IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.09.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.NO.51 of 2004 1.The Commissioner, H.R. & C.E. Administration Department, Uthamar Gandhi Salai, Chennai-34. 2.The Deputy Commissioner, H.R. & C.E. Administration Department, Kosapettai, Vellore. ...Appellants/Defendants 1to2 Vs. K.Kanagadurga Bai ...Respondent/Plaintiff Appeal Suit filed under Section 70(2) of the H.R. & C.E. Act 22 of 1959 against the Judgment and Decree dated 23.04.2003 made in O.S.No.195 of 1993 on the file of the Learned Subordinate Judge, Thirupathur, Vellore District. For Appellants : Mr. T.Chandrasekaran Special Government Pleader (HR&CE) For Respondent : No Appearance J U D G M E N T The Appellants/Defendants 1 and 2 have filed the present Appeal as against the Judgement and Decree dated 23.04.2003 in O.S.No.195 of 1993 passed by the Learned Subordinate Judge, Thirupathur. 2.The trial Court, viz, the Learned Subordinate Judge, Thirupathur, vellore District in the Judgment in O.S.No.195 of 1993 dated 23.04.2003 has among other things observed that 'in the suit the Samadhi has been built inside the suit temple and further, the suit temple has been subjected to partition and the suit temple has been construed to be a temple belonging to the Respondent/Plaintiff's https://hcservices.ecourts.gov.in/hcservices/ family as seen thereto. Furthermore, the trial Court has also come to the conclusion that for the suit temple the post of Hereditary Trustee comes through legal heirship hereditarily and the First Appellant/First Defendant has passed a contrary order in the Revision Petition and therefore his order is liable to be set aside and that apart, as per Section 6(11) of the TamilNadu Hindu Religious & Charitable Endowments Act, the Respondent/Plaintiff is serving as Trustee and accordingly granted the relief of declaration that the Respondent/Plaintiff is the Hereditary Trustee of the suit temple, but directed the parties to bear their own costs. 3.Before the trial Court, in the suit 1 to 4 Issues have been framed for adjudication. On the side of the Respondent/Plaintiff witnesses PW1 and PW2 have been examined and Ex.A.1 to Ex.A.14 have been marked. On the side of the Appellants/Defendants, DW1 has been examined and Ex.B.1 to Ex.B.8 have been marked. 4.The trial Court on an appreciation of oral and documentary evidence available on record has come to a definite conclusion that the Respondent/Plaintiff is entitled to the relief of declaration that she is the Hereditary Trustee of the Sri Palani Andavar Kovil in Valaiyampattu Village of Vaniyampadi Taluk, Vellore District and also set aside the order passed by the First Appellant/First Defendant in S.R.M.No.61/89, dated 02.01.1993. 5.Feeling aggrieved with the Judgment and Decree passed by the trial Court in O.S.No.195 of 1993 dated 23.04.2003, the Appellants/Defendants have projected this Appeal before this Court. 6.Now the point that arises for consideration is: "Whether the Respondent/Plaintiff is entitled to the relief of declaration that she is holding the office as Hereditary Trustee of Sri Palani Andavar Temple in Valaiyampattu Village of Vaniyampadi Taluk?." 7.The Contentions, Discussions and Findings on a Point: According to the Learned Special Government Pleader (H.R. & C.E. Department), the trial Court has decreed the suit in O.S.No.195 of 1993 passed on surmises and conjectures and when there is no documentary evidence to establish the case of the Respondent/Plaintiff that the office of Trusteeship is Hereditary. 8.It is the contention of the Learned Special Government Pleader (H.R. & C.E. Department) that the trial Court has wrong in holding that the suit property has been set apart for Samadhi and temple by relying on Ex.A.11 Partition Deed and Item No.3 was allotted to Kannaiyalal, the husband of the Respondent. https://hcservices.ecourts.gov.in/hcservices/ 9.Advancing his arguments, the Learned Special Government Pleader (H.R. & C.E. Department) for the Appellants submits that the trial Court has held that the office of Trusteeship is Hereditary based upon the oral evidence of PW1 and PW2 which is unsustainable in the eye of law. 10.Proceeding further, it is the contention of the Learned Special Government Pleader (H.R. & C.E. Department) that for claiming the hereditary right, there must be dedication of property to the temple by the ancestors of the Respondent/Plaintiff and there is evidence in the present case as to who founded the temple and indeed, the trial Court on presumption and imagination has relied on the oral testimony of PW1 and has come to the conclusion that the institution is a private one and the office of Trusteeship is a hereditary one. 11.The Learned Special Government Pleader (H.R. & C.E. Department) for the Appellants urges before this Court that the suit temple has been brought under the purview of H.R. & C.E. Board, as the 'Hundial/Money Box' was sealed by the Departmental Official of the H.R. & C.E. Board and the income from the Hundial collection being utilised for the day to day affairs of the temple. 12.The pith and substance of the contention of the Learned Special Government Pleader (H.R. & C.E. Department) is that the trial Court should have accepted the reasoning assigned by the First Appellant/First Defendant in S.M.R.No.61/89 wherein it has been held that the institution is a public one coming within the purview of Section 6(20) of the H.R. & C.E. Act and as a matter of fact, the Respondent/Plaintiff will not come under the definition of Section 6 (11) of the H.R. & C.E. Act. 13.Lastly, it is the submission of the Learned Special Government Pleader (H.R. & C.E. Department) that Ex.A.1 to Ex.A.10, Ex.A.12 to Ex.A.14 are of recent one and they are only documents after filing of the suit and this will not in help the Respondent/Plaintiff in any way to substantiate their case in regard to the character of the institution and the office of the Trusteeship as Hereditary one and that apart, the trial Court has not ascertained the ownership of the land on which Samadhi and idols have been founded and has come to the wrong conclusion in observing the temple and Samadhi are a private one. 14.In short, the contention of the Learned Special Government Pleader (H.R. & C.E. Department) is to the effect that the trial Court has not taken into account the material and factual aspects of the matter in a proper perspective which has resulted in miscarriage of justice and therefore prays for allowing the Appeal in the interest of Justice. https://hcservices.ecourts.gov.in/hcservices/ 15.In the present case, the evidence of PW1, PW2 and DW1 assumes significance considering the facts of the present case. 16.The evidence of PW1 (Respondent/Plaintiff) is to the effect that initially the suit temple land belongs to our father-in-law Narasinghalal and that the extent of temple land is approximately 20 cents and that she does not know the Survey Number. 17.It is the further evidence of PW1 (Respondent/Plaintiff) that her father-in-law died around 60 or 70 years ago and she is now 85 years old and after the death of her father-in-law, his body was buried in the suit property and in the place where her father-in- law's body was buried, a Madam like building was built and in that Mandapam, her husband went and performed the Pooja. Moreover, PW1 goes on to add in her evidence that near the place where her father- in-law buried her husband installed one Lingam and near the said Lingam, an idol of Dhandayuthapani was kept and a temple was built and near that idols of Ayyappan, Sathyanarayanan, Kaliamman were kept and separate temple was built and in the opposite Navagrakha temple was formed and for these temples, her husband has employed, a person for performing the Pooja and for this temple there is no separate property. 18.The evidence of PW1 is to the effect that inside the temple compound, there is Ranganathar Temple and all the Temples are situated within a compound and on the Eastern side of the Temple Madras to Calicut Road is situated and even outsiders will offer the offerings to the God and after the death of her husband 50 years ago thereafter for the temples Pooja have been performed by her son, who looked after the same and her son Balajilal died 20 years ago and after the death of her son, her son-in-law is performing the Poojas and looking after all the activities. 19.It is not out of place to this Court to point out that PW1 (Respondent/Plaintiff) in her evidence has deposed that her son-in- law is performing the Pooja and before that outsiders have been employed on a salary, who performed the Poojas and for doing the Pooja work, her son-in-law is being paid a salary of Rs.500/- per month and in the temple there is a Hundial and from the said offerings per year an income of Rs.5,000/- is collected and for the balance amount they put their own money. 20.According to PW1 (Respondent/Plaintiff), they are only conducting festival of Adikiruthikai which is conducted by her grandson and for the temple there is no income other than the income of the Hundial and they are not receiving money from the public, they were not collecting money from the general public and if they willingly offer any money they were accepted the same and the suit temple hereditarily belong to her family and the temple does not belong to the family and she is the Hereditary Trustee of the suit https://hcservices.ecourts.gov.in/hcservices/ temple and the Commissioner of H.R. & C.E. Board in his enquiry has also come to the conclusion that she is a Hereditary Trustee and later the Commissioner Suo motu has passed an order stating that the suit temple has a public temple and that it does not belong to her and against the said order she has filed a present suit claiming that the suit temple belongs to her. 21.PW1 (Respondent/Plaintiff) in her cross examination has clearly stated that for the conduct of Samadhi Pooja every year she has not filed the accounts and to a suggestion whether she is possessive expenditure details accounts for installing the idols. She has stated during the period elders have installed the idols and they only know about the same and she has not filed document to show that they are maintaining the suit temple and further her ancestors have not given any land to the temple. The evidence of PW1 in her cross examination is to the effect that the income from the Hundial offerings per month is Rs.5,000/- and they are managing the temple affairs by means of Hundial money and offering money and if those amounts are not sufficient then for maintaining the temple they used to put their own money for looking after the affairs of the temple. 22.In reexamination, PW1 has specifically stated that she has produced the relevant documents before the H.R. & C.E. Department enquiry to show that house, suit temple has been allotted to the share of her husband and that the temple accounts have been taken by the Inspector of H.R. & C.E. Department. 23.The evidence of PW2 (Temple Poojari) is to the effect that he is a Poojari for the past 20 years in Valaiyampattu for which he is paid a monthly salary of Rs.1,000/- and the temple Trustee Durga is paying the salary and she only gives the money for Pooja expenses amount to Rs.500/- per month and he is not paid the salary from the H.R. & C.E. Department. 24.Added further, PW2 in his evidence has stated that the suit temple is the Respondent/Plaintiff hereditary own temple and the Hundial money checked by the Trustee as well as the temple Inspector and daily for offering the Deeparathanai a sum of Rs.15/- is obtained and the money is being offered in the Deeparathanai plate, sometimes may not be thereof a particular day and the money offered in the Aradhana place will go to him and the Respondent/Plaintiff (PW1) is Aunt and he has given his daughter in marriage to the Respondent/Plaintiff's Son's son (Plaintiff's grandson). 25.The evidence of PW2 also is to the effect that for the temple compound whitewashing has been done every year during the month of Aadi and these expenses will have incurred by the Trustee and for payment of electricity and for payment of sanitary worker for whitewashing every year, receipts are not been filed. https://hcservices.ecourts.gov.in/hcservices/ 26.DW1 (the suit Inspector of the H.R. & C.E. Board in Vellore office) in his evidence has stated that the suit temple is situated in Poramboke land and the suit temple is not in Patta land belonging to the Respondent/Plaintiff and for the suit temple, the income is coming from the public offerings through Hundial and Ex.B.1 is the Chitta copy in respect of the temple land and the Respondent/Plaintiff is maintaining accounts in respect of how much income earned by the temple every year and the Respondent/Plaintiff is submitting the income accounts every year to the Hindu Religious Endowment Officials and Ex.B.3 is the income and expenditure scheme in respect of Fasli 1410 and as per Ex.B.3, the income of Rs.94,729.10 and the expenditure is Rs.86,451.10 and the account is submitted to the Vellore Assistant Commissioner through Vaniyampadi Circle Inspector. 27.DW1 (in his Chief examination) has deposed that the Respondent/Plaintiff is maintaining the suit temple only from the money received through the Hundial and the Respondent/Plaintiff is not maintaining the suit temple out of her own income and apart from the temple the family of the Respondent/Plaintiff has not executed any documents in respect of immovable properties and the Respondent/Plaintiff's son-in-law is conducting the money from the suit temple Hundial and he is looking after the income and expenditure accounts and maintaining the temple and since the Respondent/Plaintiff is collecting the money from the Hundial offered by the public and maintaining the same, the Respondent/Plaintiff is not entitled to claim the relief of declaration that she is a Hereditary Trustee of the suit temple. 28.DW1 (in his cross examination) has categorically stated that before the filing of the suit to show that the suit temple is a public temple, no document has been filed and he has also further stated that the Respondent/Plaintiff has been submitted the income and expenditure accounts in respect of the suit temple before the Joint Commissioner, for which the copies not been filed before the Court. 29.In the decision of Honourable Supreme Court Sambundamurthi Mudaliar v. State of Madras 1970 (1) SCC 4, it is held that 'the office of Trustee is in the nature of property'. 30.In Ranganatha Pillai v. Commissioner, H.R. & C.E. Board (1979) 2 MLJ Page 23, the meaning of 'Hereditary Trustee' has been explained. The onus of proving that it is a private temple is on a person who assets it. https://hcservices.ecourts.gov.in/hcservices/ 31.In the decision Natesa Achar v. Parasamaya Kolewnatha Madam, (1999) 2MLJ 585, it is held that 'where Poojas, Archanas, and Navarathiri festivals are conducted, such institutions would possess all the characteristics of the temple'. 32.A person can claim Hereditary Trusteeship based on evidence even after the appointment of Trustee as per decision P.K.Duraiswamy v. Commissioner, 2008 1 L.W. 945. 33.In K.Rajagopal Pillai v. Commissioner, H.R.&C.E., (1998) MLJ (Supp) 340, it is observed that 'the documents filed by the plaintiff show that the succession to the office of Trustee devolves by Hereditary right. The plaintiff and his predecessors continuously entrusted the Trusteeship of the temple in question. Merely because they were functioning as Trustees along with third parties as trustees that itself cannot disentitle but the plaintiff to claim the right of Hereditary Trusteeship'. 34.The title to the Hereditary Trustee can be acquired by prescription in the absence of any trustee against whom adverse possession can be claimed. 35.In Munusamy Chetty (died) and others v. commissioner, H.R. & C.E., (1993) 1 MLJ 183, it is held that 'there are three kinds of Hereditary Trustees as per the definition (a)A trustee, succession to whose office devolves by Hereditary right (b)A trustee, succession to whose office is regulated by usage (c)A trustee, succession to whose office is specifically provided for by the founder'. 36.Section 6(18) of the T.N. H.R.& C.E. Act, 1959 defines: "religious institution" means a math, temple or specific endowment; Notes.-Before substitution, it reads 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: https://hcservices.ecourts.gov.in/hcservices/ 37.In the decision Nanjappa Chettiar (Deceased) v. Kuppuswami Chettiar, (1985) 2 MLJ 154, it is held that 'persons who are entitled to succeed as Hereditary Trustee cannot be deprived of the rights by the predecessor's release or relinquishment'. 38.In the decision Commissioner, H.R. & C.E. v. Senthamarai Kannan (died) (2004) 2 L.W. 695, it is held that 'the affairs of the temple work have been managed by the contributions received from the public and that the office of Poojariship and Trusteeship are carried on by the same person and it is held that such a person falls within the definition of 'Hereditary Trustee'. ' 39.Ex.A.2 is the certified copy of the order dated 05.04.1988 passed in O.A.No.174/87 by the Deputy Commissioner of H.R. & C.E. Administration Department, Salem. A Perusal of the said order shows that an application under Section 63(b) of the TamilNadu Hindu Religious & Charitable Endowments Act, 1959 has been filed by the Respondent/Plaintiff wherein the Respondent/Plaintiff has sought a declaration to be the Hereditary Trustee of the temple. The Deputy Commissioner of H.R. & C.E. Administration Department, Salem by his order Ex.A.2 dated 05.04.1988 has among other things observed that 'Ex.A.1 is a certified copy of the Sale Deed dated 21.02.1878. It speaks about the property in which the temple is situated and also about Thiru.Narasinghalal whose name is given in the top of Genealogical tree furnished by the Respondent/Plaintiff and as per Ex.A.2 is a certified copy of Partition Deed dated 15.02.1930, the Chatram and the temple is the share of Thiru.Kannaiyalal whose name is mentioned in the second place in genealogical tree furnished by the Respondent/Plaintiff. 40.Besides the above, in Ex.A.2 order of the Deputy Commissioner of H.R. & C.E. Administration Department, Salem dated 05.04.1988, the Inspector of Thirupathur in his report has also stated that the temple was brought under the control of the department in the year 1984 and the temple owns no property and the administration of the property is looked after by the petitioner's family by their own money. He has further reported that no outsiders except the petitioner's family ever interfered in the management of the temple and in short passed on the oral and documentary evidence, the Deputy Commissioner of H.R. & C.E. Administration Department, Salem has come to the resultant conclusion that the Respondent/Plaintiff and her ancestors have been in continuous management of the temple for more than three generations extending over more than 75 years and the trusteeship had been devolved by hereditarily in the petitioner's family and accordingly held that the office of the trusteeship of the suit temple is hereditary and the petitioner has been held to be a person holding the office as hereditary trustees and consequently, allowed the petition. https://hcservices.ecourts.gov.in/hcservices/ 41.Ex.A.3 is the order dated 02.01.1993 passed by the First Appellant/First Defendant in Suo Motu Revision 61/81. In the said order, the order of the Deputy Commissioner of H.R. & C.E. Administration Department, Salem in O.A.No.174 of 1997, dated 05.04.1988, declaring the office of the trusteeship of the suit temple as Hereditary and it has been set aside under Section 60(2) of the Act and consequently, it has been held that the Respondent/Plaintiff is not entitled to the Hereditary Trustee of the suit temple. 42.Ex.A.6 is the order of the First Appellant/First Defendant passed in Suo Motu Revision 61/81, dated 02.01.1993 in and by which the First Appellant/First Defendant has inter-alia observed as follows: "In the evidence of PW1, it is stated that the temple was built by her husband Kanniahlal. No accounts forthcoming as to the construction of the temple by the husband of the petitioner as has been claimed by her. There is no deed of dedication for having endowed lands to the suit temple by the petitioner's ancestors. The land on which the temple in question stands is classified as temple poramboke. None of the documents produced by the petitioner speak about the management of the suit temple in the petitioner's family. From the above it is clear that the petitioner has miserably failed to prove the management of the suit temple in their family as has been laid down under Section 6(11) of the Act. It has not been proved beyond doubt that the management of the suit temple vested in the family of the petitioner hereditarily in an unbroken line of succession without any outside interference at lease for three generations. 7.In the above circumstances I have no hesitation to come to the conclusion that the petitioner has no case to project under Section 63(b) of the Act. 8.In the result, I set aside the order of the Deputy Commissioner of H.R. & C.E. Administration Department, Salem in O.A.No.174/87, dated 05.04.1988 declaring the office of trusteeship of the suit temple as hereditary and ultimately it is held that the petitioner is not entitled to the relief p\rayed for under Section 63(b) of the Act." 43.Ex.B.4 is the report submitted by the Inspector of H.R. & C.E. Board, Vaniyampadi of Vellore District, wherein it is mentioned that a sum of Rs.79,464/- has been determined as grant (cjtpj;bjhif) for the Fasli 1410. https://hcservices.ecourts.gov.in/hcservices/ 44.Ex.B.5 is the order passed by the Assistant Commissioner, H.R. & C.E. Board, Vellore, wherein for the Fasli 1411, a sum of Rs.88,729/- has been mentioned as the amount that can be fixed as 'cjtpj;bjhif'. 45.Ex.B.8 is the order passed by the Assistant Commissioner, H.R. & C.E. Board, Vellore, wherein for the Fasli 1412, a sum of Rs.79,329/- has been determined as cjtpj;bjhif. 46.One cannot ignore a very essential fact that the acid test for determining as to whether the temple is a public one or a private one is a dedication to the public and the right recognized in public to offer worship at a particular temple as a matter of right and routine. This issue has to be determined by a Court of law passed on the facts and circumstances of each case and it cannot be determined by means of any assumptions, presumptions or surmises and even by means of conjectures as the case may be. 47.As far as the present case is concerned, it is not the case of the Appellants/Defendants that the Respondent/Plaintiff has made improvement in regard to the temple by means of contribution made by the members of the public or us any Section thereof. As a matter of fact, the Samadhi has been built inside the said temple in the present case also and furthermore, the suit temple has been subjected a partition and the suit temple has been construed a public one belonging to the Respondent/Plaintiff's family. The second factor to be taken note of by a Court of Law is that there is no dedication to the public as far as the suit temple is concerned. Merely because the members of the general public or Section there of are allowed to worship in a temple one cannot immediately jump to the conclusion that the temple is a public one. 48.In the instant case, there is overwhelming evidence on the side of the Respondent/Plaintiff namely PW1 and PW2 that in the suit temple the Hereditary Trusteeship has devolved on the basis of Heirship and it is candidly clear that the Deputy Commissioner of H.R. & C.E. Administration Department, Salem, vide as per his order Ex.A.2 dated 05.04.1988 in O.A.No.174 of 1997 has clearly placed reliance on Ex.A.1, Certified copy of the Sale