IN THE HIGH COURT OF JUDICIATURE AT MADRAS DATED: 26.06.2008 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.NO.825 of 1995 Om Sakthi Sri Periyapalayathamman Trust, represented by its President S.Siva, son of Shanmugam, residing at No.104, Lattice Bridge Road, Adyar, Madras-600 020. .. Appellant/Plaintiff Vs. 1.The Commissioner, H.R. & C.E. Department, Uthamar Gandhi Road, Nungambakkam, Madras-34. 2.The Deputy Commissioner, H.R.&C.E.Department, Uthamar Gandhi Road, Nungambakkam, Madras-34. . . Respondents/Defendants The First Appeal is filed U/Sec. 70(2) of the Tamil Nadu H.R & C.E. ACt 22/1959 against the judgment and decree dated 29.6.1995 made in O.S.No.7817 of 1991 on the file of the I Assistant Judge, City Civil Court, Madras. For Appellant : Mr.W.C.Thiruvengadam For Respondents : Mr.M.R.Murugesan, Spl.G.P.(H.R.&C.E) JUDGMENT Niggard and bereft of details, the quintessence of the case of the plaintiff as stood exposited from the plaint in the statutory suit filed under Section 70(1) of the Hindu Religious and Charitable Endowment Act (Act 22 of 1959)(hereafter for short Act)would run thus:- https://hcservices.ecourts.gov.in/hcservices/ The plaintiff is a trust. Om Sakthi Sri Periyapalayathamman temple is a private temple dedicated to the worship of the members of the plaintiff trust situated at Lattice Bridge Road, Adyar. The plaintiff trust renovated the said temple which was originally founded by one Duraikannu Gramini who also happened to be the founder of the plaintiff trust. He was worshipping in the temple in his private capacity. The establishment, maintenance and management of the institution remained with the founder of Duraikannu Gramini. No contribution has been taken from the outsiders by the founder. The said temple has no property of its own. It is not getting any income. The two grounds extent in which the said temple is situated was in the occupation of the said Duraikannu Gramini in his personal capacity. In the unregistered document which emerged at the time of the family partition, the said two grounds of land was allotted to the father of Duraikannu Gramini. The temple deity was for being worshipped by the family of the Duraikannu family. While so, the said Duraikannu Gramini handed over the said temple to the plaintiff trust on 6.8.1982. But the founder continued to be the member of the trust and he was taking interest in the day to day management and affairs of the said temple. Public are not allowed to worship in the temple as a matter of right. Permissive worship was only allowed in the temple. Hence, the temple is beyond the purview of the H.R.&C.E. Act. The plaintiff, therefore filed O.A.No.30/1982 under Section 63(a) of the H.R.&C.E.Act., before the Deputy Commissioner of H.R.&C.E., who dismissed the said application upholding that it is a public temple. The appeal filed before the Commissioner was also dismissed whereupon the statutory suit was filed with the following prayer: (a)for setting aside the order of the first defendant passed in A.P.47/87 dated 20.9.91 ; and (b) for declaring that Sri Periyapalayathamman temple, situated in Lattice Bridge Road, Adayar, Madras-20, is not a 'religious institution' coming under the Act 22 of 1959 ; 2. Gainsaying and challenging, impugning and controverting the allegations/averments in the plaint, the defendant filed the written statement, the pith and marrow of it would run thus:- The temple by name Arulmighu Periyapalayathamman situated at Lattice Bridge Road, Adyar, Madras is a public religious institution within the meaning of Section 6(20) read with section 6(18) of the Tamilnadu H.R.&C.E. Act 1959. Large number of Hindu public do worship at this temple daily and during festival times without any restriction and they offer kanikkai in the Hundials installed in the temple. Daily two kala poojas are being performed by Archakkas appointed in this temple. Therefore Section 1(3) of the H.R.&C.E. Act is applicable to the said temple. Hence, notice was issued to the present management of the temple by the Assistant Commissioner, H.R.&C.E., Department, Madras in his R.C.No.7251/82 A3, dated https://hcservices.ecourts.gov.in/hcservices/ 7.10.1982, whereupon the plaintiff filed an application in O.A.30/1982 under Section 63(a) of the Act to get a declaration that the suit temple is not a religious institution or a temple within the meaning of the H.R.&C.E. Act. The Deputy commissioner correctly held that the suit temple is a public temple whereupon the appeal was filed, which was also dismissed by the Commissioner. Before the Deputy Commissioner, the plaintiff contended that the alleged private temple was founded 170 years ago by the ancestors of Duraikannu family and it was renovated by Duraikannu Gramini. Accordingly the defendants prayed for the dismissal of the statutory suit. 3. During trial on the side of the plaintiff, its present managing trustee was examined as P.W.1 along with P.W.2 and Exhibits A-1 to A-6 were marked. On the defendant side, D.W.1, the Inspectress who conducted the enquiry relating to the affairs of the temple was examined and no document was exhibited. Ultimately, the trial Court dismissed the suit. 4. Being aggrieved by and dissatisfied with the Judgment and decree of the trial court, the plaintiff filed this appeal on the following grounds among others:- The judgment and decree of the trial court is against law, weight of evidence and all probabilities of the case. The trial court failed to understand the scope of the application filed under Section 63(a) of the H.R.&C.E.Act and consequently failed to uphold the private character of the temple. Ignoring the evidentiary value of Ex.A.1 and Ex.A.2, the trial court failed to consider that Duraikannu Gramini founded the institution and that it remained with him and his family members for more than three generations. Duraikannu Gramini founded the plaintiff trust and handed over the suit temple to the trust for management. The plaintiff trust renovated the temple and managing the day to day affairs. The said temple is not owning any property and no property was dedicated to the deity. The public are not having any right to worship in the suit temple. Accordingly, relying on the report of the inspector, the trial court decreed the suit. The trial Court failed to see that the plaintiff trust is a private trust, managing the suit private temple. Accordingly, the plaintiff prayed for setting aside the judgement and decree of the trial court and for decreeing the suit. 5. The parties are referred to according to the litigative status before the trial court. The points for consideration are :- (i)Whether the plaintiff trust is a public trust or a private trust? (ii)Whether the suit temple comes within the purview of the H.R.C.E. Act. (iii)Whether there is any infirmity in the judgment and https://hcservices.ecourts.gov.in/hcservices/ decree of the trial court? 6. The whole kit and caboodle of the facts and figures placed before the trial court would demonstrate thus:- The apple of discord between the plaintiff and the defendants is relating to the character of the suit temple as to whether it is a public temple or a private temple. By way of fortifying and buttressing the plea of the plaintiff, P.W.1, the present trustee of the plaintiff would narrate in his deposition by way of reiterating his stand in the plaint. P.W.2- Namalwar one of the members of the plaintiff trust would depose that during the year 1988, the temple was built without collecting any donation by the trust. 7. P.W.1 during cross examination would detail and delineate the facts as though the temple was constructed 200 yeas ago, Whereas P.W.2 would narrate that the temple was installed 300 years ago and that the temple is situated in a private land and the public are not allowed to worship. P.W.1 would specifically state during chief examination thus:- "bkk;gh;fs; FLk;gj;jpdh; kl;Lk;jhd; tHpgLthh;fs;. bghJkf;fs; ahUk; tUtjpy;iy " (emphasis supplied) It is therefore crystal clear during trial before the lower Court, both P.W.1 and P.W.2 made a vain attempt to project their case as though the temple is meant for being worshipped by the family members of the Board of trustees of the plaintiff trust and not by the public and that the public are denied worship. It is therefore clear that the evidence of both P.W.1 and P.W.2 is antithetical to the plaint averments which would expatiate that public are permitted to worship in the temple; however as per the plaint, it was "permissive worship". Even such an averment in the plaint was given a go-by during trial on the plaintiff's side due to over enthusiasm to assert their plea. 8. According to the plaintiff, the suit trust is a private trust which is totally contrary to recitals in Ex.A.1, their own document. However, the learned senior counsel for the plaintiff while arguing the case in response to my query candidly and fairly submitted that the plaintiff trust is a private trust in view of the recitals in Ex.A.1. Despite such supine and fair submission by the learned counsel for the plaintiff, I would like to further elaborate on that point as to how the plaintiff trust is not a private trust but a public one. The relevant portion of Ex.A.1, the trust deed is extracted hereunder for ready reference:- https://hcservices.ecourts.gov.in/hcservices/ "OM SAKTHI SRI PERIYAPALAYATHAMMAN TRUST Deed of Declaration of Trust executed this the 6th day of August 1982, by me Duraikannu Gramini S/o.Govindaswamy Gramini, Hindu aged 60, residing No.15, C.I.T.Cly, Sastri Nagar, Adyar, Madras-20 to constitute a public charitable trust. Whereas the authors of the Trust have endowed and set apart a sum of Rs.1,000/- as an initial endowment to the corpus in this behalf, and for the improvement of the objects of the trust set for hereunder. 1. To infuse into the members, the ideal service to society. 2.To promote opportunities and offered facilities to render services to the community by direct or indirect means and by way of collection of donations and subscriptions etc. 3. To promote the welfare of children, youth and women in general. 4. To establish and run hostels and hospitals in the name of the trust. 5. To construct or adopt temples and run 6.To promote and develop intellectual and cultural activities. 7. To promote the habit of divinity among the youth as well as the public. 8. To encourage the youth's for acquiring knowledge in the field of divinity. 9. To assist the students to study about divine. 10. To do all such things as are incidental or conducive to the attainment or promotion of the above objects or any of them. ..... ... The initial endowment by the Trustees of the Trust amounting to Rs.1,000/- shall constitute the corpus of the Trust, and rest in the managing committee of the Trust. The Managing Committee of the Trust may obtain donations and other amounts from any person including the trustees of the trust, and from any other trust or from otherwise as may be found necessary from time to time. The Managing Committee of the trust may obtain donations and to raise funds and by other practical means." (emphasis supplied) It is therefore crystal clear from the above excerpts extracted supra that the plaintiff trust is for public welfare at large. Moreover the very trust itself is called Om Sakthi Sri Periyapalayathamman Trust, so to say, named after the suit temple and in addition to the charitable purposes contemplated in Ex.C.1, the said trust contemplates to promote the habit of divinity among the youth as well as public and to encourage them in the field of divinity to assist the https://hcservices.ecourts.gov.in/hcservices/ students to study about the divine. It is explicit from the recitals in Ex.A.1, that the trust is meant for the benefit of the public at large. It is not meant for benefiting the family members of the trustees. It is therefore clear that the recitals in the plaint as well as in the deposition of P.W.s 1 and 2 are totally wrong and erroneous which are intended to twist and distort the real facts and the real intention of the plaintiff trust. In fact, the said Duraikannu Gramini was not examined as a witness before the lower court or before any authority for reasons best known to the plaintiff. The trial court correctly commented upon it. It is not the case of the plaintiff that during the proceedings before the authorities under the H.R.&C.E., and before the trial Court, Duraikannu was not alive. 9. There is one other glaring point, which, I may say falsehood on the side of the plaintiff in stating that no donation or collections are effected at any point of time under Ex.A.1 clause No.2 and also in the other two paragraphs which are extracted supra contemplate collections of donations from any person including the trustees of the trust. It is therefore crystal clear from the recitals in Ex.A.1 that the Om Sakthi Sri Periya Palayathamman Trust which is nomenclatured after the suit temple Om Sakthi Sri Periya Palayathamman, contemplates public purposes and that beneficiary should be public at large and no where it is found indicated that the members or the trustees of the trust alone shall be are the beneficiaries of the trust. It is therefore obvious and axiomatic that the plaintiff trust is a public trust. However, suo motto, I would like to cite the decision in Deoki Nandan Vs. Murlidhar reported in A.I.R.1957 SC 133 to high light that the plaintiff is a public trust :- "5. It will be convenient first to consider the principles of law applicable to a determination of the question whether an endowment is public or private, and then to examine, in the light of those principles, the facts found or established. The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individulas, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. The position is thus stated in Lewin on Trusts, Fifteenth Edition, pp.1516: "By public must be understood such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description. To this class belong all trusts for charitable purposes and indeed public trusts and charitable trusts may also be considered in general as synonymous expression. In private trusts the beneficial interest is vested absolutely in one or more individuals who are, or within a certain time may be, definitely ascertained..." https://hcservices.ecourts.gov.in/hcservices/ Vide also the observations of Mitter,)in Haji Mahammad Nabi Shirazi Vs. Province of Bengal, I.L.R.(1942)1 Cal.211 at pp.227.228 (A.I.R.1942 Cal.343 at p.349) (B). Applying this principle, a religious endowment must be held to be private or public, according as the beneficiaries thereunder are specific persons or the general public or sections thereof." (emphasis supplied) From the above, it is clear that the plaintiff public trust viz., Om Sakthi Sri Periya Palayathamman is managing the temple called Om Sakthi Sri Periya Palayathamman temeple for the benefit of the public and the beneficiaries are the public and it is not that the beneficiaries are the trustees and their family members. When this Court raised the point whether in Ex.A.1, there is any mandate to the plaintiff trust, to maintain the suit temple, the learned counsel for the plaintiff would try to expound that there is no reference to the suit temple in Ex.A.1 for the reason that at the time of registering the deed, the registering authority demanded No Objection Certificate or clearance certificate from the H.R.&C.E. authorities and hence there is no reference to the suit temple in Ex.A.1. It is therefore apparent that as per Ex.A.1, absolutely there is nothing to show that the suit temple is for the benefit of the trustees and their family members and not for the public. The recitals in Ex.A.1 is to the effect that the trust is for public purpose and to promote religious faith and divine worship among the general public. A fortiori the suit temple is necessarily a public temple. It is beyond the scope of Ex.A.1 for the plaintiff trust to manage any private temple for the benefit of the trustees and their family members. If Ex.A.1 is interpreted that the plaintiff trust could hold and manage a private temple for the benefit of the members of the plaintiff's trustees, then it would meant to doing violence to the recitals in Ex.A.1. The Ipse dixit, P.W.1 that the plaintiff Trust is managing the suit temple purely for the benefit of its trustees is against the very purpose of the plaintiff trust. 10. The definitions as contemplated under Section 6(18) and 6 (20) of the H.R.& C.E. Act are extracted here under for ready reference:- Section 6(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. Section 6(20):- "Temple" means 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 of right by, the Hindu community or of any section thereof, as a place of public religious worship ; My above discussion supra would make the point clear that the suit https://hcservices.ecourts.gov.in/hcservices/ temple should be treated as a temple within the purview of Section 6 (20) and as a sequelee, it is a religious institution under Section 6 (18) of the same Act. 11. Learned counsel for the plaintiff would find fault with the trial court for having not referred to the Exhibits marked on the side of the plaintiff and also for having not considered as many as twenty decisions cited on the side of the plaintiff. Consequently, the counsel for the plaintiff would pray for remitting the matter to the trial Court for being dealt with afresh. I am at a loss to understand as to why the matter of this nature should be remanded to the trial court. The plaintiff should have adduced evidence as the burden of proof was on the plaintiff to prove its case that the suit temple is a private temple. There are catena of decisions which would show that the temples in Tamil Nadu are presumed to be public temples. Ample opportunity was given to the plaintiff to adduce evidence before the trial court and simply because the judgment of the trial court is not elaborate touching upon all the exhibits and the decisions cited on the side of the plaintiff, it cannot be a ground for remitting the matter back to the ground and that too for nothing to be dismissed once again by the trial court. 12. The learned counsel for the plaintiff would refer to Ex.A.2 and contend that as per the versions found there in, there is no reference to the public to have worship by way of right in the suit temple. Once again, the contention of the plaintiff's side is wrong. 13. A perusal of the entire Ex.A.2, the Minutes Book would clearly demonstrate that the plaintiff's case is not correct. First of all, it could be seen that A-2 is not an authentic document because it is only maintained by the plaintiff and the interested persons signed it. The very first minutes found recorded in Ex.A.2 on 8.8.1982 itself is not free from doubt. As per the minutes found thereon, they would portray and project as though the temple was built five generations ago counting from Duraikannu Gramini and there is nothing to indicate in which particular year it was constructed, whereas P.W.1 would depose that 200 years ago, the temple was constructed, on the contrary P.W.2 says that 300 years back, the temple was constructed. There is no iota of shred of evidence as to when the temple was constructed and by whom. My mind is redolent with the following decisions and in fact the learned counsel for the plaintiff also would cite them. 14. The privy council's decision reported in LW 1934 Vol.XL (MUNDACHERI KOMAN vs. ACHUTHAN NAIR) is on the point that in Tamil Nadu the presumption is that the temples herein are Public temples unless the contrary is proved. 15. A decision of this Court reported in AIR 1966 Madras 99 https://hcservices.ecourts.gov.in/hcservices/ (NALLAKARUPPAN v. COMMISSIONER, H.R.& C.E.) is also on the same line as that of the privy council's decision that in Tamil Nadu public the presumption is that the temples herein are Public temples unless the contrary is proved. An excerpt from it would run thus;- "9. The decision in Govindalalji v. State of Rajasthan, AIR 1963 SC 1638 at p.1648, dealt with the temple at Nathdwara in Rajasthan. Gajendragadkar J.(as he then was), who delivered the opinion of the Bench, observed: "Where evidence in regard to the foundation of the temple is not clearly available, sometimes judicial decisions rely on certain other facts which are treated as relevant. Is the temple build in such an imposing manner that it may prima facie appear to be a public temple? The appearance of the temple of course cannot be a decisive factor; at best, it may be a relevant factor. Are the members of the public entitled to an entry in the temple? Are they entitled to take part in offering service and taking Darsan in the temple? Are the members of the public entitled to take part in the festivals and ceremonies arranged in the temple? Are their offerings accepted as a matter of right? The participation of the members of the Public in the Darsan in the temple and in the daily acts of worship or in the celebrations of festival occasions may be a very important factor to consider in determining the character of the temple. In the present proceedings, no such evidence has been led and it is, therefore, not shown that admission to the temple is controlled or regulated or that there are other factors present which indicate clearly that the temple is a private temple. Therefore, the case for the Tilakayat cannot rest on any such considerations which, if proved, may have helped to establish either that the temple is private or is public". Applying the above principles to the present case, it is clear that in regard to the temple in Nachandupalli, even if it was found exclusively for the benefit of the members of the Nattukottai Chettiar community belonging to 5 temple clans, the dedication of the temple to the community and the worship by the members of the community as of right in the temple, would still make it a public temple, as the members constitute a section of the Hindu community as contemplated in the definition in S.6(17) of the Act. Here the suit temple therefore could rightly be presumed to be a Public temple and that too in the absence of any evidence to contrary https://hcservices.ecourts.gov.in/hcservices/ that it is a private temple and as to when it was constituted and by whom. 16. An excerpt from the decision of this Court reported in 1976 Madras 26 (T.MUDALIAR v. COMMISSIONER H.R. & C.E.) would run thus; "No provision had been made for taking out the idols of the temple on procession to any place outside the inner compound of the temple. There was no hundi for collection from Worshippers of the temple. There was no bell and when the Commissioner visited the temple at the time of Deeparadhana, there were no outsiders excepting himself and the two inspectors of the department. The provision of the door and the compound wall and the site of the temple was such that it was incapable of attracting members of the public resort therein as of right either for worship or for participating in any celebration therein. The question was whether such a temple was a public temple or a private one. The three guidelines which enable the courts to decide whether a particular religious institution comes within the scope of the meaning of the above definition are that it should be a place of public worship, there should be acceptable proof of dedication for the