IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.08.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.876 of 2001 A.Krishnan .. Appellant/Plaintiff -vs- 1.The Commissioner, Hindu Religious and Charitable Endowments Department, Nungambakkam, High Road, Chennai-34. 2.The Deputy Commissioner, Hindu Religious and Charitable Endowments Department, Nungambakkam High Road, Chennai-34. .. Respondent/Defendants Prayer:- This Appeal has been filed under Order 41 Rule 1 of CPC r/w Section 70(2) of the Hindu Religious and Charitable Endowments Act against the decree and judgment dated 17.01.2001 passed in O.S.No.5142 of 1994 on the file of the V Assistant Judge, City Civil Court, Chennai. For appellant : Mr.W.C.Sridhar, Advocate For respondents : Mr.N.R.Murugesan, Special Government Pleader JUDGMENT The suit was filed challenging the order passed by the Commissioner, HR & CE Administrative Department, Chennai, in A.P.No.37 of 1990, which had arisen out of an application filed by the appellant herein in O.A.No.29 of 1988 under Section 63(b) of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 (hereinafter referred to as 'the Act'). The plaintiff's claim under Section 63(b) of the Act to appoint him as Hereditary Trustee for Arulmigu Sivasakthi Vinayagar Temple situated in P.W.D. Complex, Chepauk, Chennai-5, has been dismissed both by the Deputy Commissioner, HR & CE Administrative Department and by the Commissioner HR & CE, Administrative Department, which necessitated the plaintiff to approach the Civil Court by filing O.S.No.5142 of 1994. 2.The defendant in their written statement would contend that the trusteeship of a temple is treated to be hereditary, if the Office devolves by hereditary right or the hereditary devolution is regulated https://hcservices.ecourts.gov.in/hcservices/ by usuage or it is specifically provided for by the founder. There is no documentary evidence on the side of the plaintiff to prove any one of the above said features, as such he is not a hereditary trustee of the suit temple. That is why the second defendant has rejected the application filed by the plaintiff under Section 63(b) of the Act in O.A.No.29 of 1988. On appeal, the Commissioner – D1 also dismissed the appeal A.P.No.37 of 1990 preferred by the plaintiff against the order of the Deputy-Commissioner in O.A.No.29 of 1988. There was an idol already in existence at the PWD Complex, Chepauk, Chennai. The plaintiff, by profession a Building Contractor, had undertaken the renovation and reconstruction of the temple and the plaintiff himself had accepted this. As such the plaintiff cannot be considered as the founder of the suit temple. There was no line of succession as derived under Section 63(b) of the Act. The founder of the temple is not known. No accounts are produced relating to the construction of the suit temple and Kumbabishegam of the said temple. Further, no documentary evidence was placed by the plaintiff to prove his contention. There is a stone inscription laid down during Kumbabishegam and the recitals therein are as follows:- "mUs;kpF rptrf;jp tpehafh; Mya $Ph;nzhj;juz g[zh; mikg;g [ eph;khzk; ". As such it is very clear that there had been an idol or temple already in existence which in the course of time might have become dilapidated or which might have required the reconstruction (Punaruthsavam). The plaintiff had undertaken renovation and reconstruction as such the plaintiff cannot be called himself as the founder of the temple. Exhibits A1 to A4 produced by the plaintiff have been discussed clearly and categorically in the order of D1. Ex.A.1 is the photo copy of the stone inscription laid on the occasion of Kumbabishegam, dated 11.12.1983. There is a word "g[zh; mikg;g [ eph;khzk; " which shows that the petitioner has done only repair and renovation works and he is not the founder. Hence, this document has no material evidence to prove that the hereditary nature of the Office of the Trusteeship as claimed by him. Ex.A.2 is the copy of the invitation of the Kumbabishegam. Ex.A.3 is the bunch of festival notices of the temple and Ex.A.4 is the series of letters from the Assistant Commissioner, HR & CE, Madras-34 to the plaintiff permitting him to operate Bank Account and budget estimate for Fasli 1396. These documents did not support the claim of the plaintiff to prove hereditary right. The plaintiff has not produced cogent evidence to prove his claim. Hence, the suit is liable to be dismissed. 3.Before the trial Court the plaintiff has examined himself as P.W.1 besides examining one Gunaseelan as P.W.2 and exhibited Ex.A.1 to Ex.A.9. On the side of HR & CE department, the Executive Officer of Arulmigu Sivasakthi Vinayagar Temple, was examined as D.W.1 and Ex.B.1 to Ex.B.7 were marked. The learned trial Judge has framed six issues for trial and on the basis of the above said oral and documentary evidences, while answering Issue No.2 the learned trial Judge has held that the order passed by the Commissioner dismissing the claim of the plaintiff holding that the plaintiff is not entitled to the relief for declaration that he is the hereditary trustee of the suit temple under Section 63(b) of the HR & CE Act, need not be set aside and accordingly dismissed the suit, which necessitated the plaintiff to approach this Court by way of this appeal. https://hcservices.ecourts.gov.in/hcservices/ 4.The points for determination in this appeal are as follows:- 1)Whether the plaintiff is a hereditary trustee of the suit temple as defined under Section 6(11) of the HR & CE Act 1959? 2)Whether the decree and judgment in O.S.No.5142 of 1994 on the file of the V Assistant Judge, City Civil Court, Chennai, is liable to be set aside for the reasons stated in the memorandum of appeal? 5.Point No.1:- Admittedly the suit temple viz. Sri Sivasakthi Vinayagar temple is situated in PWD department complex, Chepauk, Chennai-5. According to the plaintiff, he had spent Rs.1 lakh for the construction of the temple and it was meant to public worship in the year 1983 and that the plaintiff as Civil Contractor by profession had spent from his personal funds and founded the institution and the Kumbhabizhegam was conducted in the year 1983 and he is in continuous management of the suit temple. As per the plaint, the plaintiff would contend that there was a hundial in the temple and the annual collection would be Rs.6,500/- and that he has been treating the deity as his 'Kula-Theivam' and he has appointed Kurukal for performing the daily poojas by spending Rs.225/- per month as a salary for Kurukal and that since the defendants – HR & CE Department have not appointed any non-hereditary trustee to the temple, he filed O.A.No.29 of 1988 before the Deputy Commissioner of HR & CE under Section 63(b) of the Act to declare him as a hereditary trustee of Shri Sivasakthi Vinayagar Temple situated in PWD Complex, Chepauk, Chennai. The Deputy Commissioner has dismissed the said application O.A.No.29 of 1988 and the appeal preferred by the plaintiff before the Commissioner in A.P.No.37 of 1990 was also dismissed and the suit filed by him before the Civil Court in O.S.No.5142 of 1994 challenging the order of the Commissioner in A.P.No.37 of 1990 was also dismissed. Section 6(11) of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 defines the Hereditary Trustee as "the trustee of a religious institution, the 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". According to the plaintiff, he is the founder of the suit temple and he is not in succession of any of his descendants/trustees. To show that he had constructed the suit temple the plaintiff has filed Ex.A.5-receipts. The suit was filed in the year 1994. All the receipts are dated subsequent to the filing of the suit. Except one order-form issued by Sri Kannan Store, which is dated 05.12.1983. The said order-form is in respect of forming Vinayagar idol with a weight of 30 to 35 kgs. The receipt reads that the total cost would be around Rs.30,000/- to Rs.34,000/-. Under the said order-form only a sum of Rs.500/- was said to be paid by the plaintiff towards advance and that the idol is to be delivered on 10.01.1984. But there is no material placed before the trial Court to show that the said idol was delivered on 10.01.1984 after the payment of the entire amount of Rs.30,000/- by the plaintiff to Sir Kannan Store. Further, the author of the above said receipt viz., the Proprietor of Sri Kannan Store, was also not examined to substantiate the claim that the orders placed by the plaintiff for delivery of Sri Vinayagar idol & Sri Murugan idol were delivered on the payment of the prices by the plaintiff. The other https://hcservices.ecourts.gov.in/hcservices/ receipts are all of the year 1995 to 1996. From Ex.A.5 we can not come to a conclusion that the suit temple was constructed by the plaintiff. D.W.1 is the Executive Officer of the Defendants-department. He would depose that from 4.7.1996 he was the trustee of the suit temple and he has received charges of the suit temple as the Executive Officer under Ex.B.1. Under Ex.B.3, notice was issued to the plaintiff. He has requested the Manager of State Bank of India not to receive the amount in respect of the suit temple in the name of the plaintiff – Krishnan Padayachi. Ex.B.5 is the notice issued to the plaintiff by the Thakkar of the suit temple demanding him to handover the records of the temple and also the valuables by 07.10.1996. To declare the plaintiff under Section 6(11) of the Act as Hereditary trustee, he must prove that he is a trustee of a religious institution or should show that the hereditary right has been devolved on him by succession or should show that by usage regulated or it is specifically provided for by the founder. To prove that he is in succession of the Officer of the trustee, the plaintiff has not proved that he is a trustee of the temple or the right of hereditariship has been devolved on him or the founder of the trust has, by usage, appointed him as the trustee. There is not even a scrap of paper filed before the trial Court to show that by way of spending Rs.1 lakhs he had constructed the suit temple. If the plaintiff claims that he is the founder of the temple and he is managing the temple and that it is a private temple, the remedy open to him is to file a suit under Section 63(a) of the Act, not under Section 63(b) of the Act. Both the Deputy Commissioner and Commissioner of HR & CE Department as well as the Civil Court in O.S.No.5142 of 1994 have concurrently held that the plaintiff has miserably failed to prove that he is the hereditary trustee of the suit temple and accordingly, rejected the relief of declaration of the plaintiff that he is the hereditary trustee of the suit temple. Under such circumstances, I hold on Point No.1 that the plaintiff has failed to prove that he is the hereditary trustee of the suit temple as defined under Section 6(11) of the Act. Point No.1 is answered accordingly. 6.Point No.2 :- In view of my discussion and findings in the earlier paragraph, I do not find any reason to set aside the decree and judgment in O.S.No.5142 of 1994 on the file of the V Assistant Judge, City Civil Court, Chennai. 7.In fine, the appeal is dismissed confirming the decree and judgment in O.S.No.5142 of 1994 on the file of the V Assistant Judge, City Civil Court, Chennai. In the circumstances of the case, there is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssv https://hcservices.ecourts.gov.in/hcservices/ To 1.The V Assistant Judge, City Civil Court, Chennai. 2.The Record Keepar, V.R. Section, High Court, Madras. 1 cc To Mr.W.C.Sridhar, Advocate, SR.47592. A.S.No.876 of 2001 KA(CO) RVL 20.10.2008 https://hcservices.ecourts.gov.in/hcservices/