IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.09.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.326 of 2001 The Commissioner, Hindu Religious and Charitable Endowments Department, Chennai-34. .. Appellant / Defendant -vs- 1.V.Jegathambal 2.K.V.Santhanam 3.K.V.panneerselvam 4.P.Jayalakshmi 5.K.V.Pradhapan 6.K.V.Mani 7.T.Kalaivani 8.K.V.Mohan .. Respondents / Plaintiffs Prayer:- This Appeal has been filed under Section 70(2) of the HR & CE Act 22 of 1959 against the decree and judgment in O.S.No.720 of 1995 dated 15.02.2000 on the file of the Principal Subordinate Judge, Erode. For appellants : Mr.M.R.Murugesan, Advocate (H.R & C.E) For respondents : Mr.T.Murugamanickam, Advocate (For R1 to R8) JUDGMENT This appeal has been directed against the decree and judgment in O.S.No.720 of 1995 on the file of the Court of Principal Subordinate Judge, Erode. 2.The short facts of the plaint relevant for the purpose of deciding this appeal are as follows:- The common ancestor of the plaintiffs was one 'Vadamalai Pillai' of Karungalpalayam, Erode Town. He was a pious man and was a staunch Vaishnavite. He was doing poojas at his house to his 'Kula Deivam' Sri Venugopalaswamy. Later on he constructed a superstructure at his place and installed the deity of Sri Arulmigu Venugopalaswamy. He was doing poojas and worshipping to the said deity with his family members alone. The said Vadamalai Pillai founded the said temple for the benefit of his family alone. It is an ancient temple. He dedicated the temple for the benefit of his https://hcservices.ecourts.gov.in/hcservices/ family. His family members alone used to come and offer poojas, worship etc. The said Vadamalai Pillai constructed the said temple out of his own funds and he did not collect any funds from outside. He was exclusively in management and control of the said temple till his death. There was no dedication of the said temple to the public. The public are not allowed to come and worship in the said temple as of right. In fact public do not at all come on worship in the said temple. There is no Gopuram, Prakaram or Dwajasthambam etc. in the said temple. All these features would go to show that it is a private temple exclusively owned and maintained by the said Vadamalai Pillai and his family members alone. The suit temple is a private temple belonging to the plaintiffs alone. The suit temple has never been used as a place of public worship. While so the said Vadamalai Pillai was maintaining and looking after the affairs of the suit temple till his death. During his life time the said Vadamalai Pillai had executed a registered Will dated 6.6.1926 under which he has appointed the person next in line of succession to him to be in management of the suit temple. The said temple was in the management of Vadamalai Pillai till his death. After the death of Vadamalai Pillai, his only son K.V.Venugopal Pillai succeeded to him in the management of the suit temple and he was exclusively maintaining the suit temple till his death on 5.9.1989. The said K.V.Venugopal Pillai during his life time moved the Deputy Commissioner, Hindu religious and Charitable Endowments Department, Comibatore, under Section 63-A of the Act 22/1959 to declare that the suit temple is a private religious institution. The Deputy Commissioner after calling for a report, on the basis of the evidence and on appreciation of the evidence both oral and documentary has allowed O.A.No.37 of 1986 on 10.12.1987, which was filed by K.V.Venugopal Pillai. The plaintiffs being the heirs of the said K.V.Venugopal Pillai were surprised to know that the defendant has suo motto initiated proceedings in Suo Motto Revision No.4 of 1991 and on an erroneous view the learned Commissioner has set aside the orders of the Deputy Commissioner by the order dated 24.5.1995. Aggrieved by the orders passed by the Commissioner, HR & CE Department, the plaintiff has filed the suit under Section 70 of the Tamil Nadu Hindu Religious and Charitable Endowment Act. The suit temple is in exclusive control and management of the plaintiffs and their forefathers for more than three generations. Hence, the suit temple is to be declared as a private temple exclusively belonging to the plaintiffs alone. Hence, the suit. 3.The defendant in his written statement would contend as follows:- Arulmigu Venugopalaswamy temple situated in Kaveri Road, Karungalpalayam, Erode Taluk, Periar District is a religious institution as defined under Section 6(20) of the Act and the said temple has been brought under the control of the Department in the year 1975. When the temple was brought under the control of the Department it ws managed by one late K.V.Venugopal Pillai and V.Thiruvengadam Pillai. One Thiru Vedamalai said to be the founder of the temple had executed a Will dated 6.6.1926, thereby https://hcservices.ecourts.gov.in/hcservices/ dedicating an extent of 5.27 acres of land besides house buildings situated in Karungalpalayam. In the Will he has stated that from the ancestral proeprty and self earned property acquired by him, he has bequeathed 3/4th share for his family and the residual balance of 1/4th share was set apart for the performance of daily poojas and utsavams in Sri Venugopalaswamy Temple situate at Karungalpalayam, Erode. In the Will, the executor has forbidden the right of any alienation over the property and provided larger participation of the villagers in the interests of the temple. Therefore, the association of the villagers in the management eventually shows the mind of the Testator for dedication of the temple to the Hindu Public, as a place of Public worship attracting the definition of Section 6(20) of the Act. When the persons in management stated to alienate the properties much against the wishes of the Testator, the Department took control over the institution and appointed an Executive Officer as fit person of the temple. To prevent the lawful action of the Department, one of the defacto trustees in management Thiruvengadam Pillai has filed O.A.No.15 of 1981 before the Deputy Commissioner, Coimbatore, for a declaration that the suit temple is not a public religious institution. However, the above said O.A. was dismissed for non- prosecution. The other co-trustees Thiru Venugopal Pillai has filed a similar O.A.No.29 of 1984 for the same relief which was also dismissed for non-prosecution on 31.3.1987. Leaving apart, the said Venugopal Pillai has filed yet another O.A.No.37 of 1985 on 13.6.1986 for the same cause of action when the earlier O.A. was pending enquiry. In this O.A. he has not mentioned anything about the filing of earlier O.A. In the meanwhile, the fit person has taken management of the institution and attending the day to day affairs of the institution. While so, the Deputy Commissioner, HR & CE, Coimbatore, without scrutinising the documents properly, erroneously passed an order on 10.12.1986 declaring the institution is not one coming under the provisions of the Act. The Deputy Commissioner has not taken into cognizance of the earlier O.As. filed in this case. Armed with the declaration, the successors in management has started to alienate the properties much against the wishes of the testator. The Executive Officer Arulmighu Kongalamman Temple, Erode, in his capacity as fit person got impleaded in the said O.A. and filed Ex.B.1 to Ex.B.13 to disprove the claims of the applicant. Evidently Ex.B.2 is the registration copy of the document for having sold the property of the temple. When these things were brought to the notice of the Commissioner it was necessitated to call for the records of the Deputy Commissioner, HR & CE, Coimbatore in O.A.No.37 of 1985 for proper scrutiny as provided under Section 69(2) of the Act. On perusal of the records and after getting satisfied that there is need to examine the legality of this order to decide as to whether the order in question should be revised under Section 69(2) of the Act Suo-Motto Revision No.4 of 1991 has been started. Notices in SMR has been issued to the persons interested in the management and they made their appearance in the proeedings. On and after proper scrutiny of the records, orders have been passed in SMR.No.4 of 1991 dated 24.5.1995 declaring the institution as a public religious institution under Section 6(18) read with Section 6(20) https://hcservices.ecourts.gov.in/hcservices/ of the Act on the ground that there is a clear dedication of the properties to the temple. Besides there are anomalies in the order of the Deputy Commissioner which lead to surmise that the entire proceedings in O.A.No.37 of 1986 is vitiated suppressing certain material facts. It is against this order, the present suit has been filed. The avements in the plaint that one Vadamalai was the common ancestor of the plaintiffs and that he has constructed a superstructure at his place and installed the deity and that he was worshipping the deity with his family members and that the said Vadamalai founded dedicated the temple for the benefit of his family alone and that the temple was exclusively under the control of the said Vadamalai and that the public are not allowed to come and worship in the temple and that the temple has no features of a public temple are all false. Vadamalai Pillai had created the trust for the temple only for the public worship of the temple. Since the orders of the Deputy Commissioner in O.A.No.37 of 1986 was against the cognizance and natural justice, the same was set aside by the Commissioner, HR & CE Department in Suo Motto Revision No.4 of 1991. A clear reading of the Will executed by the common ancestor would go to show that he had set apart 1/4th share of his property for the purpose of daily poojas and utsavam in Sri Venugopalayswamy temple. He had created a line of succession to the management of the temple in his family. Besides, it was mentioned in the Will that one Kamatchi Pillai Shanmugam Chettiar, Marimuthu Pillai and Subbaraya Pillai would assist the family members of Vadamalai Pillai as trustees. The executor has not mentioned in the Will that the temple is a private temple exclusively intended for the worship of the founder and his family members. On the other hand, he has endowed the properties for the daily poojas and festivals and for the maintenance of the temple. The records produced by the fit person in management before the Deputy Commissioner, Coimbatore, would go to show that the building belonging to the temple. Incidentally, he vested the right of management of the temple to outsiders as specified in the Will during the period of minority of the male members of his family so as to assist them in management. This clearly shows the mind of the Testator of the Will for dedication of the temple and the property to the Hindu public for being used as a place of public religious worship. The place in which the suit temple was constructed includes and forms part of one fourth of the total property has been dedicated to 'Venugopalaswamy Karungalpalayam' as the executor has forbidden the right to alienate the particular portion of the property. The inclusion of the name of one Shanmugham S/o.Kandaswamy Chettiar, who is an outsider, in the Will as one of the nominated trustees by the founder makes it abundantly clear that the temple was not constructed only for the spiritual benefit of the founder and his family members. So, in the face of such recital the intention of the founder to dedicate the temple for the benefit of the public is to be inferred. The contention that pooja expenses are met from the personal funds of the plaintiffs is totally unacceptable, since admittedly an extent of 5.27 acres of land endowed for the pooja expenses, has been sold away by the family members, quite against the wishes of the testator. There is a paid Archagar for performance of poojas https://hcservices.ecourts.gov.in/hcservices/ according to Agamas. There is a prakaram surrounded by a compound wall. Hence, the contentions raised in the plaint are baseless as they themselves have acted against the wishes of the testator by alienating the properties. The suit as framed is vexatious and frivolous and is liable to be dismissed as not maintainable. 4.On the above pleadings the learned trial Judge has framed two issues for trial. The 3rd plaintiff was examined as P.W.1 and Ex.A.1 to Ex.A.3 were marked on the side of the plaintiffs. An employee of the Defendant – Department was examined as D.W.1 and Ex.B.1 to Ex.B.41 were exhibited though him. After scanning the evidence both oral and documentary the learned trial Judge has come to the conclusion that the impugned order of the Commissioner, HR & CE Department in Suo-Motto Revision No.4 of 1991 dated 24.05.1995 is liable to be set aside and accordingly set aside the said order and decree the suit as prayed for. Aggrieved by the findings of the learned trial Judge, the Defendant – HR & CE Department has filed this appeal. 5.The points for determination in this appeal are as follows:- 1)Whether the findings of the learned trial Judge on the basis of Ex.B.1 – Will dated 6.6.1926 as the temple in question is a private temple thereby set aside the order of the Commissioner of HR & CE Department in Suo-Motto Revision No.4 of 2001 dated 24.5.1995 is sustainable? 2)Whether the decree and judgment of the learned trial Judge in O.S.No.720 of 1995 is liable to be set aside for the reasons stated in the memorandum of appeal? 6.Point No.1:-Before going into the merits of the case a reading fo the judgment of the learned trial Judge will go to show that only on the basis of Ex.B.1-Will dated 6.6.1926 said to have been executed by Vadamalai Pillai, the learned trial Judge has come to the conclusion that there was a dedication by the testator to the temple in question and that the intention of the testator, who had created a trust for the maintenance of the suit temple had come to a conclusion that the suit temple is a private temple and that the characteristics of the public temple is absent in respect of the suit temple, has set aside the order of the Commissioner passed in Suo-Motto Revision No.4 of 1991 dated 24.05.1995 and consequently decreed the suit declaring the suit temple as a private temple. But Ex.B.1-Will was not exhibited in accordance with law. How a Will is to be proved is enshrined under Sections 68 to 72 of the Indian Evidence Act, 1872. Not even the original Will was produced before the trial Court. Under such circumstances, the findings of the learned trial Judge on the basis of Ex.B.1-Will to arrive at a conclusion that the suit temple is a private temple, by setting aside the orders of the Commissioner of HR & CE Department in Suo-Motto Revision No.4 of 1991 dated 24.5.1995 warrants interference from this Court. The point No.1 is answered accordingly. https://hcservices.ecourts.gov.in/hcservices/ 7.Point No.2:- In view of my findings in Point No.1 I hold that the findings of the learned trial Judge in O.S.No.720 of 1995 on the file of the Court of Subordinate Judge, Erode, is liable to be set aside for the reasons stated in the memorandum of appeal. 8.In fine, the appeal is allowed and the decree and judgment of the learned trial Judge in O.S.No.720 of 1995 on the file of the Principal Subordinate Judge, Eorde, is set aside and the matter is remanded to the trial Court for deciding the issue afresh after allowing the parties to mark the original of Ex.B.1-Will in accordance with law, within three months from the date of receipt of copy of this order. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar ssv To, 1.The Principal Subordinate Judge, Erode. 2.The Section Officer, V.R.Section. High Court, Madras. +1 cc To Mr.T.Murugamanickam , Advocate, SR.53416 A.S.No.326 of 2001 mrd [co] gkg/23.10 https://hcservices.ecourts.gov.in/hcservices/