision, Asst. Commissioner, H.R. & C.E., vs. Rajagopala Ponnapoondar, reported in 1984 LW, 764, has held as follows : "The devolution of the office of trusteeship for generations from son to grandson is no doubt prima facie evidence that the office devolves by succession according to laws of inheritance. So also the fact that members of a particular family held the office Dharmakartha continuously for more than a century and there was assertion by them that it was hereditary https://hcservices.ecourts.gov.in/hcservices/ would be good evidence that the office is hereditary. But, any such prima facie inference would be negatived by evidence to the contrary. " 14. From the decisions of the Hon'ble Apex Court and this Court referred to by the learned counsel for the appellant, it is clear that even after the appointment of trustee by the respondents, he can claim hereditary trusteeship, if he is entitled to claim such right, based on the evidence. In the instant case, it is clear that the appellant is continuously performing his services to the Temple, since 1951, as per the evidence available on record. However, this Court is of the view that there is insufficient evidence from both sides to decide the issues involved in this appeal. 15. In such circumstances, to meet the ends of justice, I am of the view that it would be proper to remit back the matter to the trial court for fresh disposal, according to law. 16. In the result, the appeal is allowed and the impugned Judgment and Decree, passed by the trial court are set aside and the matter is remitted back to the trial court for fresh disposal. The trial court is directed to provide reasonable opportunity to both sides to adduce further evidence, both oral and documentary and dispose the same, according to law, independently, based on the evidence, within three months from the date of receipt of the copy of this order. With regard to the administration of the temple, the status quo shall be maintained till then. No costs. tsvn Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The First Additional Subordinate Judge, Coimbatore. 2. The Section Officer, V.R.Section, High Court, Madras. +1 cc to Mr.W.C.Thiruvengadam, Advocate Sr.No.3198. +1 cc to The Government Pleader Sr.No.3202. dcp/29.1 A.S.No.4 of 1997 25.01.2008 https://hcservices.ecourts.gov.in/hcservices/