IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.7.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No. 402 of 1997 1. The Commissioner H.R.& C.E.Admn,Department Nungambakkam High Road, Madras-34 2. The Deputy Commissioner H.R.C.E.Admn. Department,Trichy 3. The Inspector H.R & C.E. Admn Department Tindivanam .. Appellants/defendants -vs- Sri Lalithananda Saraswathi Baktha Samajam Rept. By its Secretary C.H.Marka Bandu Pasumalai Village, Mela Olakkur, Chengai Taluk .. Respondent/plaintiff This appeal is filed under Section 70(1) of H.R.&C.E. Act 22 of 1959 against the award passed in O.S.No.163 of 1988 dated 23.12.1994 by the learned Subordinate Judge, Tindivanam. For appellants : : Mr. M.R.Murugesan Spl.Govt.Pleader For respondent : : Mr.K.Kannan, Senior Counsel for Mr.R.Sunil Kumar, Advocate JUDGMENT Under this appeal, the decree and Judgement in O.S.No.163 of 1988 on the file of Subordinate Judge, Tindivanam is under challenge. 2. The averments in the plaint in brief sans irrelevant particulars are as follows: In the year 1930, a noble and eminent saint called Sri Lalithananada Saraswathi Swamy came and settled at the foot of the hill of Pasumalai in Melolakkur Village. Many devotees were attracted in and around the village due to his divinely and sacred life. Even devotees from Andhra Pradesh used to throng the village to pay respects to him. Even muslims and christians were also came and paid their respects. Sri Lalithananda Saraswathi Swamy used to perform yogas and also assisted in performing Kumbabishekam to the local Subramaniasamy Hill temple and arranged for poojas and festivals in the said temple. To cater the needs of the devotees, Swamy thought https://hcservices.ecourts.gov.in/hcservices/ it fit to construct a pucca premises. Accordingly in 1941, a building was put up in an extent of 5 acres 36 cents in R.S.No.4/1 with a well and garden from out of the funds collected from the followers of the swamiji. In the said Ashramam, Swamiji began to reside and received his devotees and rendered service to them. On 24.11.1951, the Swamiji attained Mahasamadhi and his followers and worshippers buried the body in the above premises and constructed a Samadhi building. A lingam was brought from the river Narmada and installed in His memory and daily poojas are performed to the Samadhi. On the Samiji's Mukthi day viz., on pusala Ekathasi day in the month of Karthigai Guru Pooja is performed on a grand scale followed by Mandalabishekam , the 45th day poor feeding is also done on these days. The Vigrahams of Sri Subramaniar, Sri Vinayagar, Sri Amman etc worshipped by Swamiji were also placed by the side of the Samadhi. The institution is not a temple within the meaning of Section 6(17) of Hindu Religious and Charitable Endowment Act (hereinafter referred to " Act"). The samadhi has not been dedicated for public worship nor the public has endowed any properties for the institution. The devotees of the Swamiji have formed themselves as a Baktha Samajam which has since been registered as a society under the Societies Registration Act. The devotees are not exclusively Hindus. Only the devotees worship at the samadhi and participate in the Guru Pooja functions. The public do not worship or participate in these celebrations as of right. There is no Gopuram nor Sethampam nor Beedam nor any festival in the premises which are necessary for a temple. In addition to the Samadhi premises with an extent of 5 acres 35 cents , the Samajam has purchased one acre seventy seven cents of dry land in 1964 from out of its funds. At present the land is a barren one and is without any cultivation. The plaintiff's samajam has been registered society and maintaining the proper accounts regarding the income and expenses. There is no interference in the management of the samadhi either by any private person or by the authorities of H.R.&C.E. Department. On 1.5.1988, the plaintiffs are worried to hear rumours of intended interference by the defendants into the affairs of the plaintiff samajam. The defendants fully aware that the suit Samadhi is not a religious institution coming within the definition given in the Act. As the plaintiff apprehends unilateral action on the part of the authorities, it has become necessary to file the suit for declaration that the suit Samajam is a private Institution and that it does not come under the Tamil Nadu Act 22 of 1959 and grant a perpetual injunction restraining the defendants from interfering in any manner with the management of the plaintiff of the same and for costs. 3. D1 and D3 have adopted the written statement filed by the second defendant which runs as follows: The suit is not maintainable. The averment that the devotees of Shri Lalithananada Saraswathi swamy and the worshippers of the suit institution are not only Hindus but also Muslims and Christians. Except, the Hindus , no member of other community has ever visited or worshipped in the suit institution. The performance of the daily poojas and other festivals in the suit institution and the participation of the public in the poojas and festivals established that the suit institution is a religious institution under Section 63 (a) of the Act. The structure and the appearance of the institution shows that it is a public temple. The fact that the property where https://hcservices.ecourts.gov.in/hcservices/ the suit institution stands has been described as "Anathinam" conclusively establishes that the suit institution is a public temple and it is not vested in a particular community or members of the society. The idols installed in the suit institution were meant for public worship and the public worship the idols eversince then. It is not true to say that the suit institution is not a temple and has not been dedicated to the public. It is further denied that the idols are placed adjacent to the samadhi and in the memory of the Swamiji. There is a Nandhi and Balibeedam in front of the idols and the existence of the same conclusively proves that the suit institution is a public temple. The plaintiff samajam has purchased one acre 75 cents of dry lands in 1964 but not out of the funds of its own. D1 and D2 considered the contention put forth by the plaintiff and have rejected the same holding that the suit institution is a public temple. The suit is bad for want of notice under Section 80 of C.P.C. The suit is barred under law. Hence the suit is liable to be dismissed. 4. On the above pleadings, the learned trial Judge has framed as many as three issues for trial. The Secretary of the plaintiff Samajam was examined as P.W.1 and exhibited Exs A1 to A9. On the side of the defendants, the Inspector of H.R.& C.E Department was examined as D.W.1. But no exhibit was marked on the side of the defendants. After careful consideration of oral and documentary evidence on both sides and after giving due deliberation to the submissions made by the learned counsel for plaintiff as well as the learned counsel for defendants, the learned trial Judge has held that the plaintiff is entitled to the relief asked for in the plaint and accordingly decreed the suit without costs which necessitated the H.R.& C.E.Department to prefer this appeal. 5. I have heard the learned Special Government Pleader appearing for the H.R.& C.E.Department and the learned Senior Counsel appearing for the respondent and considered their respective submissions. 6. The points for determination in this appeal are 1) Whether the suit samajam is a public temple or a private temple? 2) Whether the plaintiff is entitled to perpectual injunction as prayed for? 3) Whether the Decree and Judgment of the trial Judge in O.S.No.163 of 1988 on the file of Subordinate Judge, Tindivanam is liable to be set aside for the reasons stated in the memorandum of appeal? 7.Point No.1: The learned counsel appearing for the plaintiff/respondent would contend that as per the evidence of P.W.1, the Secretary of Sri Lalithananada Saraswathi Baktha Samajam, the same is situate at the foot of Pasumalai Hills and the same was started by one Sri Lalithananda Saraswathi Swamy in the year 1941 and he died on 24.11.1951 in the same place and his mortal remains were buried within the precincts of the Samajam and that while he was alive many devotees used to visit the samajam including the Hindus, Muslims and Christians and after his death the Samajam is being looked after by https://hcservices.ecourts.gov.in/hcservices/ the devotees themselves by appointing a Secretary for the Samajam and every day poojas have been performed from out of the money offered by the devotees and that, near his graveyard the idols which were worshipped by Swamji were placed and poojas are being performed for those idols and apart from this, there is no tower, or temple or Dwajasthambam or Balibeedam in the samajam and there is no hundials are also placed there. P.W.1 in his evidence would depose that the devotees alone used to contribute money to meet the expenses for conducting poojas and no amount was collected from the public and that the plaintiff's samajam is not being conducted by the Hindus alone. The people belonging to the other religion also used to contribute amount for conducting poojas and yearly festivals for which Exs A1 to A6 invitations were printed. 7a) The learned counsel appearing for the respondent relying on a decision reported in The Commissioner,H.R.and C.E.(Admn) Department,Madras-v- Sri Andarvillai Mutharamman Temple, Eraniel(1999 (1) M.L.J.3) would contend that since there is no gopuram, kodimaram, vimanam, dwajasthambam, hundial or moorthis within the samajam, the samadhi of Sri Lalithananada Saraswathi Swamy cannot be construed as a public Temple. The short facts of the said ratio is that the plaintiff has filed a suit for declaration that it is a private temple belonging to the Chekkala Samudayam. The trial Court has decreed the suit and an appeal was preferred by the H.R.& C.E. Department before this Court. The learned Single Judge of this Court also concurred with the findings of the learned trial Judge had dismissed the appeal against which the Letters Patent Appeal was preferred before a Division Bench of this Court. The relevant observation of the Division Bench runs as follows: " In order to understand whether a particular temple is a private one or a public one , it is proper to bear in mind some of the provisions of the Act, particularly which deal about the religious endowments and institutions . Sub Clause(16) of Sec.6 of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959 defines 'religious charity' as follows: " 16) religious charity means a public charity associated with a Hindu festival or observance of a religious character, whether it be connected with a math or temple or not". . . . . . . . . . Sub Clause (18) of Sec.6 of the Act defines 'religious institution' as follows: "18) religious institution means a math, temple or specific endowment and includes- (i) a samadhi or brindhavan ; or (ii) any other institution established or maintained for a religious purpose Explanation: For the purpose of this clause- (1) "Samadhi" means a place where the mortal remains of a guru, sadhu or saint is interned and used as a place of public religious worship; (2) "brindhavan" means a place established or maintained in memory of a guru, sadhu or saint and used as a place of public religious worship, but does not include samadhi" While dealing with the moot point whether the said temple is a public temple or a private temple, the learned Bench of this Court has https://hcservices.ecourts.gov.in/hcservices/ observed that admittedly, the temple has no'gopuram' or' prakaram','hundial'or'moorthis' which would be taken out in procession during festivals It is also an admitted fact that the presence of 'gopuram'or 'prakaram'hundial' or 'moorthis' is necessary to reach the conclusion whether the particular temple is a public temple or a private temple. In this case, the material on records shows that there was no 'gopuram' or' prakaram' and there was no'hundial' or 'moorthis' which would be taken out in procession during festivals , to hold that the temple is a public temple. In the case on hand also, there is absolutely no material placed before the trial court to show that the plaintiff samajam has a gopuram, dwajasthambam, balibeedam, prakaram or hundial. Under such circumstances, it cannot be said that the temple is a public temple. The learned counsel appearing for the respondent would go a further step and state that even if the publics are allowed to worship the samadhi or temple that itself alone cannot derive as to a conclusion that it is a public temple because the consonance of Hindu sentiments and practice is not to turn away worshippers even in private temple. For this proposition of law,the learned counsel for the respondent would rely on a decision reported in Soundharathammal-v- The Tiruchirapallai Mavattam mahasuruli Alaya Bakthargal madya sanagam by its President Balamuthu Thangam Pillai (1977 I M.L.J.125). The suit relates to the performance of the annual gurupooja and customery offerings of Sri Suruli Andavar at Vadugapatti in Kulathur Village. Admittedly in that case, H.R.& C.E.Department is not a party. The ratio decidenti relevant for the case on hand runs as follows: "The second argument of Mr.Krishnamurthi, learned counsel for the respondent, was that, in any event, the institution was no longer a mere tomb or samadhi; but had become a temple because a Vinayakar temple on one side and a Vel of Lord Subramania on another side had been consecrated by the devotees. The further argument is that the samadhi as well as the temple and Vel had been put up with the aid of funds donated by the devotees of Sri Suruliandavar and therefore, the institution has become a temple and was no longer a samadhi. Even this contention, I am afraid, cannot merit acceptance. From the evidence it is seen that the main or major attraction still continues to be the samadhi of Sri Suruliandavar and not the Vinayakar temple or the Vel of Lord Subramania subsequently added thereto. As such, the Vinayakar Temple and the Vel can only be considered as adjuncts to the samadhi, and not as features which have transformed the place from a tomb or a samadhi into a temple. A some what similar question as the one on hand had to be considered by a Division bench of this Court which decided Veluswami Gounder.v.Dhandapani. The Bench held that a temple built at or around the site of a samadhi can only be considered an adjunct of the samadhi and not an independent object of bounty. In yet another case , vide B.M.Committee-v.H.P.E. Board, a situation very https://hcservices.ecourts.gov.in/hcservices/ similar to the one on hand arose for consideration. The institution that required consideration in that case had its origin in the tomb or samadhi of one Bodendra Swamigal, a holy man and a saint. To commemorate his memory as is not unusual, a matam was constructed round the samadhi in which pujas and religious observances were being done. Several big vigrahams or idols of Sri Gopalakrishna, Sri Rama, Lakshmana, Venugopala, and Anjaneya were installed in the matam and pictures of Sri Radhakrishna, Sri Panduranga and others were also hung and puja was done, not to the samadhi, but to the idols and pictures. On account of these features, the contention in that case was that the institution was a temple. The contention was rejected by Mack.J and the learned Judge held as follows: " I am not prepared to hold that the mere presence of some idols and the festivals, which have grown round the samadhi of Bodendraswami, inevitable in the case of all tombs of saints and great men in this country, would bring it within the definition of a temple". The same ratio in all four corners would apply to the present case also. Even though there are some of the idols near the samadhi of Sri Lalithananada Saraswathi Swami, the pooja had been performed not only to the idols but also to the Samadhi of Sri Lalithananada Saraswathi Swami and the fact that the devotees belonging to all the religion irrespective of all caste and creed have been allowed to offer their prayers in front of the samadhi of the said swamiji alone will not derive as to a conclusion that the plaintiff samadhi is a public temple, particulary in the absence of any temple gopuram, Dwajasthambam, balipeedam and prakaram and also the absence of hundial in the precincts of the samadhi. 8. The learned Special Government Pleader appearing for H.R.& C.E. Department Mr.M.R.Murugesan relying on a decision reported in Deoki Nandan-v- Murlidhar( 1956 Supreme Court 756) would contend that if there is an intention to dedicate the samajam to public then it should be considered as a public temple. The facts of the said ratio is one Sheo Ghulam, a pious Hindu and a resident of Sri Radhakrishnaji in the Bhadesia village in Sitapur District had Thakurdwara constructed during the year 1914-1916 and the idol of Shri Radhakrishnaji ceremoniously installed therein and its affairs till 1928 when he died without any issue. On March 6,1919, he had executed a Will whereby he bequeathed all his lands to the Takur. The testator had two wives one of whom Ram Kuar had predeceased him and the surviving widow, Raj Kuar, succeeded him as Mutawalli in terms of the Will and was in management till her death in 1933. Then the first defendant, who is the nephew of Sheo Ghulam, got into possession of the properties as manager of the endowment in accordance with the provisions of the Will. The appellant is a distant agnate of Sheo Ghulam, and on the allegation that the first defendant had been mismanaging the temple and denying the rights of the public therein, he moved the District Court of Sitapur for relief under the Religious https://hcservices.ecourts.gov.in/hcservices/ and Charitable Endowment Act XIV of 1920, but the Court declined to interfere on the ground that the endowment was private. An application to the Advocate- General for sanction to institute a suit under Section 92 of the Code of Civil Procedure was also refused for the same reason. The appellant then filed the suit, out of which the present appeal arises, for a declaration that the Thakurdwara is a public temple in which all the Hindus have a right to 'worship'. While deciding the issue whether the said Thakurdwara is a public one or a private one, the Honourabel Apex Court has held as follows: "The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers." Relying on the above said decision, the learned Special Government Pleader appearing for H.R.& C.E.Department would contend that the plaintiff samajam is a public temple. Admittedly the facts of the above said case will not be applicable to the present facts of the case because there was no dedication or right created under a Will by Shri Lalithananada Saraswathi swamji. Admittedly, in this case only after the said swamiji the devotees have buried in the precincts of the samajam and have also installed idols worshipped by him near by his samadhi and as I have already referred , there is no gopuram, Dwajasthambam, balipeedam or prakaram inside the samajam besides any hundials. Under such circumstances, it cannot be said that the plaintiff samadhi is a public temple. 8a) The learned Special Government Pleader appearing for H.R.& C.E. Department has placed his reliance on Sengoda Gounder(died) and others-v- Commissioner, Hindu Religious and Charitable Endowment Department(2003(2) M.L.J 729)and contended that the plaintiff has failed to prove that the samajam consists of only samadhi of deceased Shri Lalithananada Saraswathi Swami and hence would contend that the plaintiff samajam cannot be considered as a private temple. The facts of the said ratio is that the plaintiff/appellant had filed a suit for declaration that the suit property was only a samadhi and not a religious institution and for permanent injunction. The suit was dismissed and the appeal is against the Judgement and decree of the trial Court. According to the plaintiff, the suit property was called Malaikaruppaswami Temple and is a samadhi of the forefather of the plaintiff, namely Malaiswami; the said Malaisamy had spiritual powers and became a Yogi and he had been treating the diseases of the villagers; he was worshipping Munneswaram and Karupannaswami, he attained Samadhi and was burried at the foot of Bargur Hills and a samadhi was constructed; subsequently,; Bali Peetam' was constructed and images of Thavasi and Muni were constructed to guard his Tomb, https://hcservices.ecourts.gov.in/hcservices/ for identification purposes, it is called " Malaikaruppaswami Temple' and the samadhi was treated as a sacred place by offering regular Guru Pooja and therefore, the said samadhi is not a religious institution. While so, according to the plaintiff the Assistant Commissioner , Hindu Religious and Charitable Endowments Department appointed defendants 4 to 6 as Trustees for the suit samadhi, treating it as temple. According to Hindu Religious and Charitable Endowments Department/defendant, the matter has been concluded against the petitioner in an earlier proceedings initiated as early as in the year 1937 whereby the place was declared as a public temple and in subsequent civil proceedings between the parties in reference to this temple, it was treated as a public religious temple. According to them, the plaintiff has failed to prove that it is only a samadhi. They therefore prayed for dismissal of the suit. The ratio decidenti runs as follows: " As rightly pointed out by the learned counsel for the respondents, temple has been defined under the Tamil Nadu Hindu Religious and Charitable Endowments Act,1959, as ' a place, by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of , or used as a right by the Hindu community or any section thereof as a place of public religious worship'. The suit temple comes within the requirements of this definition. Admittedly, the temple is under the control of the Department from the year 1958 and the management of the plaintiff's son as the hereditary trustee was subjected to audit and report of the Department. The offerings and the Hundial income were submitted to inspection and audit of the Department and they were opened and the collections counted in the presence of the Auditors of the Department all these years. Besides, it is admitted that people offer tonsures in the temple and regular offerings are also made to the temple by the devotees like Pongal. The devotees were given Vibudhi, all of which are important ingredients to show that it is a public temple." But that is not the case herein. There is no material placed by the appellant to show that the suit temple has already been declared as a public temple under the Tamil Nadu Hindu Religious and Charitable Endowment Act 1959 and there is also no material placed before the trial Court to show that there was a hundial placed within the precincts of the plaintiff samadhi. There is absolutely no evidence on record to show that the characteristics which are required for a temple to be declared as a public temple are available in the suit samjam. Under such circumstances, it cannot be said that the plaintiff samajam is a public temple. 8b) What is a temple defined under Section 6(2)