NELLOR MARTHANDAM VELLALAR AND ORS.

THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE

ENDOWMENTS AND ORS.

JULY 30, 2003

(SHIVARAJ V. PATIL AND D.M. DHARMADHIKARI, JJ.)

Religious and Charitable Endowments:

C Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959- Section 107-Conslilution of India, 1950--Article 26-Trial Court holding that suit temple a denominational temple entitled to exemption and authorities have no power to interfere with administration of temple by the Community- Firsl Appellate Court as well as High Court selling aside the order-On D appeal, Held: Practices and observance of the Community do not show that . they have common faith or profess certain religious tenet having common faith-Hence not a religious denomination-Also the Community could not establish that such denominational group has established and is maintaining and administering the suit temple-Further, the conduct of members of the community resulting in waiver of their fundamental rights-Thus, not entitled E to claim protection under Article 26 and Section 107--0rders of First Appellate Court as well as High Court upheld.

Words and Phrases:

"Religious denomination"-Meaning of F Appellants-plaintiffs liled suit for declaration that the suit temple is a denominational temple entitled to exemption under Article 26 of the Constitution and Section 107 of Tamil Nadu Religious and Charitable Endowments Act, 1959; and that the authorities had no jurisdiction to interfere with the administration of the temple by Vellala Community.

G Defendant pleaded that the suit temple is a public religious institution under the control of the Department. Trial Court decreed the suit in favour of the appellants. However, it held that the Department is entitled to exercise powers conferred on them by law for administration of the institution. First Appellate Court set aside the order holding that the H 920 I

NELi.OR MARTHANDAM VELLALAR , .. COMMR .. HINDU RELi AND CHARI. ENDOWMENTS

92 J

members of the Community do not form a religious denomination but are A merely a.sub-caste of. the Hindu religion; and that their practices and observance do not lead to the condusion that they have common faith or they profess certain religious tenet having common faith. High Court upheld the order of the First Appellate Court. Hence the present appeal.

Appellants contended that the Act gets attracted only to sectarian B temple which are public and not private in view of Sections 1(3), 6(18) and 6(20); that the suit temple belongs to Vellala Com1:rnnity; that there is one single deity; that their own distinct customs and beliefs constitute a "religious denomination" and as such their right under Article 26 and Section 107 cannot be transgressed by the authorities; that High Court C erred in holding that the members of the Community have no distinct name and common faith; that the appellants moved the Court in 1976 as soon as a non-Vellala Community man was sought to be made a trustee and that their conduct from 1965 to 1976 cannot result in a waiver of fundamental rights; and that there is no presumption that the temples are public trusts and it must be established on evidence.

Respondents contended that the First Appellate Court on reappreciation of the evidence recorded a finding of fact aginst the appellants that the institution is not a denominational one and the High Court rightly found that the order of the First Appellate Court did not E call for any interference.

Dismissing the appeal, the Court

HELD: 1. It is settled positior. in law that the words "religious denomination" take their colour from the word 'religion'. The expression "religious denomination" must satisfy three requirements, it must be collection of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual well-being - a common faith, a common organization, and designation of a distinctive name. It necessarily follows that the common faith of the community should be based on religion and in that they should have common religious tenets and the basic cord which connects them, should be religion and not merely considerations of caste or community or societal status. 1926-F-HI

2.1. In the instant case, on the basis of the evidence on record, First Appellate Court as well as the High Court found that the community is H

A not shown to be a distinct religious denomination, group or sect so as to be covered by Article 26 of the Constitution. Material on record was not sufficient to show that the members of the Community inUially established the tempi~. High Court found that there was no evidem.e to prove that the members of the Community had any common religiom; tenets peculiar to themselves other than those who are common to th1! entire Hindu B Community and that the materials placed by appellants st1ow that during certain period members of their community were playing a major role in the administration of temple. Further, it was necessary for the appellants to establish that the said denomination group has established and is maintaining and administering the suit temple to take th1! protection of C Article 26 of the Constitution and Section 107 of the Act. Th us, High Court rightly affirmed the findings on facts recorded by the First .4.ppellate Court against the appellants. [927-A-B, DI

2.2. Appellants did not challenge when the temple w~1s taken under the control of the Department in year 1965. Also, it did not file objections D for appointment of non-hereditary trustees not restricting te:.• the members of the community only. Then regular applications were invited for appointment of non-hereditary trustees. Five persons includi.ng appellants 2 and 3 were appointed non-hereditary trustees by resol 0'.ltion. On the expiry of the term, fresh notices were issued calling for app1'ications from E desiring persons to be appointed as non-hereditary trucitees and no restriction was made confining applications to the members of the community only. 5th appellant was appointed as trustee. A 1>pellants 2, 3 and 5 were appointed by the Board and were not chosen representatives of the community. Thus, the appellants were estopped by their c1mduct from contending that the suit temple is a denominational one :md that they F have any inherent right to be in management of the temple. As such they were not entitled to claim any protection under Artie le 26 of the Constitution or under Section 107 of the Act. [927-H; 928-A-El

Gurpur Gunni Venkataraya Narashima Prabhu and Ors. '. B.C. Achia, G Asstt. Commissioner, Hindu Religious and Charitable Endowment, Mangalore and Anr., AIR [1977] SC 1192, distinguished.

S.P. Mittal v. Union of India and Ors., AIR [1983[ SC l; The Commissioner, Hindu Religious Endowments, Madras v. Sri l.akshmindra Thirtha Swamiar of Sri Shirur Matt, AIR [1954] SC 282 and K. Eranna and H Ors. v. Commissioner for Hindu Religious and Charitable Endowments,

NELLOR MARTilANDAM VELLALAR "· COMMR., HINDU RELi. AND CHARI. ENDOWMENTS [PATIL, J.) 923

Bangalore and Ors. AIR [19701Mysore191, referred to.

3. When there is a finding that the suit temple is not a private temple, it cannot be said that the Act gets attracted only to sectarian temples which are public and not to sectarian temples which are private in view of Sections 1(3), 6(18) and 6(20) of the Act.[927-G-H)

4. With regard to the submission that there is no presumption that the temples are public trusts and it must be t::ta>, Hshed on evidence, in the instant case, this finding of fact is not recorded merely by raising a presumption but, on the basis of evidence availabh on record. (927-E-F)

Mundacheri Koman v. Thachangat Puthan Vitti/ Achuthan Nair and Ors., AIR (19341PC230; The Commissioner, Hindu Religious and Charitable Endowment (Administration Deptt.), Madras v. P. Vel/appan Nair, [2001) 3 L. W. 327, referred to.

CVIL APPELLATE JURISDICTION: Civil Appeal No. 175of1997. D

From the Judgment and Order dated 18.4.1992 of the Chennai High Court in S.A. No. 577 of 1983.

S. Balakrishnan, M.K.D. Namboodiri, N. Ratinaswamy, Abhay Kumar, S.N. Jha, Gopala Krishnan for the Appellants.

E ··

V. Balaji, for P.N. Ramalingam for the Respondents.

The Judgment of the Court was delivered by

SHIVARAJ V. PATIL, J. The appellants filed suit for declaration that p the suit temple is a denominational temple and that the defendants I and 2 have no jurisdiction to appoint the third defendant as fit person. The trial court decreed the suit. The first appellate court reversed the judgment and decree passed by the trial court and dismissed the suit. The High court in second appeal upheld the judgment and decree passed by the first appellate ~~ G

The High Court in the impugned judgment has narrated the facts in sufficient details based on the pleadings of the parties and the material that was placed on record. It is not necessary to state them again. However, to the extent they are relevant and necessary in the light of the contentions advanced H

A on behalf of the parties, we notice them hereunder.

The case of the plaintiff before the trial court was that the first plaintiff is a denominational temple entitled to exemption as provided under Article 26 of the Constitution of India and Section I 07 of the Tan,1il Nadu Hindu Religious and charitable Endowments Act, 1959 (for short 'the Act'); the B temple is ln Nalloor village and is known as Sree Uchini Makali Amman Temple, built on an extent of 17 cents in S.No. 1593 and that the entire extent is owned by the Vellala Community of Marthandam. The Vellalas residing in Marthandam are a collection of individuals professing Hindu faith; the ancestors of the members of the community constituting corporate C body founded the temple in the land purchased by the members of Vellala

Community. The plaintiff further claimed that the members of Vellala Community observed special religious practices and beliefs which are integral part of their religion and that the front mandappam of the Sanctorium is open to access only to members of their community and none-else. Outsiders can offer worship from the outer compound.

D The first defendant filed written statement contending that the first plaintiff-temple is a public religious institution under the control of HR&CE Department; it was brought under the control of the Departme;1t in the year 1965; the origin of the temple or the name of its founder is n9t known; the properties owned by the temple stand in its name; an extent in S.No. 1593 E has been leased out for a cinema theatre and the rent due forms the main source of income for the temple; the public also contribute in the hundiyal kept in the temple; the temple is not a denominational as claimed by the . ' plaintiffs. It is the further case of the first defendant that the Dejpartment has been appointing non-hereditary trustees for the temple and the management p vests with the trustees so appointed from time to time by the D1partment. In the year 1965 when the temple was brought under its control, th~ Department called for objections for appointment of non-hereditary truste~:s and there was no objection to the proposal and regular applications were invited for appointment of non-hereditary trustees. Five persons including 1'admanabha

Pillai and Subramania Pillai (plaintiffs 2 and 3) volunteered for the G appointment; the Area Committee by its resolution dated 31.1.1966 appointed those persons as non-hereditary trustees; further in a special meetiqg convened by the Inspector of the Department, one Manickavasakam Pillai iwas elected as Chairman of the Board of trustees and the said resolution was approved by the Assistant Commissioner (defendant no. 2) by his order d1tted 7.3.66.

H After the expiry of the tenure of office of those persons, fresh n )(ices were

NELLOR MARTHANDAM VELLALAR ,. COMMR., HINDU RELi. AND CHARI. ENDOWMENTS [PATIL, J.J 925

issued calling for applications from desiring persons to be appointed as non- A hereditary trustees to fill up vacancies in the Board. Plaintiffs 2 to 5 were estopped by their conduct from contending that the suit temple is a denominational one and that the plaintiffs have any inherent right to be in management of the said temple.

The trial court on the basis of the pleadings of the parties and , the B evidence let in, in support of their respective claims held that the suit temple is a denominational temple entitled to protection as claimed and it is not a public religious institution; at the same time, it was held that Department is entitled to exercise such powers which are conferred on them by law in regard to the administration of the institution and that the authorities had no C power to appoint fit person so as to interfere with the administration of the temple by Vellala Community. The Subordinate Judge in the first appeal held that the members of Vellala Community do not form a religious denomination, but they are merely a sub-caste of the Hindu religion; their practices and observance do not lead to the conclusion that they have common faith or they profess certain religious tenet having common faith. He also took the view D that several features relied upon by the plaintiffs were not sufficient to identify the institution as a denominational one. In doing so, the first appellate court relied upon the principles laid down in the decisions reported in S.P. Mittal

v. f-!nion of India and Ors., AIR 1983 SC 1 and The Commissioner, Hindu Religious Endowments, Madras, v. Sri Lakshmindra Thirtha Swamiar of Sri E Shirur Matt, AIR (1954) SC 28. In the second appeal, the learned Judge of the High Court by a well-considered order which is Impugned in this appeal concurred with the views expressed by the first appellate court. The learned Judge on a clear analysis of the legal position expressed and explained in various decisions, touching the question in controversy and applying them to the facts of the present case in the light of the rival claims, upheld the F judgment and decree passed by the first appellate court.

Learned counsel for the appellants contended that-

(I) Under Section 1(3) of the Act, the institution concerned should be public religious institution; the religious institution is defined G in Section 6(18) and temple is defined in Section 6(20) which includes a sectarian temple; a sectarian temple could be a public or private; the Act gets attracted only to sectarian temples which are public and not which are private.

(2) The suit temple belongs to Vellala Community and there is one H

single deity, namely, the Uchini Mal:ali Amman and that their own distinct customs and beliefs constitute a ''religious denomination" and as such their fundamental right under Article 26 of the Constitution and their right under Section I 07 of the Act, cannot be transgressed by the authorities under the Act. In support of this submission, he placed reliance on the decisions of this Court in Gurpur Gunni Venkataraya Narashima Prabhu and Ors. v. B.C. Achia, Asstt. Commissioner, Hindu Religious and Charitable Endowment, Mangalore and Anr., AIR (1977) SC

1192 and K. Eranna and Ors. v. Commissioner for Hindu Religious and Charitable Endowments, Bangalore and Ors., AIR

(1970) Mysore 191.

(3) The High Court committed an error in holding that the members of Vellala Community have no distinct name and common faith.

(4) Plaintiffs moved the court in 1976 as soon as a non- Vellala

Community man was sought to be made a trustee; the conduct of plaintiffs between 1965 to 1976 cannot result in a waiver of fundamental rights.

In opposition, the learned counsel for the respondents made submissions supporting the impugned judgment reiterating the submissions that were made before the High court. He further contended that the first appellate court on E a re-appreciation of entire evidence on record has recorded a finding of fact against the plaintiffs as to nature of temple supported by good reasons; the High Court rightly found that the judgment and decree of the first appellate court did not call for any interference. Under the circumstances, according to him, the impugned judgment deserved to be maintained.

F It is settled position in law, having regard to the various decisions of this Court that the words "religious denomination" take their colour from the word 'religion'. The expression "religious denomination" must satisfy three requirements - (I) it must be collection of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual well- G being, i.e., a common faith; (2) a common organisation; and (3) designation of a distinctive name. It necessarily follows that the common faith of the community should be based on religion and in that they should have common religious tenets and the basic cord which connects them, should be religion and not merely considerations of caste or community or societal status. On H the basis of the evidence placed on record, the first appellate court as well

NELLOR MARTHANDAM VELLALAR ,. COM MR .. HINUU RELL AND CHARI. ENDOWMENTS [PATIL. J] 92 7

as the High Court found that Vellala Community is not shown to be a distinct A religious denomination, group or sect so as to be covered by Article 26 of the Constitution. Further, it was necessary for the plaintiffs to establish their claim in respect of the temple that the said denomination group has established and is maintaining and administering the suit temple to take the protection of Article 26 of the Constitution and Section 107 of the Act High Court found, B after meticulous and careful consideration of material that there was no evidence to prove that the members of the Vellala Community have been shown to have any common religious tenets peculiar to themselves other than those who are common to the entire Hindu community. The High Court in the impugned judgment has observed that the materials placed by the appellants at best may go to show that during certain period members of their community C were playing a major role in the administration of temple. The learned Judge of the High Court also found that the material on record was not sufficient to hold that the members of Ve!lala Community established the temple in question, nor was there proof of initial establishment of the temple by them.

The first appellate court held that the materials on record were not sufficient in law to show that Ve!lala Community initially established the temple. Thus, D the first appellate court on facts recorded finding against the plaintiffs which findings were affirmed by the High Court and rightly so in our opinion. Here itself, we may notice one more ancillary submission of the learned counsel for the appellants that there is no presumption as regards the temples in Marthandam that they are public trusts and they must be established so, on E evidence. This submission was made taking support from two decisions (I)

Mundacheri Koman v. Thachangat Puthan Vitti/ Achuthan Nair and Ors., A.LR. (1934) PC 230 and 2 The Commissioner, Hindu Religious and Charitable Endowment (Administration Deptt.), Madras v. P. Vel/appan Nair,

(2001) 3 L.W. 327. The finding of fact in the case on hand is not recorded merely by raising a presumption. On the other hand, finding of fact is recorded F on the basis of evidence available on record. Hence, these two decisions do not advance the case of the appellants.

In the light of finding of fact recorded by the first appellate court as affirmed by the High Court, the argument sought to be made that the Act gets G attracted only to sectarian temples which are public and not to sectarian temples which are private in view of Sections I (3), 6(18) and 6(20), do not help the appellants when there is a finding that it is not a private temple.

Added to this, the temple was taken under the control of the Department in the year I 965. That was not challenged by the appellants; Department called

for objections for appointment of non-hereditary trustees not restricting to H

A members of Vellala Community only; then also no objections were filed; thereafter regular applications were invited for appointment of non-hereditary trustees not from the members of Vellala Community only; five persons including appellants 2 and 3 who volunteered for appointment as nonhereditary trustees were appointed by the resolution dated 31.1.1966; further in a special meeting conveyed by Inspector of the Department, one B Manickavasakam Pillai was elected as Chairman of the Board and the said election was approved by the Assistant Commissioner of the Department on 7.3.1966; on the expiry of the tenure of office of trustees, fresh notices were issued calling for applications from desiring persons to be appointed as nonhereditary trustees to fill up four vacancies in the Board. We specifically C asked learned counsel for the appellants whether in the notices issued inviting applications for appointment as non-hereditary trustees, any restriction was made confining applications to the members of the Vellala Community only.

The learned counsel fairly stated that in the notices, no such restriction was made. Again in 1972, as noticed in the impugned order, 5th appellant was

D appointed as trustee. The appellants 2, 3 and 5 were appointed by the Board and they were not chosen representatives of the community. Under the circumstances, the claim of the appellants was rightly negatived looking to their conduct. Hence, it follows that the appellants were estopped by their conduct from contending that the suit teinple is a denominational one and that the plaintiffs have any inherent right to be in management of the said E temple. As such they were not entitled to claim any protection under Article 26 of the Constitution or under Section I 07 of the Act.

The decision in Gurpur Gunni Venkotaraya /Varashima Prabhu and Ors. (supra) in our view does not support the case of the appellants. That decision was rendered on .the facts of that case as observed in the impugned F judgment. In that case, it was found on evidence that the temple was founded by 37 Goud Saraswat Brahmin families of Gurpur that the trustees managing the temple belonged always to the said Community, the landed properties owned by the temple had all been endowed by members of the said community; there was no reliable evidence of endowment of any immovable property by G any person outside the Community. Further in that case, the Subordinate Judge found that the defendants' witnesses on whom the defendants relied to prove that the temple was dedicated to the general Hindu community did not claim right of worship in the temple. But in the present case with which we are concerned, facts are different and findings of the fact recorded go against the appellants.

NELLOR MARTHANDAM VELLALAR >. CDMMR., HINDU RELi. AND CHARI. ENDOWMENTS [PATIL. J.] 929

The learned Judge in the impugned judgment referred to the case of K. A Eranna and Ors. (supra) and held that the observations made in that decision are too wide and cannot be said to be in conformity with the catena of decisions of this Court as well as the High Court of Madras which are referred to in the impugned judgment itself.

Thus, viewed from any angle, we do not find any merit in this appeal. B Consequently, it is dismissed. No costs,

NJ.

Appeal dismissed.