Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20.11.2007CORAM :THE HON’BLE MR. JUSTICE S.TAMILVANANA.S.No.33 of 1996 A.K.Parvathambal .... Appellant/Plaintiffvs.

Dy. Commissioner H.R. & C.E., Admn., Department, Coimbatore.

The Commissioner H.R. & C.E., Admn., Department, Madras.

Sri Venugopalaswamy Temple rep. by its Executive Officer (The Executive Officer Sri Villingiri Andavar Temple) Killigoundanpalayam P.O., Coimbatore T.K. .... Respondents/DefendantsAppeal filed against the Judgment and Decree dated 29.09.1995made in O.S.No.13 of 1989 on the file of the Principal Sub Judge, Coimbatore. For Appellant : Mr.W.C.ThiruvengadamFor Respondents : Mr.M.R.Murugesan, Spl.G.P. H.R.& C.E., for R1 and R2 Mr.R.T.Doraisami for R3JUDGMENTAggrieved by the Judgment and Decree, dated 29.09.1985 made inO.S.No.13 of 1989 on the file of the Principal Subordinate Judge, Coimbatore, the plaintiff in the suit has preferred this appeal.2. It is seen that the suit was filed seeking to declare that Sri Venugopalasamy Temple, situated in Kaliyagoundampalayam, Coimbatore Taluk is not a religious institution within the purviewof Act 22 of 1959 and to set aside the orders passed by the secondrespondent / D2 and for consequential injunction and other relief. https://hcservices.ecourts.gov.in/hcservices/

3. Considering the oral and documentary evidence available onrecord, the trial court has dismissed the suit. Aggrieved by which, this appeal has been preferred by the plaintiff in the suit.

Mr.W.C.Thiruvengadam, learned counsel appearing for theappellant would contend that the trial court has not considered thestand taken by the appellant / plaintiff and scope of the suit, asper Section 63 (a) of the Tamil Nadu Hindu Religious and CharitableEndowment Act, 1959 (herein after referred to as the Act), todetermine the private character of the said temple.

It is not in dispute that the appellant was declared as Hereditary trustee of the said temple in question, as per Section63 (b) of the Act. The appellant herein had filed an application inR.C.No.2928 of 1984 before the first respondent to declare that SriVenugopalasamy temple is not a religious institution, as perSection 63 (a) and also as defined in Section 6 (18) r/w Section 6(20) of the Act. As the application was dismissed by the firstrespondent, Deputy Commissioner, HR & CE, the appellant preferredan appeal in A.P.No.49 of 1984, which was also dismissed by thesecond respondent, by his order, dated 11.08.1998, which reads asfollows :

The appellant, having acquiesced to theprevious proceedings, which have become finalin law, cannot now raise a new plea to theeffect that the temple is not a ‘ReligiousInstitution’ as defined in Section 6 (18) readwith Section 6 (20) of the Tamil Nadu H.R. &C.E. Act 22 of 1959. Therefore, the appellantis estopped to raise the issue especially whenthe appellant was a party in the SchemeProceedings in O.A.64/1975 before the DeputyCommissioner, which was also an alternativeprayer under the Tamil Nadu H.R. & C.E. Act 22of 1959.

Aggrieved by the said order, the appellant herein filed thesuit before the trial court under Section 70 of Tamil Nadu H.R. &C.E. Act. The trial court has held that since the relief sought forunder Section 63 (b) of the Act was already granted, holding thatthe appellant as Hereditary trustee, the appellant is not entitledto the relief claimed under Section 63 (a) of the Act. As per thefindings of the court below, since alternative prayer sought forwas already granted, the other prayer would not be available forthe appellant herein and accordingly, the appeal is dismissed bythe court below. It is seen that the trial court has also gone intothe question of facts, based on evidence while rejecting the claimof the appellant. https://hcservices.ecourts.gov.in/hcservices/

Mr.W.C.Thiruvengadam, learned counsel appearing for theappellant contended that the relief already granted under Section63 (b) of the Act would not preclude the appellant from seekingrelief under Section 63 (a) of the Act and in support of hiscontention, he relied on the following decisions :1.P.Kathavan Servai vs. Rahima Beevi and others, 1989 TLNJ 652. Somasundaram Chetty vs. Ganga Bai Ammal, 1975 MLJ 1523.H.R. & C.E (Admn) Department vs. Kanniappa Naicker, 1989 MLJ5224.Commr. Of Hindu Religious Endowments vs. B.Samitra, 1976 (2)SCC 2778. In the decision, P.Kathavan Servai vs. Rahima Beevi andothers, reported in 1989 TLNJ 65, the Full Bench of this Court hasheld as follows :

The alternative reliefs would include therefund of any earnest money or deposit paid ormade by the plaintiff. The grant of thealternative relief would arise only in case theplaintiff’s claim for specific performance isrefused. When the plaintiff asks for thealternative relief, there is no legalpresumption or assumption that he gives up themain or primary relief of specific performanceof the contract. The plaintiff primarily wantsthe relief of specific performance of contractand pleads that in case that primary relief isto be refused he should be granted thealternative relief. It does not mean that whenthe primary relief is denied to the plaintiff, he could not be stated to be an aggrievedperson in respect of the decree of the firstcourt, denying him that relief on the reasoningthat he has obtained the alternative relief.

In Somasundaram Chetty vs. Ganga Bai Ammal, reported in1975 MLJ 152, this Court has held that the principle of resjudicata could not be invoked so as to bar the petition filed under Section 63 (a) and (b) of the Act, 1959 for a declaration that thesuit temple was a public temple inasmuch as in the earlier petitionthe petitioner therein had not impleaded anybody as a party andthere was no scope or occasion for anybody else contesting the caseof the petitioner at that stage.

In the decision, H.R. & C.E (Admn) Department vs. Kanniappa Naicker, reported in 1989 MLJ 522, the Division Bench ofthis Court, while dealing with the alternative relief under Section63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act,1959, has held that there is no indication in Section 63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, https://hcservices.ecourts.gov.in/hcservices/ that one or the other of the relief could be asked for only in thealternative and even if asked for in the alternative, the party whoobtains either of the alternative reliefs could not express afurther grievance with reference to the other relief or reliefswhich though claimed by him was denied to him. It has been furtherheld that it must be taken to be settled that even when theplaintiff asked for alternative reliefs and that there is no legalpresumption or assumption that having obtained one of thealternative reliefs, he gives up the main or the primary or theother relief and he must be satisfied with what he has got asalternative reliefs asked for by him. In other words, it does notmean that when the main or the primary or the other relief isdenied to him, he could not be stated to be an aggrieved person ofsuch denial, on the ground that he has obtained the alternativerelief.

Per contra, Mr.M.R.Murugesan, the learned SpecialGovernment Pleader appearing for H.R. & C.E., the respondents 1 and2 and Mr.R.T.Doraisami, learned counsel appearing for the thirdrespondent contended that the institution in question was declaredas public temple in the earlier Proceedings in O.A.17/60, in which, the appellant was the petitioner and against the order, appeal waspreferred before the Subordinate Judge in O.A.No.135/63 and thenA.S.No.775 of 1967 before this Court. According to them, theappellant herein has not agitated the declaration of the suittemple as public temple and that she had accepted to frame a schemeunder Section 64 (1) of the Act, for proper administration of thetemple and therefore, the appellant cannot raise this plea statingthat the suit temple is not a religious institution before this Court, since the same is already decided by this Court. In supportof their contention, they have relied on the decision, TheCommissioner H.R. & C.E., vs. Arulmighu Arasadi Karpaga VinayagarTemple, reported in 2003 (3) CTC 607, wherein the Division Bench ofthis Court has held that in view of the character of the templehaving been decided in the earlier suit, the subsequent claim thatit is a private temple would be barred by the principle of resjudicata.

It is relevant to refer to Section 63 (a) & (b) of the Act, 1959, which reads as follows :

63. Joint Commissioner or Deputy Commissionerto decide certain disputes and matters –Subject to the rights of the suit or appealhereinafter provided, the Joint Commissioner orthe Deputy Commissioner, as the case may be, shall have power to inquire into and decide thefollowing disputes and matters : -(a)whether an institution is a religiousinstitution ; https://hcservices.ecourts.gov.in/hcservices/ (b)Whether a trustee holds or held officeas a hereditary trustee.

The Division Bench of this Court in the decision reportedin 1989 MLJ 522 (cited supra), has categorically held that there isno legal bar in seeking the relief under Section 63 of the TamilNadu Hindu Religious and Charitable Endowments Act, 1959, on theground of alternative relief granted already and to hold that theparty seeking the relief had already given up the main or theprimary relief that was available under the Act. Further, therelief under Section 63 (a) relates to the question of determiningwhether a particular institution is a Religious Institution or not, whereas Section 63 (b) of the Act deals with the question, whetherthe trustee holds or held office as a hereditary trustee or not andtherefore, both the relief or any one of the reliefs in thealternatice can be sought for. Merely because one relief wasgranted, it would not preclude the person claiming the otherrelief, on the ground that alternative relief was already granted.

In the instant case, it is not in dispute that as per theearlier proceedings relating to recognition of right of theappellant, to hold the office as hereditary trustee of the temple, scheme (O.A.No.64/1975) was framed by the Deputy Commissioner, thefirst respondent, on the directions of the Supreme Court, the saidfact is available in the order, dated 11.08.1988 passed inA.P.No.49/84 by the second respondent herein and the same is not indispute. Admittedly, the matter went up to the Supreme Court todecide the rights of the parties to the proceedings under theprovisions of the Act. 15. In the aforesaid order marked as Ex.A.1, it has beenstated that the appellant without impleading necessary parties tothe application has filed once again an application under Section63 (a) of the Act to decide the nature of the temple. Admittedly, the said parties to the earlier proceedings were not arrayed asdefendants in the suit, for the reasons best known to theappellant. It is seen that the appellant as P.W.1 has deposed inher evidence before the trial court that one Vaithama Gounder wasthe founder of the temple and he had constructed the superstructurefor the temple in his garden land and also performed poojas for thedeity and after his demise, his daughter Smt. Ramathal erectedgopuram for the temple and also performed poojas in the temple anddied in the year 1952. Admittedly, the appellant is not the directlegal heir of the said Smt. Ramathal. According to the appellant, Smt. Ramathal died issueless, but had adopted the husband of theappellant, Krishnasamy Gounder, for which the appellant has notproduced any legally acceptable evidence. According to theappellant, in the year 1958, her husband, Krishnasamy Gounder diedand she became the legal heir of her husband. Even if the appellantcould have been the sole legal heir of her husband Krishnasamy https://hcservices.ecourts.gov.in/hcservices/ Gounder, without establishing that her husband had been the adoptedson of Smt. Ramathal, she cannot maintain her plea of absoluteright to the temple in question.

The appellant herein as P.W.1 has admitted that she isclaiming the right only as per the Will, dated 09.06.1946 said tohave been executed by Smt. Ramathal in favour of her husband, Krishnasamy Gounder, but admittedly no such Will has been producedand marked as document before the trial court for the reason bestknown to the appellant. At one place of her evidence, she wouldstate that she produced the Will, but as per the plaint, the saidWill, alleged by her, dated 09.06.1946 was not even produced. Even, as per the judgment of the trial court, it is seen that neither shehad produced any Will nor marked it as a document before the trialcourt, though the appellant has claimed right only through analleged Will under Section 63 (a) of the Act to declare that it isher private temple. It is quite clear that there is no prima faciematerial available in this case to show that the suit temple is aprivate temple belongs to the appellant herein.

Mr.W.C.Thiruvengadam, learned counsel appearing for theappellant would contend that the question has not been decided inthe earlier proceedings, whether the temple is a private temple orpublic temple and therefore, the relief sought for by the appellantwould not be affected by principles of res judicata.

In Tamil Nadu Hindu Religious and Charitable EndowmentsAct, 1959, Section 6 (18) deals with the definition of religiousinstitution, the same has been amended as per Tamil Nadu Act 10 of2003, which reads as follows :“ 6 (18) “religious institutions” means a math, temple or specific endowment and includes, -(i) a samadhi or brindhavan; or(ii)any other institution established ormaintained for a religious purpose.” As per this amendment, math, temple or specific endowments wouldcome under the definition of “religious institutions”, whichincludes samadhi or brindhavan or any other institutionestablished or maintained for a religious purpose. As per thisamendment, even the aforesaid institutions have acquired the statusof religious institution. In order to bring those institutionsunder the control of Hindu Religious and Charitable EndowmentsDepartment, the Government have decided to include the places ofsamadhi, brindhavan and other institutions established ormaintained for religious purpose. Here, in the instant case, P.W.1has admitted that for about 40 to 60 acres of land had been left bythe founder Vaithama Gounder and his daughter Smt. Ramathal toperform the charitable endowment. Admittedly, it is a huge propertyavailable to maintain the suit temple and perform pooja. Therefore, as amended by Tamil Nadu Act 10 of 2003, under Section 6 (18) of https://hcservices.ecourts.gov.in/hcservices/ the Act, the said temple having a huge property for its maintenancewould certainly come under the purview of the religious institutionin the absence of any direct legal heir. The earlier decisionsreferred to by the learned counsel appearing for the appellant arenot applicable in view of the aforesaid subsequent amendment in theyear 2003.

As contended by Mr.M.R.Murugesan, the learned SpecialGovernment Pleader appearing for the respondents 1 and 2 andMr.R.T.Doraisami, learned counsel appearing for the thirdrespondent, it is seen that the trial court has given a detailedfinding at paragraph 13 and 15 of the impugned judgment, on thequestion of facts and held that the appellant / plaintiff could notclaim any right under Section 63 (a) of the Act.20. As found by the court below, it is seen that the appellanthas admitted that she did not know who had originally constructedthe superstructure of the suit temple and also maintained the sameby performing poojas. She has not produced any document to showthat the suit temple is a private temple belongs to her or to herhusband Krishnasamy Gounder. The scheme (O.S.No.64 of 1975) framedby the Deputy Commissioner on the directions of the Apex Court andother connected records relating to the temple were not produced bythe appellant, apart from the alleged Will, through which theappellant is seeking the relief of declaration to declare that thetemple as a non-religious institution, as per Section 63 (a) of the Act.