IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.02.2008 CORAM : THE HON’BLE MR. JUSTICE S.TAMILVANAN A.S.No.285 of 1997 The Commissioner H.R.& C.E., Admn., Department, Nungambakkam High Road, Chennai – 34. ... Appellant/Defendant vs. N.Krishnamoorthy ... Respondent/Plaintiff Appeal filed against the Judgment and Decree, dated 30.06.1994 made in O.S.No.101 of 1987 on the file of the Subordinate Judge, Nagapattinam. For Appellant : Mr.R.Murugesan, Spl.G.P. H.R. & C.E., For Respondents: Mr.V.K.Vijayaraghavan JUDGMENT This appeal is directed against the Judgment and Decree, dated 30.06.1994 made in O.S.No.101 of 1987 on the file of the Subordinate Judge, Nagapattinam. 2. The appellant herein was the defendant in the suit before the trial court. The respondent filed the suit stating that his grand father one Thiyagarajan @ Narayanan had two sons, namely, T.Nagarajan, father of the plaintiff and one late Dakshinamoorthy, who had premature death, due to small pox. According to the respondent / plaintiff, the dead body of late Dakshinamoorthy was buried under a 'Samadhi' erected in R.S.No.118/8 in Koravapulam village, Tiruturaipundy Taluk,where he was entombed. 3. According to the respondent / plaintiff, originally the Samadhi was housed in a thatched shed and later pucca masonry structures were built up, neither the public in general nor the villagers in particular are being allowed to worship the Samadhi https://hcservices.ecourts.gov.in/hcservices/ and as such, the same had never been thrown open to the public. There was no 'Pragaaram', 'Dwajasthambam', 'Kodi-maram', 'hundial' or even any 'Vigraham' (idol) embedded or otherwise capable of being taken in possession and there is no contribution or collection of funds of any kind for sustenance and maintenance of the Institution. According to him, his grand father late Thiyagarajan had set apart 6 acres 38 cents of land in the village of Koruvapulam by a settlement deed, dated 30.11.1960 for the maintenance of the Samadhi. 4. It is not in dispute that as per the settlement deed, the testator had made restrictions on his son Nagarajan and others claiming right only to perform the service of feeding the poor during the month of karthigai and to do other charities from and out of the the income of the property. In fact, they can perform the charity, without any power of alienation or creating charges over the property dedicated for the aforesaid object. 5. According to the respondent herein, the endowment was created only to perform poojas in the Samadhi of Dakshinamoorthy, the younger son of the testator and accordingly the institution is neither a Madam, nor a Temple as defined in the Tamil Nadu H.R & C.E., Act 22 of 1959. According to the plaintiff, the buildings for the institution were constructed in the patta land in S.No.118/8 and the lands stand registered in the name of "Dakshinamoorthy Madam". 6. According to the respondent / plaintiff, though a petition under Section 63(a) of the H.R. & C.E. Act (herein after referred to as the Act) before the Deputy Commissioner, H.R. & C.E. Department, Thanjavur in O.A.No.5/82 was filed by the respondent, seeking to declare that the institution is not a religious institution, as defined under Section 6 (18) of the Act, the same was dismissed, declaring that the institution is a temple of Lord Sri Dakshinamoorthy, as per Section 6(2) of the Act. According to the respondent, there is no predhishtai (installation) of any Vigraham (Idol) of Lord Dakshinamoorthy in the institution. Subsequent to the aforesaid order, appeal was preferred under Section 69(2) of the Act in C.No.119362/86 to set aside the order of the Deputy Commissioner, H.R. & C.E., Department, Thanjavur, dated 19.03.1983 in O.S.No.5/82. The appeal was also dismissed by the Commissioner, H.R. & C.E., Department, Chennai, the respondent herein. Aggrieved by which, the respondent / plaintiff filed a statutory suit under Section 70 of the H.R. & C.E., Act (22 of 1959). 7. Per contra, the appellant, as defendant has stated that the institution is known as Dakshinamoorthy Madam (Math), Kuruvapulam in R.S.No.111/8 in an extent of 0.07 cents, which https://hcservices.ecourts.gov.in/hcservices/ belongs to the math and the father of the plaintiff Nagarajan was in management of the institution. According to the appellant, it is a math as defined under Section 6 (13) of the Act and Dakshinamoorthy Madam, Kuruvapulam village is a religious institution, as defined under Section 6 (18) of the Act and that the application made by the father of the plaintiff under Section 63(a) of the Act before the Deputy Commissioner, H.R. & C.E., (Admn) Department, Thanjavur in O.A.No.5/82 was dismissed on 19.03.1983. However, appeal remedy was not available under Section 69(1) of the Act. 8. According to the appellant, the order passed by the Deputy Commissioner in O.A.No.5/82 holding that the institution in question is a temple, as defined under Section 6(20) of the Act has became final. As per the terms of the settlement, dated 30.11.1960 executed by the original founder of the institution, late Thiyagarajan, the land , an extent of 6.38 acres worth about Rs.6,000/- in 1960 was dedicated in favour of the institution without any reservation. The appellant has denied the contention of the respondent that it was a Samadhi of Dakshinamoorthy, the alleged second son of the testator and contended that the founder late Thiyagarajan was a devotee of Lord Shiva and his incarnation of Lord Sri Dakshinamoorthy swamy, faces south in all Shiva temples. In the settlement deed, his ardent faith of Dakshinamoorthy has been indicated and he also wanted to perform Kumbabishekam, which is not performed in any Samadhi, other than a public religious institution and therefore, according to the appellant, the institution has to be held as a public temple, as per Section 6 (20) of the Act. 9. The point for determination in this appeal is : 1) Whether the decision of the Court below in deciding the suit institution not religious temple, as defined under Section 6(18) of the Act is legally sustainable ? 2) Whether the appeal has to be allowed ? 10. The contention of the respondent herein is that the testator had two sons, Dakshinamoorthy, younger son of the testator had a premature death, due to small pox and a Samadhi was constructed at the place where the body of said Dakshinamoorthy was buried and for getting spiritual salvation for the family, the said Samadhi was originally housed in a thatched shed and later on in a pucca masionary structure, as per the settlement deed, dated 30.11.1960, executed by the said testator. 11. Mr.R.Murugesan, learned Special Government Pleader appearing for the appellant, contended that there is no evidence on the side of the respondent / plaintiff to show that there was https://hcservices.ecourts.gov.in/hcservices/ a son by name Dakshinamoorthy to the testator Thiyagarajan and he died due to small pox. 12. As contended by the learned counsel for the appellant, had the settlement been executed in order to perform thithi and other rituals at the alleged Samadhi, at least in Ex.A.1, settlement deed, the settlor could have stated the name of his deceased son Dakshinamoorthy and the details about the performance of thithi to his demised son. But admittedly, no such recital is available in the settlement deed. 13. Learned Special Government Pleader, H.R. & C.E., drew the attention of this Court further to page number 2 of Ex.A.1, settlement deed, wherein it has been clearly stated that the property of 6 acres and 38 cents in R.S.No.118/8 was dedicated for the purpose of constructing a pucca building for the installation of Dakshinamoorthy deity and to perform abishekam and daily pooja, rituals and deeparathana to the deity. 14. As per this settlement, the settlor has clearly stated that he has dedicated the property for Dakshinamoorthy Madam (Math) to perform the charity. In the settlement deed, he has further stated that while he was executing the settlement deed, the Madam was functioning in a thatched shed and it has to be converted into a brick construction and for every year during the month of karthigai, poor feeding shall be performed from the income of the property. He had been doing the charity during his life time and after his demise, his son Nagarajan and after him, his eldest male descendant should perform the charities, without any right of alienation, mortgage or other encumbrance on the property dedicated for the Madam. 15. As per Ex.A.2, certified copy of the order passed in O.A.No.5/82 by the Deputy Commissioner, H.R. & C.E. (Admn.) Department, Thanjavur, dated 19.03.1983, it is seen that a petition had been filed by T.Nagarajan, father of the respondent, under Section 63(a) of the Act, seeking for a declaration that the suit institution was not a religious institution, as defined under Section 6(18) of the Act. The said petition was dismissed and as per the order, the Deputy Commissioner, H.R. & C.E., has declared that the suit institution, Sri Dakshinamoorthy Temple, a public temple, as defined under Section 6(20) of the Act. It is seen from the order that only after a detailed enquiry, after providing reasonable opportunity, the said order has been passed. 16. On the side of the respondent / plaintiff, P.Ws.1 and 2 were examined, Ex.A.1, settlement deed and also Ex.A.2, kist receipt were marked, wherein the Deputy Commissioner has found that there was no recital in the settlement deed with reference https://hcservices.ecourts.gov.in/hcservices/ to any Samadhi of Dakshinamoorthy, as alleged by the respondent herein. Had the settlement deed been executed to perform annual thithi to the alleged deceased Dakshinamoorthy, atleast in the settlement deed, there could be some reference with regard to Gurupooja or thithi to be performed for the deceased. It is seen that nowhere in the document, the settlor has stated anything about his alleged son Dakshinamoorthy, as stated by the respondent / plaintiff. The word Samadhi is also not available in Ex.A.1, settlement deed. The oral evidence adduced by P.Ws.1 to 3 saying that the suit property, a Samadhi seems to be an imaginary story without any acceptable evidence, which is totally contrary to the averments of Ex.A.1. 17. In the settlement deed, Ex.A.1, the settlor has clearly stated that at the time of executing the settlement, Dakshinamoorthy Madam was functioning in a thatched shed and it should to be converted into a pucca building from and out of the income of the property 6.38 acres of land dedicated by him for the Madam. He has also stated that the deity (idol) of Dakshinamoorthy should be installed in the building and Kumbabishekam and other daily poojas and evening deeparathana should be performed. The averments in the settlement deed would clearly establish that the word Dakshinamoorthy denotes only Lord Sri Dakshinamoorthy deity, an incarnation of Lord Shiva, available in all the shiva temples facing south, as submitted by the learned counsel for the appellant. 18. As contended by the learned counsel for the appellant, practice of Kumbabishekam for any Samadhi is unheard of, since the dedicated property is a huge extend land of 6.38 acres of land, due to appreciation of its value, totally unacceptable and unreasonable stand has been taken by the respondent. The document Ex.A.1 clearly shows that Late Thiyagarajan, the settlor has dedicated the property only for Dakshinamoorthy Madam (Mutt) and as per the settlement deed, it is clear that he had intention to convert the thatched shed into a pucca building and he wanted to instal the idol of Lord Dakshinamoorthy and to perform abishekam and daily poojas with evening deeparathana. 19. In such circumstances, the respondent has stated an unacceptable story, totally contrary to the averments of Ex.A.1, which cannot be accepted. As per Section 6(18) of H.R. & C.E., Act, as amended (Tamil Nadu Act 10 of 2003), "Religious Institution" means a math, temple or specific endowment and includes 1) a samadhi or brindhavan; or 2) any other institution established or maintained for a religious purpose. https://hcservices.ecourts.gov.in/hcservices/ As per the amendment, "Samadhi" means a place where the mortal remains of a guru, sadhu or saint is interned and used as a place or public religious worship. There is no evidence even to show that the institution was a samadhi of Dakshinamoorthy, son of the settlor of Ex.A.1. The recitals of the said document clearly shows that it was only a math, as defined in the Section. The amended Act, Act 10 of 2003, covers even the Samadhi or Brinthavan under the purview of "Religious Institution", if it is used as a place of public religious. 20. As per Ex.A.1, from the income of the property dedicated, Kumbabishekam has to be performed to Dakshinamoorthy deity, after the same is installed in a pucca building. It is not in dispute that Kumbabishekam is only a public religious function, relating to Hindu religion. Further, as per the settlement deed, charity of poor feeding has to be performed during the month of Karthigai and therefore, the beneficiaries are the public, as per Ex.A.1 and therefore, it cannot be construed as a private institution. 21. As contemplated under Section 6(20) of the Act, the main test to consider whether an institution is a private one or a temple dedicated to public as a religious institution, the following ingredients are essential : 1) Is there any dedication of property to perform public charity ? 2) Whether there is free access to public to worship the deity as a matter of right ? 3) The important features required to consider the involvement of the public in the regular important activities of the institution. 22. It has been clearly established by way of evidence that as per Ex.A.1, settlement deed, the testator has dedicated 6.38 acres of land for the Madam. The term Madam is otherwise known as Math. As per the averments of the settlement deed, public charity to be performed by way of poor feeding and therefore, the beneficiaries are the public, which cannot be disputed. 23. As per the settlement deed, Dakshinamoorthy deity should be installed after the thatched shed is removed and pucca building is constructed. The settlement deed reads that from and out of the income of the dedicated property, after constructing a pucca superstructure, the deity of Dakshinamoorthy should be installed at the Madam (Mutt) and daily poojas, deeparathana and kumbabishekam shall be performed. https://hcservices.ecourts.gov.in/hcservices/ 24. The daily poojas, deeparathana and the festival of Kumbabishekam are related to a public temple and not for any Samadhi. As per the settlement deed, the settlor has clearly stated that Kumbabishekam, daily poojas and deeparathana shall be performed to the deity and therefore, the plea of the respondent is totally a self-contradictory version to enjoy the property as his own and hence, the respondent cannot claim the institution as a private Samadhi. 25. It is clear that the Court below has not decided the suit, on the legal and factual aspects, based on the evidence available on record and therefore, this Court is of the view that the appeal has to be allowed and the impugned Judgment and Decree are to be set aside. Accordingly, the points for determination in this appeal are answered in favour of the appellant and against the respondent. 26. In the result, the appeal is allowed and the impugned Judgment and Decree passed by the court below is set aside, upholding the order passed by the Commissioner, H.R. & C.E., Chennai. However, there is no order as to costs. Tsvn Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Subordinate Judge Nagapattinam. 2. The Commissioner H.R.& C.E., Admn., Department, Nungambakkam High Road, Chennai – 34. 3. The Section Officer, VR Section, High Court, Madras. + 1 cc to Spl Govt Pleader, SR No. 6943 ASM(CO) SR/22.5.2008 A.S.No.285 of 1997 https://hcservices.ecourts.gov.in/hcservices/