IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.4.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN S.A.Nos.260 and 261 of 1996 Shri Thillaiamman Devasthanam represented by its Executive Officer, having office at the temple premises, Chidambaram Town and Munsif .. Appellant in both the Second Appeals vs. 1.P.Thillainayagam 2.P.Thillainatarajan both sons of Ponnambalam Pillai, 26/27, Thillaiamman Koil Street, Chidambaram Town and Munsif .. Respondents in both the Second Appeals Common Prayer in S.A.Nos.260 and 261 of 1996: The Second Appeals have been filed against the common judgment and decree, dated 11.8.1995, made in A.S.Nos.39 and 40 of 1995, on the file of the District Court, South Arcot Vallalar District, Cuddalore, confirming the common judgment and decree, dated 31.8.1994, on the file of the Sub-Court, Chidambram, made in O.S.No.94 of 1989 and O.S.No.30 of 1990. For Appellant : Mr.R.Swaminathan For respondents : Mr.R.Thiagarajan for Mr.Srinath Sridevan C O M M O N J U D G E M E N T The Second Appeals have been filed against the common judgment and decree, dated 11.8.1995, made in A.S.Nos.39 and 40 of 1995, on the file of the District Court, South Arcot Vallalar District, Cuddalore, confirming the common judgment and decree, dated 31.8.1994, on the file of the Sub-Court, Chidambram, made in O.S.No.94 of 1989 and O.S.No.30 of 1990. https://hcservices.ecourts.gov.in/hcservices/ 2. Since both the second appeals are relating to the same issues and are based on common facts, they are taken up together and a common Judgment is passed. 3. The defendant in the suits O.S.No.94 of 1989 and O.S.No.30 of 1990, is the appellant herein. 4. The brief facts leading to the filing of the suit in O.S.No.94 of 1989, are as follows:- The defendant temple is one of the important shrines in Chidambaram Town and the plaintiffs' father Ponnambalam Pillai was the Sthanikam Mirasi holder of the temple and his right was upheld in O.S.No.73 of 1943, in which the defendant and The Tamil Nadu Hindu Religious and Charitable Endowment Department were parties. The decree made in the said suit is final and binding on them. The plaintiffs' father had died in the month of October, 1984, and the plaintiffs had become the Hereditary Sthanikam Mirasi office holders by acquiring the hereditary right as per the registered will, dated 9.2.1971, executed by the father of the plaintiffs. As the Hereditary Sthanikam Mirasi office holders of the defendant temple, the plaintiffs are entitled to all the rights, privileges, honours and emoluments attached to the said office. As per the decree in O.S.No.73 of 1943, the defendant devasthanam was to pay to the plaintiffs 1/4th of the net annual Hundial and other collections and to give four measures of cooked rice daily to the Sthanikam Mirasi office holders. Though the defendant temple had not been complying with the requirements, a communication had been sent to the plaintiffs stating that the compromise decree in O.S.No.73 of 1943, was contrary to the provisions of The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, and that unless it was modified or amended, the plaintiffs would not be entitled to any share in the income or perquisites. By the same communication, the defendant temple had ordered the stoppage of such payments and grant of perquisites to the plaintiffs. 5. On the contrary, it has been stated by the plaintiffs that the decree in O.S.No.73 of 1943, is not a scheme decree whereunder the plaintiffs' father was granted Sthanikam Mirasi right for the first time. The compromise decree in O.S.No.73 of 1943, had been made only in recognition of the pre-existing hereditary right which the plaintiffs and their father have been enjoying for several generations. The said right is not contrary to any provision of The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, rather it is a right protected under the said Act and Article 19(1) (f) of the Constitution of India. 6. The plaintiffs are hereditary trustees as Sthanikam Mirasi Holders. They are not mere office holders or servants of the temple https://hcservices.ecourts.gov.in/hcservices/ and the share in the income and other perquisites cannot be taken to be mere salaries paid to them. Therefore, neither the defendant temple, nor The Tamil Nadu Hindu Religious and Charitable Endowment Department would have the right to stop the plaintiffs' share in the income of the defendant temple and the perquisites they are eligible for. As per the terms of the decree in O.S.No.73 of 1943, the Sthanikam Mirasi office holders will keep one set of keys for the safe containing the jewels and the temple hundials and the other set of keys would be with the Executive Officer. The safe must be opened in the presence of the Sthanikam Mirasi office holders, the Inspector of The Hindu Religious and Charitable Endowment Department, the trustees and the Executive Officer on the specific orders of the Deputy Commissioner, Hindu Religious and Charitable Endowment Department. Prior intimation about the opening of the hundials would be given to the Sthanikam Mirasi office holders. The hundials would be opened, the collection counted and entered in the temple accounts book and it would be duly singed by the Sthanikam Mirasi Holders, the trustees, the Executive Officer and the Inspector of Hindu Religious and Charitable Endowment Department. However, after the death of the father of the plaintiffs, the procedures contemplated under the decree in O.S.No.73 of 1943, have not been followed. Hence, the plaintiffs had filed the suit praying for the grant of permanent injunction against the defendant and others from stopping the payment of 1/4th share in the income realised by the Temple and for the four measures of cooked rice due to the plaintiffs and to restrain them from opening the Temple Hundials without giving prior notice to the plaintiffs and without their presence. 7. The defendants in the suit O.S.No.94 of 1989, had stated that the plaintiffs' father Ponnambalam Pillai was functioning as the sthanikam of the defendant temple and that there was a suit filed in O.S.No.73 of 1943, on the file of the District Munsif, Chidambaram. However, it has been stated by the defendant that the will, dated 9.2.1971, executed by the plaintiffs' father, is neither true nor valid and therefore, it is not binding upon the defendant. The plaintiffs are not entitled to be the hereditary sthanikam Mirasi office holders of the temple and that they are not entitled to all the rights, privileges, honours and emoluments attached to the said office. After the death of the plaintiffs' father, the second plaintiff was functioning as sthanikam, temporarily, and it was not approved by the Deputy Commissioner, The Tamil Nadu Hindu Religious and Charitable Endowment, Mayiladuthurai. The first plaintiff was working as a teacher and was not functioning as sthanikam. The compromise decree made in O.S.No.73 of 1943, is not binding upon the defendant temple. The alleged rights of Ponnambalam Pillai was not the subject matter of the dispute in the said suit. It is false to say that the plaintiffs and their forefathers have been enjoying and exercising the sthanikam mirasi rights as a hereditary right for several generations. The plaintiffs were not entitled to the payment as prayed for by them, as a matter of right or by virtue of the https://hcservices.ecourts.gov.in/hcservices/ decree in O.S.No.73 of 1943. The payment to the sthanikam has been objected to by the Chief Audit Officer as it cannot be included in the regular expenditure of the establishment. Under the provisions of The Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959, the Commissioner was to send a copy of the audit report to the temple and it is the duty of the trustee to rectify the defects pointed out by the Auditor. Therefore, pursuant to the objection raised in the audit report, the Commissioner had directed that necessary steps be taken to rectify the irregularities. Since the provisions of the scheme decree is repugnant to the provisions of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959, it is void in law. The hereditary right has been taken away as per Sections 55 and 56 of the Act. The Commissioner had the power to fix the scales of expenditure. 8. Under such circumstances, the defendant had sent a communication, dated 6.11.1989, informing the plaintiffs that they are not entitled to the share in the income or the perquisites, unless the decree in O.S.No.73 of 1943 is amended. The action taken by the defendant is valid and according to law and the plaintiffs have no right to question the same. The plaintiffs had filed a suit in O.S.No.1225 of 1987, on the file of the District Munsif Court, Chidambaram, and it is pending. The plaintiffs had prayed in the said suit for rendition of accounts and for payment of the plaintiffs' 1/4th share of the income and for a mandatory injunction directing the defendants to hand over the keys of the hundials to the plaintiffs and for a permanent injunction restraining the defendant from opening the temple hundial without prior intimation to the plaintiffs. The plaintiffs are not entitled to keep the keys as claimed by them and it is not necessary that the hundials must be opened only in the presence of the plaintiffs and after giving prior intimation to them. Since the opening of the hundials are done in the presence of the defendant, the Inspector of the Hindu Religious and Charitable Endowment Department, the Assistant Commissioner, staff of the Central Co-operative Bank, Chidambaram, the public, the temple staff and others after notifying the same in the notice Board of the temple office, it is open to the plaintiffs to be present at the time of the opening of the hundials. However, the plaintiffs cannot claim that the hundials should be opened only in their presence. Therefore, it was stated that the suit filed by the plaintiffs was not maintainable and that it should be dismissed. 9. Based on the averments made in the plaint filed on behalf of the plaintiffs and the written statement filed on behalf of the defendant, the trial Court had framed the following issues for consideration in O.S.No.94 of 1989:- "1. Whether the decree made in O.S.No.73 of 1943 does not bind the defendant? 2. Whether the plaintiffs, their ancestors have not enjoyed the rights, in the status of Sthanikam Mirasdhars https://hcservices.ecourts.gov.in/hcservices/ hereditary? 3. Whether it is correct that the defendant had stopped the payment of share amounts to the plaintiffs? 4. Whether the suit had been filed by misusing the process of law? 5. Whether this Court has jurisdiction to hear this suit? 6. Whether the Will, dated 9.2.1971, is sustainable in law? Whether this could bind the defendant? 7. To what reliefs are the plaintiffs entitled to?" 10. The brief facts leading to the filing of the suit in O.S.No.30 of 1990, as follows: The plaintiffs' father Ponnambalam Pillai, S/o.Murugesa Pillai was the Sthanikam Mirasi holder of the temple and his rights as a Sthanikam Mirasi holder have been recognized and upheld in O.S.No.73 of 1943. After the death of the plaintiffs' father, they have become the hereditary Sthanikam Mirasi office holders, as per the registered Will, dated 09.02.1971, executed by their father. As such, they are entitled to all the rights, privileges, honours and emoluments attached to the said office. They are entitled to be paid ¼th of the net income, realised annually, by the defendant temple after deducting certain specified expenses and that they should also be given four measures of cooked rice daily. The Sthanikam Mirasi office holders will also keep one set of keys of the safe, containing the jewels and of the temple hundials and the other set of keys will be kept by the Executive Officer. The safe must be opened only in the presence of Sthanikam Mirasi office holders. The hundials of the temple will be opened only after prior intimation to the Sthanikam Mirasi office holders. The collection in the hundials were counted and entered in the account books and duly signed by the Sthanikam Mirasi office holders and the others. After the death of the plaintiffs' father, the Executive Officer of the defendant temple had taken away the keys of the temple from the plaintiffs by force and had not returned them in spite of repeated demands. Since the Executive Officer of the defendant temple is retaining the keys of the Sthanikam Mirasi office holders, illegally, the plaintiffs are entitled for a mandatory injunction, directing the defendant to return the hundial keys. Since the Executive officer is opening the temple hundials without the presence of the plaintiffs and without giving prior intimation to them, contrary to the terms of the decree in O.S.No.73 of 1943, the plaintiffs are entitled for permanent injunction restraining the defendant from opening the temple hundials without giving prior written intimation to the plaintiffs and without their presence, as the defendant has not been rendering true and proper accounts for the income realised from the hundial collections of the temple and since the plaintiffs have not been paid the emoluments in accordance with the decree in O.S.No.73 of 1943, the plaintiffs are entitled for rendition of accounts from 1394 fasli. In https://hcservices.ecourts.gov.in/hcservices/ such circumstances, the plaintiffs have filed the above suit in O.S.No.30 of 1990. 11. The defendant in the suit had stated that the Sthanikam is not entitled to keep the key of the hundials and the safe containing the jewels of the temple. It is incorrect to state that the hundials must be opened only in the presence of the Sthanikam, since there is no such provision in the decree in O.S.No.73 of 1943. Ponnamalam Pillai had received the amounts till his death and the second plaintiff had also received the ¼ th share till 1395 falsi. The plaintiffs and their father were never in possession of the hundial keys and there is no necessity to open the hundials after informing the plaintiffs. The accounts of the hundial collection have been properly and regularly audited. It is not correct to say that the Executive Officer of the temple took away the keys of the temple hundials from the plaintiffs by threat and by force. The suit is barred for non joinder of parties. Therefore, the suit has to be dismissed. 12. Based on the averments made in the plaint filed on behalf of the plaintiffs and the written statement filed on behalf of the defendant, the trial Court had framed the following issues for consideration in O.S.No.30 of 1990:- "1) Whether the defendant is bound to render accounts in respect of 1/4th share from 1394 fasli onwards, as has been claimed by the plaintiffs? 2) Whether the plaintiffs are entitled to the reliefs of mandatory injunction and permanent injunction as has been sought for by them? 3) Whether the alleged discharge is true? 4) Whether the suit is maintainable in law? 5) Whether the suit has been adversely affected due to the non-impleading of the necessary parties to the suit? 6) Whether this Court has jurisdiction to hear this suit? 7. To what other reliefs are the plaintiffs entitled to?" 13. Both the suits were tried together by the Court of Subordinate Judge, Chidambaram, and the suits have been decreed. Aggrieved by the judgment and decree of the trial Court, dated 31.08.1994, the defendant has filed an appeal before the lower appellate Court. 14. In the proceedings of the District Collector, South Arcot District dated 29.10.1913, marked as Ex.A-3, Murugesa Pillai has been described as Trustee (Arangavalar). From the said proceedings, it is seen that the request of Murugesa Pillai in Ex.A-2 has been rejected. https://hcservices.ecourts.gov.in/hcservices/ The petition, dated 20.02.1914, marked as Ex.A-4, has been submitted to the District Collector, South Arcot District. In Ex.A-5, dated 16.12.1917, which is an order passed by the Tahsildar, Chidambaram, rejecting the request of Murugesam Pillai for grant of patta has been referred to. It was found by the trial Court that in Ex.A-4 Murugesam Pillai has been described as Sthanikam hereditary mirasi and in Ex.A- 5, he has been described as 'Trustee' (Arangavalur). Ex.A-6, dated 13.08.1924, is a registered document executed by Manickam pillai, with regard to the conveying of the heriditary mirasi rights to Murugesam Pillai. This document has been accepted to show that the sthanikam rights have been enjoyed by Manickam pillai even prior to the year 1924. In Ex.A-7, Manickam Pillai has been shown as a trustee (Arangavalur) of the defendant temple. It is shown that the defendant temple had been in existence even prior to 1801 and that the said temple has never been under the control of the temple committee and thus it has been shown to be an exempted temple. Ex.A-9 is a trust deed written by Murugesam Pillai in favour of his son Ponnambalam Pillai. From the said document, the trial Court had seen that Ponnambalam Pillai and his ancestors had been administering the affairs of the defendant temple and have been enjoying the rights and privileges connected with its affairs, including the Sthanikam mirasi rights. 15. Even though the said document is an unregistered document, it has been accepted by the trial Court to show that Murugesam pillai had Sthanikam Mirasi rights in the defendant temple. Similarly, from the other exhibits, marked in support of the claims of the plaintiffs, the trial Court has seen that the plaintiffs and their ancestors have been shown to have been administering the affairs of the defendant temple and had been enjoying the Sthanikam Mirasi rights and the privileges connected therewith. In the letter, dated 07.02.1942, written by the temple Executive Officer and the Managing Trustee and the defendant temple, marked as Ex.A-19, it has been shown that Ponnambalam Pillai and his heirs have been having hereditary Sthanikam Mirasi rights and that they have been having the keys of the safe containing the temple jewels and the temple hundials and that they have been having shares in the income of the temple. In the suit in O.S.No.73 of 1943, filed by Naganatha Dixithar in the Court of the District Munsif, Chidambaram Ponnamabalam Pillai, Son of Murugesam Pillai, Ponnambalam Pillai Son of Muthukumara Pillai have been shown as Trustees. 16. The compromise decree made in the said suit has been marked as Ex.A-20. It is seen from the said decree that Ponnambalam Pillai's rights as Sthanikam Mirasidarar has been established. Ex.A-23, dated 09.02.1971, is a registered will executed by Ponnambalam Pillai in favour of his sons who are the plaintiffs in the suit. By the said Will the Sthanikam Mirasi rights of Ponnambalam Pillai has been conveyed to the plaintiffs. From the other exhibits marked in favour of the plaintiffs, which are dated subsequent to the date of the https://hcservices.ecourts.gov.in/hcservices/ Will, the trial Court had come to the conclusion that the plaintiffs are entitled to the Sthanikam Mirasi rights and the privileges related thereto. It was also held by the trial Court that Sthanikam Mirasi rights and the privileges in favour of the plaintiffs were continuing and therefore, they were entitled to the reliefs claimed by them in the suits. 17. The trial Court, while examining the documents marked as Exhibits in the suit, has found from Exhibit A.1, dated 28.8.1992, that it is a lease deed written by one Vaidiyalinga Nadar in favour of Ponnambalam Pillai. From the said document, it has been seen that Ponnambalam Pillai was Sthanikam Mirasi of the defendant temple. The properties belonging to the defendant temple had been taken on lease by Vaidiyalinga Nadar from Ponnambalam Pillai. It has been found that there is no dispute about the relationship of the plaintiffs with Ponnambalam Pillai and his descendants. Exhibit A.2, dated 22.3.1912, is a document by which Murugesam Pillai father of Ponnambalam Pillai had requested the District Collector to allot certain lands in favour of the temple by granting patta. The documents marked as Exhibits on behalf of the plaintiffs, the trial Court had found that the plaintiffs and their ancestors have been sthanikam mirasi Office holders taking care of the some of the administrative matters of the defendant temple. The document marked as Exhibit A.19, dated 7.2.1942, the Executive Officer and the Managing trustee of the defendant temple have accepted that Ponnambalam Pillai and his heirs to be the hereditary Sthanikam Mirasi and have also accepted they have the rights and privileges. It was also seen that Sthanikam Mirasi had rightful share in hundial collection and were also entrusted with the keys of the temple and the safe containing the jewels of the temple. From the decree made in O.S.No.73 of 1943, it was found that there had been a compromise amongst the parties to the suit. 18. In such circumstances, the trial Court had decreed the suits in favour of the plaintiffs. 19. Aggrieved by the judgment and decree of the trial Court in O.S.No.94 of 1989 and O.S.No.30 of 1990, the defendant temple had filed two appeals before the lower appellate Court in A.S.Nos.39 and 40 of 1995. Based on the records available and the rival contentions of the parties concerned, the lower appellate Court had framed the following points for consideration. "1. Whether the plaintiff is entitled for permanent injunction restraining the defendant from stopping the payment of 1/4th share in the income realised by the temple and four measures of cooked rice daily to the plaintiffs and from opening the Temple hundials without the presence of the plaintiffs and without giving them piror https://hcservices.ecourts.gov.in/hcservices/ notice? 2. Whether the plaintiffs are entitled for rendition of accounts of the income realised by the temple by the defendant and for payment of the plaintiff's 1/4th share of the net income realised from 1394 fasli onwards? 3. Whether the plaintiffs are entitled for mandatory injunction directing the defendant to handover the temple's keys of the Sthanikam Mirasi Office holder to the plaintiffs, and whether the hundials have to be opened in the presence of plaintiffs after giving prior notice?" 20. After stating the facts and averments of the plaintiffs and the defendants, the lower appellate Court had noted that the second plaintiff had been examined as P.W.1, the first plaintiff is his brother. They are the sons of Ponnambalam Pillai. P.W.1's evidence is that the temple pooja and the administration was with Ponnambalam Pillai and his forefathers' were looking after the properties and the administration of the temple and their grand father Murugesam Pillai was looking after the administration and only during the said period the defendant temple had been declared as an exempted temple. The income of the temple was from the lands, archana tickets etc. , and that the keys of the temple, jewel box and hundials were with them and the plaintiffs are the Sthanikam Mirasi office holders. P.W.1 had filed a lease deed, marked as Ex.A-1, and the petition given to the Tahsildar. 21. Analysing the documents filed as exhibits in favour of the claims made by the plaintiffs, the lower appellate Court had come to the conclusion that the plaintiffs and their forefathers were entitled to the heriditary Sthanikam Mirasi rights and that they are entitled to the custody of the keys of the temple, jewel box and the hundials. Further, from the compromise decree made in O.S.NO.73 of 1943, the lower appellate Court had come to the conclusion that the plaintiff's father and his family members were the hereditary Sthanikam Mirasi office holders and they are entitled for the rights and privileges thereto. As hereditary Sthanikam, they were entitled for ¼ th share in the income of the defendant temple and for four measures of the rice, which they were entitled to. Further, it was also held that they were to have the keys of the temple, the safe containing the jewels of the temple and the hundials of the temple. 22. From the evidence of D.W.1, the lower appellate Court had come to the conclusion that the plaintiffs father was the trustee and he was doing the work of Sthanikam for which he was given 1/4th share of the net income from the temple