The Commissioner H.R. & C.E., Admn., Department, Nungambakkam High Road, Chennai – 34 v. N.Krishnamoorthy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11.02.2008CORAM :THE HON’BLE MR. JUSTICE S.TAMILVANANA.S.No.285 of 1997The CommissionerH.R.& C.E., Admn., Department,Nungambakkam High Road,Chennai – 34. ... Appellant/Defendantvs.N.Krishnamoorthy ... Respondent/PlaintiffAppeal filed against the Judgment and Decree, dated30.06.1994 made in O.S.No.101 of 1987 on the file of theSubordinate Judge, Nagapattinam.For Appellant: Mr.R.Murugesan, Spl.G.P. H.R. & C.E.,For Respondents: Mr.V.K.Vijayaraghavan JUDGMENTThis appeal is directed against the Judgment and Decree,dated 30.06.1994 made in O.S.No.101 of 1987 on the file of theSubordinate Judge, Nagapattinam. 2. The appellant herein was the defendant in the suit beforethe trial court. The respondent filed the suit stating that hisgrand father one Thiyagarajan @ Narayanan had two sons, namely,T.Nagarajan, father of the plaintiff and one lateDakshinamoorthy, who had premature death, due to small pox.According to the respondent / plaintiff, the dead body of lateDakshinamoorthy was buried under a 'Samadhi' erected inR.S.No.118/8 in Koravapulam village, Tiruturaipundy Taluk,wherehe was entombed. 3. According to the respondent / plaintiff, originally theSamadhi was housed in a thatched shed and later pucca masonrystructures were built up, neither the public in general nor thevillagers in particular are being allowed to worship the Samadhi https://hcservices.ecourts.gov.in/hcservices/ and as such, the same had never been thrown open to the public.There was no 'Pragaaram', 'Dwajasthambam', 'Kodi-maram','hundial' or even any 'Vigraham' (idol) embedded or otherwisecapable of being taken in possession and there is no contributionor collection of funds of any kind for sustenance andmaintenance of the Institution. According to him, his grandfather late Thiyagarajan had set apart 6 acres 38 cents of landin the village of Koruvapulam by a settlement deed, dated30.11.1960 for the maintenance of the Samadhi. 4. It is not in dispute that as per the settlement deed, thetestator had made restrictions on his son Nagarajan and othersclaiming right only to perform the service of feeding the poorduring the month of karthigai and to do other charities from andout of the the income of the property. In fact, they can performthe charity, without any power of alienation or creating chargesover the property dedicated for the aforesaid object.5. According to the respondent herein, the endowment wascreated only to perform poojas in the Samadhi of Dakshinamoorthy,the younger son of the testator and accordingly the institutionis neither a Madam, nor a Temple as defined in the Tamil Nadu H.R& C.E., Act 22 of 1959. According to the plaintiff, the buildingsfor the institution were constructed in the patta land inS.No.118/8 and the lands stand registered in the name of"Dakshinamoorthy Madam".6. According to the respondent / plaintiff, though apetition under Section 63(a) of the H.R. & C.E. Act (herein afterreferred to as the Act) before the Deputy Commissioner, H.R. &C.E. Department, Thanjavur in O.A.No.5/82 was filed by therespondent, seeking to declare that the institution is not areligious institution, as defined under Section 6 (18) of theAct, the same was dismissed, declaring that the institution is atemple of Lord Sri Dakshinamoorthy, as per Section 6(2) of theAct. According to the respondent, there is no predhishtai(installation) of any Vigraham (Idol) of Lord Dakshinamoorthy inthe institution. Subsequent to the aforesaid order, appeal waspreferred under Section 69(2) of the Act in C.No.119362/86 to setaside the order of the Deputy Commissioner, H.R. & C.E.,Department, Thanjavur, dated 19.03.1983 in O.S.No.5/82. Theappeal was also dismissed by the Commissioner, H.R. & C.E.,Department, Chennai, the respondent herein. Aggrieved by which,the respondent / plaintiff filed a statutory suit under Section70 of the H.R. & C.E., Act (22 of 1959).7. Per contra, the appellant, as defendant has stated thatthe institution is known as Dakshinamoorthy Madam (Math),Kuruvapulam in R.S.No.111/8 in an extent of 0.07 cents, which https://hcservices.ecourts.gov.in/hcservices/ belongs to the math and the father of the plaintiff Nagarajan wasin management of the institution. According to the appellant, itis a math as defined under Section 6 (13) of the Act andDakshinamoorthy Madam, Kuruvapulam village is a religiousinstitution, as defined under Section 6 (18) of the Act and thatthe application made by the father of the plaintiff under Section63(a) of the Act before the Deputy Commissioner, H.R. & C.E.,(Admn) Department, Thanjavur in O.A.No.5/82 was dismissed on19.03.1983. However, appeal remedy was not available underSection 69(1) of the Act. 8. According to the appellant, the order passed by theDeputy Commissioner in O.A.No.5/82 holding that the institutionin question is a temple, as defined under Section 6(20) of theAct has became final. As per the terms of the settlement, dated30.11.1960 executed by the original founder of the institution,late Thiyagarajan, the land , an extent of 6.38 acres worth aboutRs.6,000/- in 1960 was dedicated in favour of the institutionwithout any reservation. The appellant has denied the contentionof the respondent that it was a Samadhi of Dakshinamoorthy, thealleged second son of the testator and contended that the founderlate Thiyagarajan was a devotee of Lord Shiva and his incarnationof Lord Sri Dakshinamoorthy swamy, faces south in all Shivatemples. In the settlement deed, his ardent faith ofDakshinamoorthy has been indicated and he also wanted to performKumbabishekam, which is not performed in any Samadhi, other thana public religious institution and therefore, according to theappellant, the institution has to be held as a public temple, asper Section 6 (20) of the Act.9. The point for determination in this appeal is :1) Whether the decision of the Court below in decidingthe suit institution not religious temple, as defined underSection 6(18) of the Act is legally sustainable ?2) Whether the appeal has to be allowed ? 10. The contention of the respondent herein is that thetestator had two sons, Dakshinamoorthy, younger son of thetestator had a premature death, due to small pox and a Samadhiwas constructed at the place where the body of saidDakshinamoorthy was buried and for getting spiritual salvationfor the family, the said Samadhi was originally housed in athatched shed and later on in a pucca masionary structure, as perthe settlement deed, dated 30.11.1960, executed by the saidtestator. 11. Mr.R.Murugesan, learned Special Government Pleaderappearing for the appellant, contended that there is no evidenceon the side of the respondent / plaintiff to show that there was https://hcservices.ecourts.gov.in/hcservices/ a son by name Dakshinamoorthy to the testator Thiyagarajan and hedied due to small pox.12. As contended by the learned counsel for the appellant,had the settlement been executed in order to perform thithi andother rituals at the alleged Samadhi, at least in Ex.A.1,settlement deed, the settlor could have stated the name of hisdeceased son Dakshinamoorthy and the details about theperformance of thithi to his demised son. But admittedly, no suchrecital is available in the settlement deed.13. Learned Special Government Pleader, H.R. & C.E., drewthe attention of this Court further to page number 2 of Ex.A.1,settlement deed, wherein it has been clearly stated that theproperty of 6 acres and 38 cents in R.S.No.118/8 was dedicatedfor the purpose of constructing a pucca building for theinstallation of Dakshinamoorthy deity and to perform abishekamand daily pooja, rituals and deeparathana to the deity.14. As per this settlement, the settlor has clearly statedthat he has dedicated the property for Dakshinamoorthy Madam(Math) to perform the charity. In the settlement deed, he hasfurther stated that while he was executing the settlement deed,the Madam was functioning in a thatched shed and it has to beconverted into a brick construction and for every year during themonth of karthigai, poor feeding shall be performed from theincome of the property. He had been doing the charity during hislife time and after his demise, his son Nagarajan and after him,his eldest male descendant should perform the charities, withoutany right of alienation, mortgage or other encumbrance on theproperty dedicated for the Madam.15. As per Ex.A.2, certified copy of the order passed inO.A.No.5/82 by the Deputy Commissioner, H.R. & C.E. (Admn.)Department, Thanjavur, dated 19.03.1983, it is seen that apetition had been filed by T.Nagarajan, father of the respondent,under Section 63(a) of the Act, seeking for a declaration thatthe suit institution was not a religious institution, as definedunder Section 6(18) of the Act. The said petition was dismissedand as per the order, the Deputy Commissioner, H.R. & C.E., hasdeclared that the suit institution, Sri Dakshinamoorthy Temple, apublic temple, as defined under Section 6(20) of the Act. It isseen from the order that only after a detailed enquiry, afterproviding reasonable opportunity, the said order has been passed.16. On the side of the respondent / plaintiff, P.Ws.1 and 2were examined, Ex.A.1, settlement deed and also Ex.A.2, kistreceipt were marked, wherein the Deputy Commissioner has foundthat there was no recital in the settlement deed with reference https://hcservices.ecourts.gov.in/hcservices/ to any Samadhi of Dakshinamoorthy, as alleged by the respondentherein. Had the settlement deed been executed to perform annualthithi to the alleged deceased Dakshinamoorthy, atleast in thesettlement deed, there could be some reference with regard toGurupooja or thithi to be performed for the deceased. It is seenthat nowhere in the document, the settlor has stated anythingabout his alleged son Dakshinamoorthy, as stated by therespondent / plaintiff. The word Samadhi is also not available inEx.A.1, settlement deed. The oral evidence adduced by P.Ws.1 to 3saying that the suit property, a Samadhi seems to be an imaginarystory without any acceptable evidence, which is totally contraryto the averments of Ex.A.1.17. In the settlement deed, Ex.A.1, the settlor has clearlystated that at the time of executing the settlement,Dakshinamoorthy Madam was functioning in a thatched shed and itshould to be converted into a pucca building from and out of theincome of the property 6.38 acres of land dedicated by him forthe Madam. He has also stated that the deity (idol) ofDakshinamoorthy should be installed in the building andKumbabishekam and other daily poojas and evening deeparathanashould be performed. The averments in the settlement deed wouldclearly establish that the word Dakshinamoorthy denotes only LordSri Dakshinamoorthy deity, an incarnation of Lord Shiva,available in all the shiva temples facing south, as submitted bythe learned counsel for the appellant. 18. As contended by the learned counsel for the appellant,practice of Kumbabishekam for any Samadhi is unheard of, sincethe dedicated property is a huge extend land of 6.38 acres ofland, due to appreciation of its value, totally unacceptable andunreasonable stand has been taken by the respondent. The documentEx.A.1 clearly shows that Late Thiyagarajan, the settlor hasdedicated the property only for Dakshinamoorthy Madam (Mutt) andas per the settlement deed, it is clear that he had intention toconvert the thatched shed into a pucca building and he wanted toinstal the idol of Lord Dakshinamoorthy and to perform abishekamand daily poojas with evening deeparathana.19. In such circumstances, the respondent has stated anunacceptable story, totally contrary to the averments of Ex.A.1,which cannot be accepted. As per Section 6(18) of H.R. & C.E.,Act, as amended (Tamil Nadu Act 10 of 2003), "ReligiousInstitution" means a math, temple or specific endowment andincludes1) a samadhi or brindhavan; or2) any other institution established or maintained for areligious purpose. https://hcservices.ecourts.gov.in/hcservices/ As per the amendment, "Samadhi" means a place where the mortalremains of a guru, sadhu or saint is interned and used as a placeor public religious worship. There is no evidence even to showthat the institution was a samadhi of Dakshinamoorthy, son of thesettlor of Ex.A.1. The recitals of the said document clearlyshows that it was only a math, as defined in the Section. Theamended Act, Act 10 of 2003, covers even the Samadhi orBrinthavan under the purview of "Religious Institution", if it isused as a place of public religious.20. As per Ex.A.1, from the income of the propertydedicated, Kumbabishekam has to be performed to Dakshinamoorthydeity, after the same is installed in a pucca building. It is notin dispute that Kumbabishekam is only a public religiousfunction, relating to Hindu religion. Further, as per thesettlement deed, charity of poor feeding has to be performedduring the month of Karthigai and therefore, the beneficiariesare the public, as per Ex.A.1 and therefore, it cannot beconstrued as a private institution.21. As contemplated under Section 6(20) of the Act, the maintest to consider whether an institution is a private one or atemple dedicated to public as a religious institution, thefollowing ingredients are essential :1) Is there any dedication of property to perform publiccharity ?2) Whether there is free access to public to worship thedeity as a matter of right ?3) The important features required to consider theinvolvement of the public in the regular important activities ofthe institution.22. It has been clearly established by way of evidence thatas per Ex.A.1, settlement deed, the testator has dedicated 6.38acres of land for the Madam. The term Madam is otherwise known asMath. As per the averments of the settlement deed, public charityto be performed by way of poor feeding and therefore, thebeneficiaries are the public, which cannot be disputed.23. As per the settlement deed, Dakshinamoorthy deity shouldbe installed after the thatched shed is removed and puccabuilding is constructed. The settlement deed reads that from andout of the income of the dedicated property, after constructing apucca superstructure, the deity of Dakshinamoorthy should beinstalled at the Madam (Mutt) and daily poojas, deeparathana andkumbabishekam shall be performed. https://hcservices.ecourts.gov.in/hcservices/

24. The daily poojas, deeparathana and the festival ofKumbabishekam are related to a public temple and not for anySamadhi. As per the settlement deed, the settlor has clearlystated that Kumbabishekam, daily poojas and deeparathana shall beperformed to the deity and therefore, the plea of the respondentis totally a self-contradictory version to enjoy the property ashis own and hence, the respondent cannot claim the institution asa private Samadhi.25. It is clear that the Court below has not decided thesuit, on the legal and factual aspects, based on the evidenceavailable on record and therefore, this Court is of the view thatthe appeal has to be allowed and the impugned Judgment and Decreeare to be set aside. Accordingly, the points for determination inthis appeal are answered in favour of the appellant and againstthe respondent. 26. In the result, the appeal is allowed and the impugnedJudgment and Decree passed by the court below is set aside,upholding the order passed by the Commissioner, H.R. & C.E.,Chennai. However, there is no order as to costs. TsvnSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Subordinate Judge Nagapattinam. 2. The CommissionerH.R.& C.E., Admn., Department,Nungambakkam High Road,Chennai – 34. 3. The Section Officer,VR Section, High Court, Madras.+ 1 cc to Spl Govt Pleader, SR No. 6943ASM(CO)SR/22.5.2008 A.S.No.285 of1997