IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :11.06.2010 CORAM: THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH A.S.No.414 of 2000 and C.M.P.No.185 of 2009 Sri Chennapuri Devanga Sangham, By its President, K.Sambiah .. Appellant/plaintiff Vs. The Commissioner, HR & CE Department, Chennai-34. .. Respondent/Defendant Prayer:- This appeal filed under Section 96 of C.P.C against the Judgment and Decree of the V Asst. City Civil Court, Madras in O.S.No.9169 of 1992 dated 28.08.1999. For Appellant : Mr.A.Venkatesan For Respondent : Mr.M.R.Murugesan, (Spl.G.P. For HR & CE.) JUDGMENT This appeal is preferred against the judgment and decree passed by the lower Court in O.S.No.9169 of 1992 dated 28.08.1999. The plaintiff before the lower Court is the appellant herein who lost the case filed before the lower Court under Section 69 of HR & CE Act, challenging the order passed by the Commissioner in A.P.No.73 of 1990 dated 10.4.1992. 2. The brief facts of the case of the plaintiff before the lower Court would be as follows:- 2(1) The plaintiff is a society registered under the Central Act XXI of 1860. Sri Kannikalamma Temple situate at No.3, Namasivaya Mudali Street, Korukkupet, Old Washermenpet, Madras–600 021 was founded and established by Devanga Community in the property owned by K.Alavandar Naidu and K.Venkatapathy Naidu and the property is maintained by Hindus. https://hcservices.ecourts.gov.in/hcservices/ 2(2) The members of the Devanga Community residing at Madras formed themselves into a Society in the name of Sri Chennapura Devanga sangham, subsequently registered under the Central Act XXI of 1980. 2(3) The membership for the said sangham Society is open exclusively to the members of the Devanga Community. K.Alavandar Naidu and K.Venkatapathy Naidu, who were the owners of the land, on which the temple was founded, executed an agreement and registered the same as Document No.4438 of 1975 dated 16.06.1975 providing therein that the President and Treasurer of the Plaintiff's sangham would be Ex-officio President and Treasurer of the temple and also that in the circumstances the management of the Temple came to be vested ultimately with the Plaintiff sangham. 2(4) The Plaintiff therefore sought a declaration under section 63(b) of the Act, before the Deputy Commissioner, Hindu Religious and Charitable Endowment (Administration Department) Madras – 34 in O.A.No.58 of 1985, as the founder of the Temple and Managing the temple in conformity with the line of succession, to specifically provide for that the founder is a hereditary trustee within the meaning of Section 6(11) of the Act. The Deputy Commissioner by his order dated 18.12.1989 in O.A.NO.58 of 1985 dismissed the application, on the ground that the temple had no property, that it is not maintained by the member of a particular community and that it is maintained from and out of the interest received from the deposits made by the members of the Devanga Community and that the plaintiff sangham came into existence only after the formation of the temple. The plaintiff contended that all these findings are baseless, contrary to facts and evidence adduced. The plaintiff therefore filed an appeal before the defendant under Section 69 of the Act in A.P.No.13 of 1990. 2(5) The defendant by its order dated 10.04.1992 dismissed the appeal on the ground that the owner of the Temple is not traceable, that the temple was not founded by the Devanga Community, and that the plaintiff is not a hereditary trustee within the meaning of Section 6(11) of the Act. 2(6) The Plaintiff hence obliged to file this suit under Section 70 of the Tamil Nadu Act XXII of 1959, to set aside the order of the defendant in A.P.No.73 of 1990 dated 10.04.1992. 2(7) The Plaintiff filed the documentary evidence marked as Ex.A1 to A5 and examined the President as P.W.1 before the Deputy Commissioner. The defendant has not correctly appreciated the scope of the oral and documentary evidence adduced before the Deputy Commissioner. In the agreement dated 16.06.1975, marked as Ex.A3 before the Deputy Commissioner, it is clearly recited that the suit temple is called the "Kanny Kalagudi", that the owners of the land https://hcservices.ecourts.gov.in/hcservices/ are not the owners of the temple and that the members of the sangham by virtue of their office as president and members of the society, are members of the committee to maintain the temple and its affairs. The plaintiff therefore state that the plaintiff is the hereditary trustee of the temple under Section 6(11) of the Act. 2(8) The suit is a statutory action filed under Section 70 of the Tamil Nadu Act. The office of the defendant, whose order is sought to be set aside, is situate within the jurisdiction of this Court. Hence this Court has jurisdiction to try this suit. The suit is to set aside an order of the Commissioner, Hindu Religious and Charitable Endowment Administration Department, under Section 70 of the Act, has been filed. The plaintiff therefore prays for a judgment and decree : - i. Setting aside the order of the defendant made in A.P.No.73 of 1990 dated 10.04.1992. ii. In consequence thereof, declaring that the plaintiff is the hereditary trustee of the "Kannikalamma Temple" at No.3, Namasivaya Mudali Street, Korukkupet, Madras – 600 021. iii. Grant such further or other relief or reliefs as may be deemed fit and proper by this Court herein with regard to the facts and circumstances of the case. 3. The contentions of the defendant as mentioned in the written statement would be thus:- 3(1) The defendant denies all the averments contained in the plaint and states that they are incorrect and misleading. According to the plaintiff, the agreement made and executed by Tvl.K.Alavandar Naidu and K.Venkatapathy Naidu, who were the owners of the land on which the Temple was founded, given provision that the management of the Temple came to be vested ultimately with the plaintiff sangham is denied. The said agreement dated 16.06.1975 was marked as Ex.A3 before the Deputy Commissioner, HR & CE Administration Department, Madras 34 in O.A.No.58 of 1985, in which Tvl.K.Alavandar Naidu and K.Venkatapathy Naidu were called as 'first' party and 'second' party and 7 others were called as third party, fourth party, fifth party, sixth party, seventh party, eighth party and ninth party. In paragraph 2 of this agreement it is stated that the parties and 2 others who belong to Naidu Community, are the owners of the Temple. In paragraph 2 of the agreement it is stated that the President and Treasurer of Devanga sangham shall be the members of the committee by virtue of their office in the sangham and shall cease to be members of the Committee on their ceasing to hold the said offices and their successors in office shall become ex-officio members of the Committee. Parties 5 to 7 belongs to 'Devanga Caste', Party 8 belongs to 'Balaja' caste, and party 9 belongs to Brahmin Caste. In paragraph 4 of the agreement it is stated as follows : - https://hcservices.ecourts.gov.in/hcservices/ "And whereas parties 3 to 9 have approached the owners and offered to effect necessary repairs and improvement to the Temple and its surrounding land and make necessary additional constructions thereon and also to collect donations and build up a reserve fund for the permanent upkeep of the Temple and the surrounding building when erected, which fund shall also be utilised for the purpose of promotion and dissemination of Hindu Religion among the masses who are religious inclined." It has thus been proved that the plaintiff sangham is not entitled to claim any sole right over the suit temple. In fact different caste took part in the affairs of the Temple. These grounds are unsustainable both in law and on facts. 3(2) Arulmighu Kannikalamma Temple situated at No.3, Namasivaya Mudali Street, Korukkupet, Old Washermanpet, Madras-21 is a public religious institution within the meaning of Section 6(20) of the Tamil Nadu HR & CE Act 1959 (Tamil Nadu Act 22 of 1999), "hereinafter called the Act" and coming under the control of the HR & CE Administration Department. The contention of the plaintiff is that the plaintiff sangham is the hereditary trustee of the suit temple founded by the members of the plaintiff sangham is false. The defendant submits that the statements of the plaintiff are controvertial plea. According to them, the suit Temple was founded in the land owned by Tvl.K.Alavandar Naidu and K.Venkatapathu Naidu and being established by the Devanga Community people, residing at Madras. In the meanwhile they formed a society in the name of Sri Chennapuri Devanga sangham and subsequently registered under the societies Registration Act on 16.05.1958 (Central Act XXI of 1860) Tvl.K.Alavandar Naidu and K.Venkatapathy Naidu who were the owners of the land on which the Temple was founded have dedicated the Temple and executed an agreement, providing therein that the President and Treasurer of the plaintiff sangham would be the Ex- officio President and Treasurer of the Temple, so that the management of the Temple came to be vested ultimately with the plaintiff sangham. When the Assistant Commissioner, HR & CE Administration Department Madras had issued a notice in RC.No.5252/82 A3 dated 20.07.1982 calling for explanation as to why non hereditary trustees should not be appointed for the suit temple, the plaintiff sangham had filed an Original Application under Section 63(b) of the Act, before the Deputy Commissioner, HR & CE Administration Department, Madras to establish their hereditary right over the temple. The said application was dismissed by the Deputy Commissioner in this order dated 18.12.1989 in O.A.No.58/85. Aggrieved by the said order the plaintiff sangham has filed an appeal petition before the Commissioner HR & CE Administration Department, Madras under Section 69(1) of the Act which was also dismissed on 10.04.1992 in A.P.No.73 of 1990. Against that order, the plaintiff has filed this present suit in O.S.No.9169 of 1992 before this Court. This defendant denies all the averments contained in para 6 to 8 of the plaint and states that they are incorrect and misleading. The averments that the plaintiff sangham is the hereditary trustee of the suit temple is https://hcservices.ecourts.gov.in/hcservices/ incorrect. The plaintiff's claim before the statutory authorities has become futile. The plaintiff sangham has failed to prove their case before the statutory authorities. The documents Ex.A.1 to A5 filed before the Deputy Commissioner HR & CE Madras in the earlier proceedings are not in any way helpful to the plaintiff. Ex.A1 is the certification of Registration of Societies under Act XXI of 1860 to show that 'Sri Chennapuri Devanga sangham was registered in S.No.55 of 1958 on 16.05.1958. Along with it, memorandum of affiliation' of the said sangham has been appended as Ex.A2. At the heading it is mentioned that it was established in the year 1942. The objects of the sangham are enumerated under the heading 3 objects. The object relevant to the decision to be arrived at is extracted, "To help and manage, as a managing body, the affairs of Sri Kapila Vinayaka Temple." The name of the suit Temple is not found. The beneficiary of the sangham is only Arulmighu Kapila Vinayagar Temple and not the suit temple. Hence the plaintiff is not entitled to the prayer sought for. 3(3) Though the plaintiff sangham has filed documents Ex.A1 to A5 before the Deputy commissioner HR & CE Administration Department Madras, the plaintiff has failed to prove its case. This defendant submits that Ex.A1 is the certification of Registration of Societies under Societies Registration Act, there was no mention about the name of the suit Temple in the memorandum of affiliation of the plaintiff sangham which has been appended as Ex.A2. Ex.A3 reveals that not only the Devanga Caste but also other caste like Balija Naidu and Brahmins are also entitled to be the members of the committee and beneficiaries of the sangham. Ex.A4 is the notice issued by the Assistant Commissioner, HR & CE Madras–34 in RC.No.5252/82 A3 dated 20.07.1982 calling for explanation as to why non hereditary trustees should not be appointed for the Temple because the suit temple is public one participated by all caste of Hindu Public. Ex.A5 is the reply by the plaintiff sangham against the notice. Therefore Exs.A1 to A3, the documents filed by the plaintiff sangham, were also proved futile. The plaintiff has miserably failed to prove his case. 3(4) Though the name of the suit temple is called as 'Kannikal Gudi' in the agreement dated 16.06.1975 made by Tvl.K.Alavandar Naidu and K.Venkatapathy Naidu, it is also stated in the agreement that the above said persons, who belong to Naidu Community, are the owners of the Temple and the Brahmins are also participated. It is further stated in the agreement that the President and Treasurer of Devanga sangham shall be the members of the Community by virtue of their office in the sangham. As stated in para 6, the people belongs to Balija Naidu and Brahmin who are different classes are also entitled to be the members of the sangham. The defendant further submits that since the parties 1 and 2 as mentioned in para 6 of the agreement dated 16.06.1975 (Ex.A3) will represent the owners of the property and in case of vacancy by death or retirement or either of them, the survivor in the continuing party will have the right to https://hcservices.ecourts.gov.in/hcservices/ nominate party 1 and 2 and this will clearly prove that party 1 and 2 i.e. Tvl.K.Alavandar Naidu and K.Venkatapathy Naidu are having absolute right over the suit temple and that the plaintiff cannot over rule. Further para 7 of the agreement stipulates that the parties 3 to 9 will ever question the title of parties 1 and 2 representing the owners of the property and paragraph 8 makes it obligatory on the parties 3 to 9 to maintain proper accounts for the collection and expenditure of the temple and the accounts will be open to inspection of all the parties in the agreement. Para 14 empowers parties 1 and 2 to remove the persons responsible for acts of misfeasance, malfeasance and misappropriation and paragraph 15 provides for nomination in the vacancies arising from any parties 3 to 9, from among the members of the Devanga Community or from public to take place pending vacancy. Paragraph 16 provides that the audited balance sheet shall be sent to parties 1 and 2, and paragraph 17 prescribes that the committee consisting of parties 1 to 9 shall meet as and when necessary at the temple premises to discuss the subjects arising for the administration of the property. 3(5) The defendant submits that the suit is false, frivolous vexatious and hence it is liable to be dismissed with costs. 4. The lower Court had entered the trial by examining PW1 on the side of the plaintiff and had admitted Exs.A1 to A5 in support of the claim of plaintiff and had admitted Ex.B1 on behalf of the defendant. After appraising the evidence on either side, the lower Court had dismissed the suit filed by the plaintiff. Aggrieved by the said judgment and decree passed by the lower Court, the plaintiff had preferred the present appeal under Section 70 of the HR & CE Act. The appellant has also filed an application under Order 41 Rule 27 of C.P.C for reception of additional evidence. 5.C.M.P.No.185 of 2009:- The appellant has also filed CMP.No.185 of 2009 seeking permission to receive the amended bye-laws of the appellant's sangham as additional evidence. The averments in the affidavit to the petition run as follows:- Sri Kannikalamma Gudi situated at Door No.3, Namassivaya Mudali Street, Korukkupet, Old Washermenpet, Madras – 600 021 is Denominational temple belonging to the Devanga Community and its origin is not known. The temple has been constructed in the land belonging to M/s.Alavandar Naidu and Venkatapathi Nadu, but has been exclusively managed and looked after only by persons belonging to the Devanga Community. On 16.06.1975 an agreement was entered into between the owners of the land Alavandar Naidu and Venkatapathi Naidu and Devanga Community people, in and by which the land owners are confirmed and agreed to the Devanga Community people to continue to manage the affairs of the suit temple. However in order to see that funds are mobilised for repairing, renovating and improving the suit https://hcservices.ecourts.gov.in/hcservices/ temple, whose origin was not known to the two respectable persons hailing from Balija Naidu Community and Brahmins Community, they joined as parties to the agreement so that they will also put forward efforts in mobilising funds. However the temple being belonging to Devanga Community, it has been managed and administered both before and after the agreement dated 16.06.1975 only by persons belonging to Devanga Community till date. 5(A) While matters stood thus, the Assistant Commissioner HR & CE Department took proceeding on 31.07.1982 intending to interfere with the management of Devanga Community, called upon the petitioner to submit returns, accounts etc., As the temple is a denominational temple under the management of petitioner / appellant sangham and not a public temple falling within the preview of HR & CE Act 1959, the petitioner sangham filed an application under Section 63(b) of the Act in O.A.No.58 of 1985, praying for a declaration that the petitioner's sangham is a hereditary trustee within the meaning Section 6(11) of HR & CE Act 1959. The said O.A.No.58 of 1985 was dismissed on wrong premises and appeal filed by us before the Respondent Commissioner in A.P.No.73 of 1990 was also dismissed on wrong grounds. We were therefore obliged to file a statutory suit in O.S.No.9169 of 1992 before the V Assistant Judge, City Civil Court, Madras as per Section 70 of the HR & CE Act 1959. The said suit has also been dismissed on unsustainable grounds and therefore we have been obliged to file the above A.S.No.414 of 2000 before this Court and the said appeal is pending. 5(B) Among various reasons put forwarded by the HR & CE Department and the learned trial Court in dismissing the suit, one ground upon which the suit has been dismissed is that the bye-laws Ex.B1 did not refer to the management of the suit temple Kannikalamma Gudi and it refers to the management of Sri Kapila Vinayaka Devasthanam. This finding came to be made on the basis of Ex.B1 which is the Unamended Bye-law and not in existing Amended Bye-laws. It is no doubt true that, the then president of the sangham by mistake came to file the unamended Bye-laws which refer only to the management of Sri Kapila Vinayaka Devasthanam, but not the suit temple, Kannikala Gudi. 5(C) The then president of the sangham had committed the mistake, inadvertently in not filling the Amended Bye-laws both before the Deputy Commissioner, Commissioner and learned trial Court. Evidently the Amended Bye-laws which the suit temple Kannikalamma Gudi also came to be included for the purpose of management by the petitioner / Appellant sangham. Since the present body of the sangham has assumed the office recently this application for reception of the Amended Bye-Laws as additional evidence under order XLI Rule 27 of Civil Procedure Code is filed. https://hcservices.ecourts.gov.in/hcservices/ 5(D) The non filing of amended bye laws by the petitioner Sangham before the Deputy Commissioner, Commissioner and the Trial Court is not willful or due to the negligence, but due to the 'bona fide' mistake on the part of the previous President of the petitioner Sangham who conducted the proceeding earlier. The interest of the petitioner's Sangham should not suffer by reason of such mistake and in the interest of justice this Court has got every jurisdiction to receive the amended bye-laws as additional evidence. The respondent will not prejudiced in any manner by this Court allowing us to file the amended bye-laws as additional evidence as otherwise both the temple and petitioner Sangham will be put to serious prejudice, hardship and irreparable loss. 6. Heard Mr.A.Venkatesan, the learned counsel for the appellant/plaintiff and Mr.M.R.Murugesan, Spl.Govt.Pleader HR & CE appearing for the respondent. 7. On a careful perusal of the pleadings, evidence produced before the lower Court, the judgment and decree passed by the lower Court, the grounds raised in the appeal memo and the argument advanced on either side, this Court could see that the following points would emerge for consideration. 1.Whether the plaintiff/appellant sangham has to be declared as the hereditary trustee as per Section 6(11) of the Act, to the suit temple ? 2.Whether the order of the defendant made in A.P.No.73 of 1990 in respect of the suit temple is liable to be set aside ? 3.Whether the application in C.M.P.No.185 of 2009 seeking permission to receive additional evidence is allowable ? 4.Whether the judgment and decree passed by the lower Court are liable to be set aside and is the appeal allowable ? 5.To what relief the appellant is entitled for ? 8. For convenience, the ranks of parties before the lower Court is maintained infra. 9. The learned counsel for the appellant / plaintiff would submit in his argument that the lower Court erred in upholding the order of the defendant passed in A.P.No.73 of 1990 dated 10.04.1992 questioned by the plaintiff and the reasons stated by the lower Court that two people hailing from other communities Balija Naidu and Brahmin were also in the committee to administer the temple and therefore, the plaintiff cannot be declared as hereditary trustee are incorrect. He would further submit that the plaintiff sangham is a Devangar sangham governed by its own memorandum of association which would state that the people from Devangar community alone can become its members and the mere inclusion of two more persons belonging to different community in the agreement made by the sangham with the owners of the land Mr.K.Alavandar Naidu and Mr.K.Venkatapathi Naidu, https://hcservices.ecourts.gov.in/hcservices/ produced as Ex.A3, will not take away the character of the plaintiff sangham. He would further submit in his argument that the memorandum of association of the plaintiff would contain its objects to manage the affairs of Shri.Kapila Vinayaga Devasthanam and Kannikalamma Gudi temple. This would clearly establish the right of the plaintiff's sangham over the management of the affairs of the suit temple. He would further submit in his argument that the right of the management of the suit temple given by the owners of the land to the plaintiff sangham conferred in the agreement Ex.A3, would establish that the plaintiff sangham is having the right to claim the Hereditary Trusteeship for maintenance of the suit temple. He would further submit in his argument that the other two persons mentioned in Ex.A3 agreement namely Mr.T.Ramakrishna belonging to Balija Naidu community and Mr.A.Narasimmarao belonging to Brahmin community were the elders interested in the temple and were residing in the said area and their inclusion would not take away the right of management given to the plaintiff sangham in Ex.A3. He would further submit in his argument that the parties mentioned in the agreement as 3 and 4 would cease to be the members of the committee when they were ceased to be the President and treasurer of the plaintiff sangham and it would show that the president and Treasurer of the plaintiff sangham's are continuing to be the members of the committee, who are in the management of the suit temple. 10. He would again submit in his argument that the lower Court as well as the defendant, the Appellate Authority failed to appreciate this point in Ex.A3 in order to find that the plaintiff sangham is in management of suit temple and thus entitled to whole hereditary trusteeship. He would further submit that the right of management of the suit temple was predominantly conferred only to the Office Bearers of the plaintiff sangham and the presence of few members of some other community will not take away the character of the committee to maintain the suit temple as one belonging to Devangar community. 11. He would further submit that the definition of Hereditary Trustee under Section 6(11) of the Act would also include the persons by usage, who are performing the functions of management as regulated by the founder of the