IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.06.2009 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S. No.512 of 2002 1. The Commissioner Hindu Religious and Charitable Endowments Department Madras 2. The Deputy Commissioner H.R. & C.E. Department Trichirapalli Now having office at Mayiladuthurai Thanjavur District 3. The Deputy Commissioner HR &CE Department Cuddalore 4. The Inspector HR & CE Department Tindivanam .. Appellants/D1 to D4 -vs- Ramalinga Reddiar ..Respondent/plaintiff This appeal is filed under Section 70(2) of HR & CE Act 22 of 1959 against the Judgment and decree passed in O.S.No.39/93 dated 6.6.2001 on the file of the learned Subordinate Judge, Tindivanam. For Appellant: Mr.M.R.Murugesan Spl. Govt. Pleader (HR & CE) For Respondent: Mr.V.Raghavachari JUDGMENT The appellants/D1 to D4 have filed this appeal as against the Judgment and decree dated 6.6.2001 made in O.S.No.39/93 on the file of the learned Principal Subordinate Judge, Tindivanam. https://hcservices.ecourts.gov.in/hcservices/ 2. The germane facts of the case are set out below: The property mentioned in the plaint schedule is a Samathi Private Mutt and Institution and the first plaintiff is the Managing the same and maintaining the Samathi in her own rights as per the wishes of the founder. The founder of the Mutt and Institution is one Batcha Reddiar. The first plaintiff is the wife of Batcha Reddiar. For the said Batcha Reddiar and for the first plaintiff, they have no issues. Since the said Batcha Reddiar has no issues, he decided to erect a Samathi in the plaint mentioned property. Accordingly, he purchased an extent of 0.27 cents in S.No.51/7 from one Kanoovu Ammal on 26.3.1921 for a valuable consideration as per sale deed. Since he wanted to have a permanent Samathi to be remembered and worshipped by its community people and relatives, he purchased the above said property which lies on the northern side of the suit village. Further as per the custom prevailing in a village, Samathi should always be erected at the out skrits of the village and on the northern side. Therefore, the said property has been purchased by Batcha Reddiar with an intention of erecting a Samathi for him. a) The said Batcha Reddiar as per the customs followed by his community in order to make it divine and to give sanctity has installed a Vinayagar Idol, then called as "Sundara Vinayagar wtihout any superstucture. In an aspicious day of Karthigai 1921, he put up a superstructure over the idol and installed another idol of Dhandayudapani made up of granite stone. For the purpose of maintaining his Samathi by the descendants in the future, he purchased the properties for Samathi and Mutt created by him. Notwithstanding the fact that the Mutt and Samathi are described as temple in the instruments through which properties were purchased. Out of Batcha Reddiar's own fund, the Mutt and the proposed Samathi was never made public and it was always managed and maintained only by Batcha Reddiar as his private property. b) Neither the third parties nor any villagers were allowed to worship the Vinayagar and Dhandayudapani idols as a matter of right. More over, in all the documents and instruments, the said Batcha Reddiar described himself as 'Dharmakartha' of his Mutt and Trustee and from the recitals of the said documents, it can be inferred that Batcha Reddiar wanted to create an irrovocable Mutt in which neither of his legal heirs should claim the independent right and that is why he described himself as a 'Manager'. He died on 28.12.1948 without any issues leaving the first plaintiff as his sole heir. As per the wishes of Batcha Reddiar, the first plaintiff has taken up the management of the Mutt and endowment created by her husband, buried her husband Batcha Reddiar on the south western of the built up area and that the first plaintiff erected a Samathi with inscriptions on stone plaque as wished and directed by Batcha https://hcservices.ecourts.gov.in/hcservices/ Reddiar. The first plaintiff has installed a Lingam idol over the Samathi, since the deceased her husband Batcha Reddiar has been a staunch Shivatte as incoronation of Batcha Reddiar's soul. The first plaintiff and her community people and the relatives believed that the soul of Batcha Reddiar is incoronated with Linga and that is why the Linga was installed as per Hindu Ahamas and Sastras. c) The first plaintiff, after the demise of her husband Batcha Reddiar wanted to create Samathi as a permanent structure put up pucca superstructure and constructed a pucca compound wall surrounding the Samathi and over the idols. The first plaintiff has contributed her savings and profits derived from the endowed property for the erection of the said pucca structure . The first plaintiff has been and is maintaining the Samathi and idols without any intervention of the third parties in the village. She has been performing Khala Pujas and putting on lights to the samathi and to the idols erected by her husband in reverence and remembering of her husband in soul. No third parties are allowed to participate in this regard. d) In the suit village, majority of the caste Hindus belong to Reddiar Community and most of them are in a way related to the first plaintiff and Batcha Reddiar. Besides Reddiar Community, there are people in stray numbers in Yadava's Community and except the first plaintiff and her relatives, without her permission and consent were allowed to enter into the first item of the suit property. In the year 1972, the first plaintiff put up a Mandabam on the Eastern side of the Samathi and idols out of her own fund. Besides, sinking a well in the first item of the suit property,thereupon, she built another Mandabam on the southern side of the suit property in the year 1982, out of the income derived from the endowed properties. She has also installed Navagrahas in the said property, since she is also a staunch Shivatte. The lock and key for the said properties is always kept by her. The first plaintiff has appointed a person to perform Poojas and naivethyams as and when desired by her and the said person shall open the said property only with her permission to carry out the said functions. Thus, the first item of the suit property has been treated and managed by Batcha Reddiar and the first plaintiff as their private property and none else than the said persons shall enter into the said property and worship the idols installed as a matter of right. e) Added further, the abovesaid property has never been treated as a temple. As per the Hindu Ahamas, a Hindu temple which is being treated as a public temple will have a Thuvajasthambam, Balibeedom, Vaganas, Urchavars and Brahmordhavam on a fixed day of an year, when the urchavamoorthy is taken around the Mada streets of the temple. In the first item of the suit property, there are no Thuvajasthambam, Balibeedam, Vaganas, Urchavars and there is no https://hcservices.ecourts.gov.in/hcservices/ Brahmorchavam. Since the said property is a Samadhi and private institution raised by the first plaintiff and her husband, it does not have the said things. If the said property is a temple , it should have been built in the middle of the village so as to have mada veethis,but the said property was built at the out skirts of the village. There is no hundi installed in the said property and at no point of time, contribution from public were received or accepted for its maintenance and management. f) Batcha Reddiar even though appointed a manager, he wanted a supervision over the manager and in anxiety to see the endowment and poojas are not neglected by the Manager and the Manager is made responsible to panchayatars. The Panchayatars have not been named and not given any right of taking over the management in case of default nor have been given the right of entry to perform poojas. To prevent third parties from encroaching the properties, Batcha Reddiar wanted somebody to see that it is prevented by his community people and relatives and hence he mentioned panchayatars in the deeds. There is no single occasion till today for the panchayatars to intervene since the first plaintiff is carrying out the kattalai as directed by her husband and in the absence of the Panchayatars exercising their power. The suit properties should be constructed to be Samathi, private Mutt and Institution. g) The second appellant/second defendant has taken a view that the suit first Item is a public temple which comes within the ambit of HR & CE Act. Therefore, the first plaintiff has been obliged to file an application to declare the suit properties as Samathi and Mutt in O.A.31 of 1979. However, the second appellant/second defendant passed an order erroneously hold that the suit propeprty is a public temple on 24.11.1980. The first plaintiff has filed an appeal in A.P.No.65 of 1981 as per Section 69(1) of the HR & CE Act. Aggrieved against the said order passed by the second appellant/second defendant. However, the first appellant/first defendant has followed the order passed by the second appellant/second defendant and confirming the order dated 7.12.1987 passed in A.P.No.65 of 1981. h)Pending suit, the first plaintiff has expired on 7.4.1992. By virtue of the Will executed by the deceased first plaintiff in favour of the second plaintiff, the second plaintiff is entitled to the suit properties and except the second plaintiff, there are no other heirs to inherit the estate of the first plaintiff. Inasmuch as the appellants,therefore, the 4th appellant has made an endeavour to take possession of the plaint schedule properties, the plaintiffs have filed the suit seeking the relief of declaration that the Institution consisting of Samathi Mutt and temple and the schedule mentioned properties are not religious institution coming within the ambit of Tamil Nadu Hindu Religious and https://hcservices.ecourts.gov.in/hcservices/ Charitable Endowment Act and for the relief that the Institution is a private one as per Section 63(a) of the T.N.HR & CE Act and for permanent injunction restraining the appellants/defendants , their agents and their men from interfering with the possession and management of the suit properties by the plaintiffs. 3. The first appellant/first defendant has filed a writtten statement adopted by the defendants 2 to 4 inter alia taking the denial pleas that (1) the property temple in the schedule is a private mutt and Institution(2) that the first plaintiff managing the same and maintaining the same in her own right and according to the wishes of the founder(3) that Batcha Reddiar is the founder of the Institution and that he wanted to erect his Samathi in the suit properties etc., 3a) The case of the appellants is that Sundaravinayagar temple is a public temple and it is in existence even before the year 1921 and Batcha Reddiar and his wife/first plaintiff admitted the existence of Sundaravinayagar Temple and that he acted only as a trustee of the temple and endowed some properties to the temple and provided for the performance of the "Anna Naivaithiam", and that he empowered the panchayatars to question the trustees on their failure, if any in the performance of Anna Naivaithiam and supervise the same. Further Batcha Reddiar posed himself and acted as the trustee of the temple. Therefore, the said Batcha Reddiar and the first plaintiff claiming under him are estopped to contend that the suit institution is Samathi and not a temple. 3b)Moreover, the further pleas of the appellants are that Batcha Reddiar never claimed that the suit property was intended for his Samathi or that it is his private temple, that he He never intended to purchase any property for the purpose of his Samadhi. Since the Institution is a public temple, he endowed the properties for the upkeep and maintenance of the temple and also for the performance of the "Pal Kavadi" and "Mahotchavam" in the month of Thai. The "Pal Kavadi" and Mahotchavam can be performed by the general public only and they took part in the festival as a matter of right and that neither Batcha Reddiar nor the first plaintiff everclaimed that the Institution is a Samadhi or a Mutt and that it is their private property and also that the documents under which Batcha Reddiar purchased the properties do not create an irrecoverable Mutt and that the first plaintiff buried her husband in the south-west corner of the built up area and erected a Samadhi with inscriptions, as directed by Batcha Reddiar and Batcha Reddiar and the first plaintiff belong to Caste of Hindu Siva Worshipper and therefore, the installation of the idol of Linga in the temple as per the Hindu Ahamas and Sastras have been done and that the suit institution is a public temple as defined under Section 6(20) of the HR & CE Act and hence it comes under the purview of the said Act. https://hcservices.ecourts.gov.in/hcservices/ Continuing further the absence of the structures like" Dhwajasthambam" "Vahanas" "urchavars" "Bromothsam" etc will not necessarily lead to the conclusion that the suit institution is a private Mutt or temple and the temple need not necessarily have"Mada Veedhis" around it. 3c) Besides the above , the appellants contend that Batcha Reddiar never claimed that the office of the trusteeship lies with his family or heirs and that he claimed himself as the present trustee " Tharkala Trustee" which means that the trusteeship may lie with any one in future and that the Batcha Reddiar wanted panchayatars to supervise the manager as he wanted to prevent the third parties from encroaching upon the properties is denied and that the first appellant and the second appellant have correctly held that the suit Institution is a public temple falling under Section 6(20) of the T.N.HR & CE Act and not a private mutt or samadhi and that the Will alleged to have been executed by the first plaintiff is denied, when the plaintiff has no right over the temple. 4. On the basis of the aforesaid pleadings, the trial Court has framed in all three issues. On the side of the respondent/plaintiff's witnesses, P.W.1 to P.W.4 were examined and Exs A1 to A4 were marked and on the side of the appellants/defendants, D.W.1 was examined and Exs B1 to B10 were marked and Exs C1 to C3 were marked. 5.The trial Court, on an appreciation of the oral and documentary evidence and taking note of the available material evidence on record, and after analysing the same in depth has come to a conclusion that the suit property and the temple, Samathi and Mutt are Institutions not coming under the control of HR & CE Board and that they are Institutions which do not come under Section 33(a) of the said Act belonging to the separate individuals and accordingly passed a decree besides granting the relief of permanent injunction. 6.Heard both the learned counsel appearing for the parties and this Court has noticed their respective contentions. 7.The point that arise for determination is "Whether the respondents/plaintiffs are entitled to the declatory relief of claiming that Samadhi , Mutt , temple and the suit schedule mentioned properties are not religious institutions as per HR & CE Act and that the suit institutions are a private one as enjoined under Section 33(a) of HR & CE Act and for the relief of permanent injunction?" https://hcservices.ecourts.gov.in/hcservices/ 8. Contentions, Discussions and Finding : Mr.M.R.Murugesan, the learned Special Government Plealder(H.R.& C.E) urges before this Court that the trial Court ought to have held that the suit temple is a public religious temple coming within the purview of the definition under Section 6(20) of the HR & CE Act and further the suit temple and its properties are being usued as a place of public religious worship dedicated to or for the benefit of or use of right by the Hindu community and these aspects have not been looked into by the trial Court in a proper perspective and further the trial Court has not appreciated Exs D1 to D10 documents to prove that the dedication and management of the temple and that Ex D6 document will show that Batcha Reddiar has been shown as a person in charge management of the temple and in an important fact is that the temple has been founded by the villagers even prior to the year 1921 out of the public funds and moreover by placing reliance of Exs P1 to P4 , the trial Court has come to the conclusion that the temple is a private one and that trial Court has failed to see the idols,Navagraha has come into existence for worshiping performing daily poojas etc without any let or hindrance and alll these factors willl go to point out that the temple in issue is a public one and that the public are not worshiping samadhi primiarily but worshiping incidentally and therefore primarily worship is in respect of idols only and the samadhi in the present case contains all the indication of temple and the temple has evolved from the samadhi and in any event, the entire temple precinct cannot be called as Samadhi and therefore prays for allowing the appeal in the interest of justice. 9.The learned Special Government Pleader(HR & CE) appearing for the appellants submits that the plaintiffs are converting the temple into samadhi and that the samadhi has been constructed by the first plaintiff viz., the wife of Batcha Reddiar and that the Vinayagar temple is an ancient one and it has been constructed before the year 1920 and the second plaintiff is the sister's son of the first plaintiff and in Exs D1 to D10 documents, Batcha Reddiar has been described as temporary manager and that in Ex D3 gift deed dated 6.1.1921 in favour of Vinayagar temple executed by the said Batcha Reddiar, he has to answer the panchayatars in case of any of the violation of conditions mentioned therein anf if the events are not performed then the temporary manager can be questioned by the panchayatars and therefore it is quite evident that Batcha Reddiar has given control to the panchayatars and in paragraph 5 of the plaint Batcha Reddiar has described himself as Dharmakartha but whereas Exs D2 to D10 referring as temporary manager and that managing affairs of the temple is diferent from trusteeship and further it is averred in the plaint that Dharmakartha is an English parlance refers to the word"manager and Trustee and that he has got list annexed to the temple. https://hcservices.ecourts.gov.in/hcservices/ 10. Added further the learned counsel for the appellants submits that the deceased Batcha Reddiar is not the founder of the temple and that beneficiaries when they are in large number are ascertained one and Batcha Reddiar has no issues and therefore he has built the temple and his family is only ascertained the beneficiary and that how the samadhi will be before entering the village and that no accounts and documents have been produced to establish that the amounts have been spent for the construction of the temple or the monies have been drawn from the Bank and Naivethyam performed only in a temple and not in a samadhi and out of 10 acres of land dedicated to the temple, the events being performed and they are managing affairs of the temple of their own and the plaintiffs converted the temple as samadhi and admittedly there is no hundi and that noway HR & CE Act say what is the private temple and Section 6(20) of the said Act only speaks of "temple" meaning a place by whatever designation known, usued as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by, the Hindu Community or of any Section thereof, as a place of public religious worship and therefore the suit temple is a public one. 11.The pith and substance of the argument advanced by the appellants side is that samadhi,mutt, they are not a public temple and that the Mutt is a place where disciple will be given the teaching and free lodging and boarding for them will be provided and that the Vinayagar temple is a public temple and in a samadhi cannot have a Kalasa Pooja with a permission of the first plaintiff and that the evidence of P.W.4 is to the effect that he is not aware in which year temple has been built but the temple is called as"Pillaiyar temple" and that he has deposed thaht after obtaining the permission , they will worship the deity of the temple and it is the specific evidence of P.W.2 thaht they will call the suit temple as samadhi temple and it is thought as samadhi. It is the evidence of P.W.3 that the plaintiffs will allow the people to the temple whom, he likes and specifically in Ex P4, it is mentioned as "family temple" and that the samadhi cannot have a Kumbhabishekam. 12.The learned counsel appearing for the appellants cites the decision reported in Pichai alias Chockalingam-v- The Commissioner for Hindu Religious and Charitable Endowments (Administration Department)(1971 MLJ 166) wherein it is held as follows: "The definition of"temple" contemplates following conditions, namely "temple" means" place by whatever designation known used as a place of public religious worship(1) and dedicated to the Hindu community or any section thereof as a place of public religious worship; or (2) and dedicated for the benefit of the Hindu Community or any Section thereof as a place of public religious worship or(3) and used as of right by the Hindu community or any section thereof as a place of https://hcservices.ecourts.gov.in/hcservices/ public religious worship". He also presses into service, the decision reported in V.Mahadeva Gurukkal-v- Commissioner for the Board of Hindu Religious Endowments, Madras(1956 Madras 522(AIR V 43 C 166 Sept)wherein it is laid down as follows: "A temple which began as a private temple may, in course of time, become a public temple by express or implied dedication, the latter being proved by use of the temple by the Hindu Public as of right and without taking any permission from anyone. Under S.9(12) no express dedication on a definite date need be proved, if it is proved beyond all doubt that the temple has been used as of right by the Hindu Public as a place of religious worship without taking anybodoy's permission, leading to an irresistible inference of implied dedication". 13. Yet another decision reported in Subbiiah Pillai-v- The Commissioner ,HR & CE (ADM) Department, Madras(77 L.W.94) relied on the side of the appellants whereby and whereunder it is observed as follows: "A temple was proved to have been founded by the plaintiff's family who had settled properties for its use and benefit, there was no evidence on record to show that any member of the public either offoered moneys or endowed any property to the temple. The entire properties belonging to the temple were in the possession of the plaintiff's family. No member of the public either interfered with their managements and possession of the properties or called upon them to render any account in regard to the income of the properties. There was no cogent or clear evidence to prove that the members of the public as a matter of right were allowed to worship in the temple. The temple was situate not only adjacent to the plaintiffs' house, but the plaintiffs have acess and entrance to the temple directly from their house, and the gate will be always locked except when poojas arer performed by the archakar. Held: It is not a public temple. The ordinary Hindu Sentiment is not to prohibit any worshipper from worshipping in a temple, even though the temple was intended mainly for the worship of the members of the family of the founder. Merely because the temple is siutated https://hcservices.ecourts.gov.in/hcservices/ on a natham, it cannot be called as a public temple". The learned counsel appearing for the appellants citing the Judgment of this Court in A.S.No.825 of 1995 dated 26.6.2008 wherein it is held that the