In the High Court of Judicature at Madras Dated: 15/07/2003 C o r a m The Honourable Mr. Justice P. SHANMUGAM and The Honourable Mrs. Justice R. BANUMATHI Appeal Suit No.259 of 1987 The Commissioner, H.R. & C.E.(A) Department, Madras.34. .. Appellant -Vs- Arulmighu Arasadi Karpaga Vinayagar Temple, Triplicane, Madras-5 now its Trustee C.S.Mani Mudaliar .. Respondent Prayer : Appeal suit filed against the judgment and decree dated 16.4.1984 made in O.S.No.1677 of 1981 on the file of the XVII Assistant Subordinate Judge, City Civil Court, Madras. !For Appellant : Mr. G. Sukumar, Spl. G.P. (H.R.& C.E.) ^For Respondent : Mr. K. Yamunan :J U D G M E N T P. SHANMUGAM, J. The defendant in the suit is the appellant. In the plaint filed under Section 70 of the Tamil Nadu Hindu Religious Act 22/59, his prayer is for cancelling the orders of the Deputy Commissioner and Commissioner of H.R. & C.E. dated 20.5.78 and 30.8.80 respectively and for declaring that the temple is a private temple. The suit was decreed as prayed for. The present appeal is filed by the Commissioner, H.R.& C.E. 2. The brief facts of the case are as follows : The parties are referred to as per the ranking in the trial Court. The plaintiff, namely Arulmigu Arasadi Karpaga Vinayagar Temple, represented by its hereditary Trustee C.S. Mani Mudaliar, has filed an application O.A. No.21 of 1976 under Section 63 (a) of Tamil Nadu H. R. & C.E. Act for a declaration that the temple in question is not a temple as defined under the Act before the Deputy Commissioner, who by an order dated 20.5.78, held that the temple is a public temple. According to him, the decision rendered in C.S.320/1912 dated 21.8.191 4 has become final in establishing the public character of the temple and observed that the petition is only to prolong the misappropriation of the income of temple properties and ultimately dismissed the application, directing the proper authorities to take effective action to prevent further misappropriation of the temple funds and to make suitable arrangements by way of appointing an Executive Officer to set right the administration. 3. As against the order of the Deputy Commissioner, C.S. Mani Mudaliar filed an appeal in A.P.NO.30 of 1979 before the Commissioner, Hindu Religious Charitable Endowment Administration, who by order dated 30.8.1998, confirmed the order of the Deputy Commissioner and dismissed the appeal. The present suit in O.S.NO.1677 of 1981 came to be filed under Section 70 of the Act for the relief referred to above. 4. Sri Arasadi karpaga Vinayagar Temple (hereinafter referred to as suit temple) came into existence in or about the year 1850. The deity of God Vinayagar was enshrined in the temple and there were also deities of God Subramania and others. The temple is said to have been originally constructed and dedicated by the ancestors of Chinnakavaram Solayappa Mudaliar. The temple is situated in the premises at NO.120, Veeraraghava Mudali Street, Triplicane, Madras. In order to make proper management of the temple, a Deed of Indenture was entered into on 20.4.1911 between Chinnakavanam Solayappa Mudaliar, son of Chinnakavanam Arunagiri Mudaliar and Chinnakavanam Thathulinga Mualiar, son of the said Chinnakavanam Sollayappa Mudaliar. As per this deed, all the estate, right and title which vested with the Chinnakavanam Solayappa Mudaliar shall devolve upon Chinnak avanam Thathulinga Mudaliar as Dharmakartha of the Trustee of the said temple. 5. In reference to this temple, a suit in O.S.No.320 of 1912 was filed before the High Court of Judicature at Madras on the Original Side against C.Thathulinga Mudaliar praying for a declaration to declare that the plaint Foundation is a public religious trust, that the defendant has no right to be Dharmakartha or Trustee of the said temple to finalise a scheme for election or appointment of Trustees of the said temple and for the management and administration of the affairs of the said temple. 6. The defendant Thathulinga Mudaliar in paragraph 7 of his written statement claimed to be the Dharmakartha, besides claiming a hereditary title as per the deed executed by his father dated 20.4.1911. He had specifically pleaded as follows : "The defendant denies all the allegations set out in the plaint that the temple is a private Trust. On the other hand, the defendant even during the lifetime of his father was always anxious to safeguard the interest of the temple as a public place of worship." (emphasis added) 7. The suit was decreed holding that the defendant as eldest member of the family was entitled to be Dharmakartha and that the Trustees were entitled to be Dharmakartha of the temple. It was declared as follows : "I am of opinion that in order to prevent recurrence of any such attempts, it is necessary to declare that the temple and the properties were public endowments endowed largely by the public, though, of course, the members of this family have took active interest in the temple and probably were helpful in collecting subscription and adding to those properties and also helping the temple with their own funds." (emphasis added) The present suit and the proceedings have to be considered in this background. 8. The line of succession of the present Hereditory Trustee can be set out as below : Thathulinga Mudaliar (died-1954) | | | Sanju Mudaliar (died-1.9.58) | | | Shivalinga Mudaliar | | | Mani Mudaliar 9. The Genology of the family as set out in C.S.No.320 of 1912 is as follows : Thambiappa (Kandappa's brother) | | | | | _______|___ Muthia Mudaliar Sister Kannappa | | (died before 1810) | Arunagiri Subbraya | | (died prior (Succeeded | _______|______ to 1882) in 1878) daughter | | | | Gangathara Somu | | (died (Pre-deceased | | issueless Gangathara | | in 1877) | | | | | | Chengalraya | | (died after | ____|___ Soliyappa | | | became | Naraya Sundaram trustee) | -naswami | (defendant | of Solayappa) | _____________|_________ | | | | | | Solayappa Krishnaaim Munisami | (Preceaded Defendant Solayappa) 10. The case of the plaintiff is that the Temple is a private Temple put up for the benefit of the family and used by the members of the family for their religious worship, and accordingly, the public has no right to worship in the temple and the Hindu Religious and Charitable Endowment Department has no right upon the trustees to seek dismissal of their application to declare that the temple is a private temple. The suit came to be filed under Section 70 of the said Act. 11. The Commissioner, in his written statement inter alia, contended that the decision rendered by the High Court of Judicature in C.S. No.320 of 1912 was to the effect that the temple is a public one and the character of the temple is correctly confirmed in O.A.No.430 of 1 951. The plaintiff has admitted that his forefathers were functioning only as hereditary trustees and there is no basis to contend that the temple is a private property of the plaintiff's family and that no oral or documentary evidence was placed before the Deputy Commissioner or the Commissioner to hold otherwise. It is further pleaded that the plaintiff having accepted that the persons were helping others as a hereditary trustee and having prayed for recognition as hereditary trustee, it is not open to him to seek for a declaration that the suit temple is a private temple. In other words, the defendant had claimed that the plaintiff is estopped from going back on the nature and character of the temple and the function of the hereditary trustees. A reply statement was filed by the plaintiff stating that the proceedings in C.S.No.320/1912 has culminated at the time when there was no Hindu Religious and Charitable Endowment Act and from the said proceedings, it is clear that the suit temple as a private one under the control of Hindu Religious and Charitable Endowment Department and the burden is on the Hindu Religious and Charitable Endowment Department to establish that the temple is a public temple. 12. The learned 17th Assistant Judge, City Civil Court, Chennai had framed the following issues :- "1. Whether the plaintiff is entitled to seek for cancellation of the order passed by the Deputy Commissioner dated 30.8.1980? 2. Whether the suit temple is a private temple? and 3. whether the Hindu Religious and Charitable Endowment has jurisdiction over the same?" 13. Learned Judge who tried all the three issues together, found that the suit temple is a private temple and that the hereditary trust is entitled to get the orders of the Deputy Commissioner cancelled. The present appeal is against the said judgment. 14. Mr.G.Sukumar, learned Special Government Pleader appearing on behalf of the Department, by referring to the various earlier orders, argued that the hereditary trustee,namely, C.S.Mani Mudaliar is estopped from raising the issue, the said question having been concluded in all the previous proceedings and before the Court and quasi judicial authorities and it is not open to the hereditary trustee to open the concluded issues. 15. Mr.K. Yamunan, learned counsel appearing on behalf of the respondent submits that the issue did not arise for consideration in the earlier proceedings and there cannot be res judicata on the question of law. According to him,the plaintiff is entitled in law to raise the issue of public character of the temple as well as the right of the management. It is argued that the learned Judge has considered the disputed facts and has given the finding as to the private nature of the temple and as to the right of the hereditary trustee and the judgment does not call for any interference. 16. We have heard the counsel for both sides and considered the matter carefully. 17. The points that arise for consideration are: (1) Whether the nature of the temple has been substantially in issue in the earlier suit C.S. No.320 of 1912 ? (2) Whether the plaintiff is estopped from reopening the issue ? (3) What is the nature of the suit temple ? 18. We may look into some of the relevant provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 which deal with the recognition and appointment of hereditary trust. SubSection 4 of Section 26 deals with the qualifications of the trustees. If a hereditary trustee becomes subject to any of the disqualifications mentioned in Sub Section (1), the Joint Commissioner or the Deputy Commissioner may supersede the trustee. Section 27 mandates the hereditary trustee of a religious institution to obey all lawful orders issued under the Provisions of the Act. Section 20 of the said Act speaks of the care required of a trustee and his powers. Section 53 empowers the Government to suspend, remove or dismiss trustees. Under Sub Section(2) of Section 53 the appropriate authority may suspend, remove or dismiss any trustee on the grounds set out therein. SubSection (4)of Section 53 empowers the appropriate authority to place the trustee under suspension and to appoint a fit person to discharge the duties and to perform the functions of the trustee. The Act, thus deals with the hereditary trustee their qualifications, appointment and control. 19. The petitioner's great grand father, viz. Thathulinga Mudaliar, had filed an application before the Deputy Commissioner for recognising his right as a hereditary trustee. The Deputy Commissioner, by his order dated 2.1.1952 in O.A.430 of 1951 (Ex.A.5) has passed the following Order : "In view of Ex.P.1, the judgment in C.S.320 of 1912 on the file of the Original Side of the High Court, Madras, it is crystal clear that the petitioner is the hereditary trustee of the temple. The suit was under Section 92 of Civil Procedure Code for a declaration that the temple was a public religious trust and that the petitioner had no right to be the Dharmakartha or trustee of the temple and that if the plaintiff proved if he was one, he should be removed and other trustees should be appointed and that a scheme should be framed. His Lordship Mr. Justice Kumaraswami Shastriar held on the first issue, namely, "Is the defendant (present petitioner) not entitled to the office of the trustee" in defendant's favour and held that the petitioner had the right to be the Dharmakartha of the temple. He had held that the eldest member of the petitioner's family was entitled to be Dharmakartha. On the second issue, relating to the framing of a scheme, His Lordship held that it was not necessary to do so and it would be sufficient to direct the publication of an extract of the annual account of the income and expenditure. In these circumstances, the petitioner's claim to hereditary trustee is well founded. The petition is allowed. Sd/- N. Venkatarama Ayyar Deputy Commissioner H.R. & C.E. (Admn.) Dept. dt. 29.1.59 Coimbatore. " 20. The above order proceeds on the accepted stand of the plaintiff's great grand father that the suit temple is a public temple and that he may be recognised as a hereditary trustee The said application and his request for recognition itself pre-supposes that the temple is a public temple and was under the control and management of the Department. The order has become final. 21. In the present application before the Deputy Commissioner in O.A. No.21 of 1976, the plaintiff rested his claim on the deed of indenture dated 20.11.1911 and the judgment in C.S. No.320 of 1912. The Deputy Commissioner, in his order, found that the fact that the temple was under the management of erstwhile Board after its formation, and in any event, the order in O.A.NO.430 of 1951, has become final. The petitioner has conceded that he is managing the accounts as per the directions of the Court in C.S.No.320 of 1912 and the accounts have been periodically verified by the Department officials who have signed in token of the same. He has also conceded that the Hundial is kept under lock and key, the amount is accounted by the hereditary trustees and the income is entered in the ledger,but there is decrease and increase in the hundial collections. The Deputy Commissioner has also noted the fact that the petitioner has been deliberately keeping away the order of declaration made in C.S.320 of 1912 by the High Court. It was found that the temple had already been declared as a public temple and none of the events subsequently have ever changed the character of the temple from its public nature. There are no bona fides in the application to declare the suit temple as a private temple. The Deputy Commissioner had also referred to all the ingredients required for a public temple viz. the public assemble in the temple in a large number on important days and they have to stand in queue for hours to have the 'Dharshan' of the Lord; festivals were also being celebrated by public in a very grand scale by the individual 'Kattalaidhars', 'Abishekam' and 'Arathanai' and disbursement of 'Prasadams' were also being done regularly;and further, there is an inscription as to the performance of 'Kumbabhishekam' in the year 1954. He has clearly concluded as follows : "So from all these evidences it is clear that the temple was and is being used as of right by the public as of right and the temple has already been declared as a public temple and none of the subsequent have ever changed the character of the temple from that of the public nature. If this temple cannot be treated as a temple defined under the Act, I feel that none also can ever be treated as a temple coming under the purview of the Act. Here the petitioner has not only refused to place all the documents with him that will lead to adverse inference in favour of the public nature, the decision of the 1912 case has become final in establishing the public nature. In the circumstances, I feel that only to pro-long the misappropriation of the income the petitioner has chosen to come to this Court with this petition and I find no reason to allow any of the petitioner's claim. In the result, the petitioner be and is hereby dismissed. Since the petitioner's own admission has shown that there is misappropriation of a huge income of the properties, it is for the concerned administration authorities under the Act to take effective action to prevent further misappropriation of this public temple and for making suitable arrangements by way of appointing an Executive Officer to set right the administration." 22. On Appeal, the Commissioner, while confirming the finding of the Deputy Commissioner, referred to a document dated 11.2.1951 wherein the then Collector had sold a piece of land adjacent to the temple land in favour of one P.S.Moothiah Mudaly. A reference to the document dated 20.4.1911 was made wherein Taulinga Mudaliar has been recognised as 'Dharmakartha' of the temple and it confirms the dedication of the temple. This refers to the management of the temple and not to the character of the temple. The Commissioner has referred to Exhibits which establish that there is public worship in the temple as of right and the performance of festivals in which the public freely participate and concluded that all the ingredients of a public temple are present. The records prove that the Deities are taken out in procession. The presence of Hundial in the temple is significant and it cuts the root of the appellant's claim that it is a private temple. The Commissioner commented upon the conduct of the appellant in not filing a copy of the judgment of the High Court in C.S.No.370 of 1912, though the appellant has referred to it in his application and his evidence. It was pointed out that the appellant was trying to suppress the materials before the him. For all these reasons, the Commissioner confirmed the findings of the Deputy Commissioner and dismissed the appeal. 23. On the fact that temple came into existence 70 years prior to the deed of indenture dated 20.4.1911, is not in dispute. The first document shows that there was dedication of the temple. The temple was dedicated to 'Vinayakar' and this document is executed by Chinnakavanam Solayappa Mudaliar in favour of his son Chinnakavanam Thathulinga Mudaliar recognising him as the hereditary Dharmakarhta. The document further recognises that the office of the Trustee shall be hereditary. The order in O.A.430 of 1951 also recognises the right of sucession to the Trusteeship and hence the plaintiff's great grand father was declared as a hereditary trustee. The document Ex.A.3 reiterates the absolute dedication of the property to the religious institution. The expression 'dedication' has been used at more than one place in Ex.A.3. It says that the temple is dedicated to Vinayagar and that it was originally constructed and dedicated by the ancestors and that from the time of the said dedication, the temple is managed by the ancestors. The document reiterates their right of management of the properties of the temple and therefore, we are of the view that the dedication is complete. This Court has recognised the public nature of the temple in the year 1912 and the fact that the plaintiff's great grand father has applied for recognition as a hereditary trustee. The following is the relevant extract from the judgment in C.S. No.320 of 1912 :- "This is a suit filed by the plaintiff with the consent of the Advocate General under section 92 of the Civil Procedure Code for a declaration that the plaint foundation is a public religious trust and that the defendant has no right to be Dharmakartha or trustee of the plaint temple, or if he is one, that he should be removed, for trustee being appointed and for a scheme to be settled in respect of the election or appointment of trustees and the management of the temple. The plaintiff state that the temple of Karpaga Vinayagar Covil situated in Triplicane was a public religious trust founded more than 70 years ago and dedicated to worship by the public, that the deity of Subramania was also enshrined in the temple, that the temple was resorted to by a large body of the worshippers and Ubavam and daily offerings were being conducted with the funds contributed by devotees and that the temple is possessed of properties, movable and immovable, to the value of Rs.40,000/-. They state that according to the usage of the institution, the management of the temple properties and affairs devolved on the Dharmakartha nominated by the worshipping public represented by the Headman of Triplicane and the Kainkaryadars and Ubayakarars of the temple, that in 1881 Solayappa Mudaliar, the father of the defendants, was appointed by them and continued as Dharmakartha till 1911, that Solayappa Mudali by a deed dated 20-4-1911 (Exb.M) alleging that the charity was founded by his ancestors and was a family trust purported to transfer and assign the Dharmakarthaship in favour of his son, the defendant in the suit and that after his death the defendant has taken upon himself the management of the temple and its affairs claiming to be Dharmakartha by reason of the assignment by virtue of succession by heredity to the Dharmakarthaship. They further state that the temple is a public trust, that the defendant's claim to hereditary Dharmakarthaship is unfounded and that Solayappa Mudali had no right to transfer the trusteeship by the document dated 20-4-19 11. They also allege mismanagement by Solayappa Mudali and state that the defendant who is setting up hereditary Dharmakarthaship is disqualified from being a Dharmakartha by reason of his assertion that the property is a family charity. The defendant filed a written statement admitting that the trust was a public charitable trust but denying that, either according to the usage of the institution or otherwise there was any election of the trustees as alleged in the plaint. He also denies that his father Solayappa was ever elected as a trustee and state that his predecessors in title have been hereditarily trustees of the temple which was founded by Muthiah Mudaliar. He gives the course of succession and claims to be the present Dharmakartha both under the Hindu law as hereditary Dharmakartha and by virtue of the appointment made by his father under the deed dated 20-4-1911. He denies that either he or his father were guilty of mismanagement, but on the contrary, states that they have spent large sums of money for the benefit of the temple. The following issues were settled : 1. Is the defendant not entitled to the office of Trustee ? 2. Should a scheme be framed ? 3. To what relief are the plaintiffs entitled ? First Issue : The title deeds of the various properties belonging to the temple have been filed by the plaintiffs as Exbs. A to N. These documents show, beyond all doubt, that the public gave certain properties to the temple, that certain properties were purchased by the trustee for the time being on behalf of the temple with funds belonging to the temple and that the Dharmakartha for the time being added to the properties. There can be little doubt that Muthiah Mudaliar who purchased property for the temple was instrumental in having the temple built, and it is further probable that the various successive Dharmakarthas contributed from their private funds and envicted the temple true extent. This however, would not make the temple a private charity which was founded by the ancestors of the defendant out of their own private funds and dedicated to the worship of the public. As regards the course of succession, ....." "But as I am satisfied that the usage was for the eldest membero first respondent partnership firm the family to be Dharmakartha, it will be sufficient for me to find the issue in the defendant's favour and to hold that he has at present the right to be