Nungambakkam High Road v. Sri Ayyappa Baktha Sabha

2. The respondent/plaintiff filed a petition before theDeputy Commissioner of Hindu Religious and Charitable EndowmentsAdministration Department, Chennai in O.A.No.4/1984 under Section63(a) of the Tamil Nadu Act 22 of 1959 for getting a declarationthat Sree Ayyappa temple constructed by the respondent/plaintiffsabha in the property bearing New No.45, (Old No.28), SirMadhavan Nair Road, Madhavan Nair Colony, Nungambakkamm, Madras-600 034 was not a Hindu public religious institution coming underthe purview of the said Act and that it was a private templewhich came into existence for the benefit of the members of theSabha. The said application was filed pursuant to the stepstaken by the officials of the H.R. & C.E. department to bringthe temple under the control of the department. It had beenprayed in the said application that the suit temple should bedeclared as a private temple not coming under the definition ofsection 6(20) of the Tamil Nadu Hindu Religious and CharitableEndowments Act 1959, (Act 22 of 1959). After enquiry in the saidoriginal application O.A.No.4/1984, the Deputy Commissioner, H.R& C.E. Administration Department, Chennai passed an order withthe following observation:-"Although the petitioner sabha is maintaining atemple in which public religious worship exists,if there is no public dedication, it has to beconcluded that the Ayyappa temple situated inthe private land of Sree Ayyappa Baktha Sabha,Madhavan Nair Road, Madhavan Nair Colony,Nungambakkamm, Madras-34 has not been dedicatedfor the benefit of or use as of right by theHindu community or any sections thereof as aplace of public religious worship." The said order was passed by the Deputy Commissioner, H.R. & C.E.Administration Department on 10.03.1987. 3. As against the said order of the Deputy Commissioner,H.R. & C.E. Administration Department, as it is quite natural, nothird party filed an appeal. However, the first appellant/firstdefendant, namely the Commissioner, H.R. & C.E. AdministrationDepartment, Chennai, exercising his power of suo motu revisionunder Section 69(2) of the Tamil Nadu Hindu Religious andCharitable Endowments Act, 1959, issued necessary notice on thesuo motu revision to the respondent/plaintiff sabha. In spite ofthe objections raised by the respondent/plaintiff sabha placingmaterials in support of its case, the Commissioner, H.R. & C.E.Administration Department rejected the contentions of therespondent/plaintiff sabha, found fault with the order passed bythe Deputy Commissioner, H.R. & C.E. Administration Department inO.A.No.4/1984, set aside the order of the Deputy Commissioner,H.R. & C.E. Administration Department passed in O.A.No.4/1984 andheld that Sree Ayyappa temple situated at No.45, Madhavan Nair https://hcservices.ecourts.gov.in/hcservices/ Road, Madhavan Nair Colony, Nungambakkam was a Hindu publicreligious institution as contemplated under Section 6(18) of theTamil Nadu Hindu Religious and Charitable Endowments Act, 1959. 4. As against the said order of the Commissioner, H.R. &C.E. Administration Department dated 13.01.1989, therespondent/plaintiff filed a statutory suit under section 70(1)of the Tamil Nadu Hindu Religious and Charitable Endowments Act,1959 in O.S.No.4229/89 and prayed that the said order should beset aside and the suit temple should be declared a private templenot coming under the definition of religious institution ascontemplated under section 6(18) of the said Act. The suit wasresisted by the appellants herein/defendants. The writtenstatement was filed by the first appellant/first defendant andthe same was adopted by the second appellant/second defendant.In the said written statement it was contended that the suittemple, viz., Sree Ayyappa temple, situated at No.45, MadhavanNair Road, Madhavan Nair Colony, Nungambakkamm, Chennai satisfiedthe ingredients of Hindu public religious institution ascontemplated under section 6(18) of the Tamil Nadu HinduReligious and Charitable Endowments Act, 1959 and that hence thesuit should be dismissed.5. It is the contention of the respondent/plaintiff thatthe objects of the plaintiff sabha are secular in nature, viz:"the spread of the cult of Sree Ayyappa which means universalbrotherhood; arranging discourses and lectures; propagating theidea of charity by providing scholarships and other assistance todeserving students; feeding of poor; establish and runeducational institutions; promoting tourism; providing medicalassistance to needy and the poor; constructing halls, buildingsetc.; to propagate the ideas of the sabha and establishing andrunning libraries containing books of all faiths"; that themembership of the sabha was open to all persons irrespective ofcaste, creed or religion and that hence the Society cannot beconstrued to be confined to any religion or community. It wasalso the contention of the respondent/plaintiff that the suittemple, namely Sree Ayyappa Temple, was built by therespondent/plaintiff society in a private land belonging to thesabha and that the construction of the temple was made only withthe contributions made by the members of the sabha; that 10% ofthe members of the plaintiff sabha are Muslims, Christians andpersons other than Hindus; that the admission to the temple foroffering worship was reserved and that it was not open to all themembers of the Hindu community to enter the premises and offerworship as a matter of right. It had also been averred in theplaint that a warning, to the effect that the temple was not opento all the members of Hindu community to offer worship in thesuit temple as a matter of right, had been prominently displayedat the entrance of the temple from the very inception of thetemple; that Sree Ayyappa temple is not a Hindu Public religious https://hcservices.ecourts.gov.in/hcservices/ institution as defined in Section 6(18) read with section 9(2) ofthe said Act; that it was not a place of public worship wheremembers of public could offer worship or have access or entry asof right; that the temple was not dedicated to or endowed togeneral public, much less to members of Hindu community foroffering worship as of right; that the entire property includingthe suit temple stood vested with the plaintiff sabha; that SreeAyyappa temple was not a public religious institution to attractthe provisions of Tamil Nadu Hindu Religious and CharitableEndowments Act, 1959; that the suit temple was a private templebelonging to the respondent/plaintiff sabha in respect of whichHindu public or a section thereof did not have any right of entryand worship and that the suit temple was nothing but a privatetemple, to which the provisions of Tamil Nadu Hindu Religious andCharitable Endowments Act, 1959 would not apply.6.Per contra, the appellants/defendants had contended intheir written statement that the suit was bad for non-service ofnotice under section 80 CPC; that Sree Ayyappa temple had beentreated as a separate entity by the respondent plaintiff and assuch the objects of the sabha had nothing to do with thecharacter of the temple; that the declaration granted by theDeputy Commissioner, H.R. & C.E. Administration Department,Madras in his order dated 10.03.1987 made in O.A.No.4/1984 to theeffect that the suit temple would not come under the definitionof section 6(20) of the Tamil Nadu Hindu Religious and CharitableEndowments Act, 1959 was not sustainable; that hence the firstappellant, namely the Commissioner, H.R. & C.E. AdministrationDepartment, Chennai in exercise of his suo motu revision powerunder section 69(2) of the Act rightly invoked such power anddecided to revise the order and that the ultimate order of theCommissioner, H.R. & C.E. Administration Department, Madraspassed on 30.01.1989 in S.M.R. No.13/1988 setting aside the orderof the Deputy Commissioner, H.R. & C.E. AdministrationDepartment, Madras dated 10.03.1987 made in O.A.No.4/1984 andconsequently rendering a finding that the suit temple was a Hindupublic religious institution as defined under the provisions ofthe Tamil Nadu Hindu Religious and Charitable Endowments Act,1959 could not be successfully assailed as infirm or erroneous.It had also been contended therein that the land over which thetemple had been constructed had been obtained by way of giftsettlement; that the temple was constructed out of the donationsreceived from the public; that the Hindu public were entitled tooffer worship in the suit temple as of right; that the templeitself had been constructed based on the model of Sree SabarimalaAyyappan temple; that as it would be done in respect of Hindutemples Kumbabishekam was also performed on 28.03.1974 for thesuit temple; that poojas were performed in the suit temple byNamboodhiris; that Theerthavari (Aarattu) was also performed oncein a year taking the deity to the sea and that separate accountswere maintained for the income and expenditure of the temple https://hcservices.ecourts.gov.in/hcservices/ administration and for the sabha. It was contended further thatthe temple was maintained out of collection of fees levied forthe performance of special archanas and sevas etc.; that theworship had been offered in the temple by unascertained public,which would clearly show that the public had a right to offerworship and that the temple had been dedicated to public forworship; that the suit temple would answer the characteristics ofthe public religious institutions as per section 6(20) read withsection 6(18) of the Tamil Nadu Hindu Religious and CharitableEndowments Act, 1959; that the order passed by the Commissioner,H.R. & C.E. Administration department after considering all theaspects, could not be assailed and that hence the suit should bedismissed. 7. Based on the above said pleadings, the learned trialjudge framed three issues, which are as follows:-i)Whether the order of the Commissioner, H.R. & C.E.Administration Department dated 30.01.1989 made in SuoMotu Revision No.13/1988 is liable to be set aside?ii)Whether Arulmighu Ayyappa temple concerned in thesuit is a temple defined under Tamil Nadu Act 22 of1959? andiii) To what other reliefs the plaintiff is entitled?8. Four witnesses were examined as P.Ws.1 to 4 and fortytwo documents were marked as Exs.A1 to A42 on the side of therespondent/plaintiff and one witness was examined as D.W.1 andno document was marked on the side of the appellants/defendants.9. The learned trial judge, at the conclusion of thetrial, heard the arguments advanced on either side, consideredthe pleadings and evidence in the light of the points urged insuch arguments and, upon such consideration, came to theconclusion that the character of the suit temple was rightlydecided by the Commissioner, H.R. & C.E. AdministrationDepartment as a Hindu Public Religious institution found insection 6(20) read with section 6(18) of the Tamil Nadu HinduReligious and Charitable Endowments Act, 1959. The trial Courtalso held that the contention of the respondent/plaintiff thatthe suit temple was a private temple not coming under the scopeof the Tamil Nadu Hindu Religious and Charitable Endowments Act,1959 had got to be countenanced. Based on the said findings, thelearned trial Judge by judgment and decree dated 09.09.1993decreed the suit O.S.No.4229/89 filed by the respondentherein/plaintiff. 10. The said decree of the trial court is challenged inthe appeal filed in accordance with the enabling provision foundin section 70(2) of Tamil Nadu Hindu Religious and Charitable https://hcservices.ecourts.gov.in/hcservices/ Endowments Act, 1959 on various grounds set out in the memorandumof appeal.11. The arguments advanced by Mr.M.R.Murugesan, learnedSpecial Government Pleader (H.R. & C.E.) appearing for theappellants and the arguments advanced by Mr.T.L.Rammohan, learnedsenior counsel for the respondent were heard. Materialsavailable on record were perused.12. The points that arise for consideration in thisappeal are:-i)Whether the suit temple is not a Hindu temple?ii)Whether the suit temple is a private temple belongingto the respondent/plaintiff sabha which does not comeunder the purview of Tamil Nadu Act 22 of 1959? andiii)Whether the court below has committed an error inholding that the order of the Commissioner, H.R. &C.E. Administration Department dated 30.01.1989 madein Suo Motu Revision No.13/1988 is liable to be setaside?13. The Commissioner, Hindu Religious and CharitableEndowments, Administration Department, Chennai – 34 and theAssistant Commissioner, Hindu Religious and CharitableEndowments, Administration Department, Chennai – 34 , who figuredas the first and second defendants respectively, in the originalsuit (O.S.No.4229 of 1989) are the appellants herein. SreeAyyappa Baktha Sabha, represented by its Secretary, which figuredas the plaintiff before the Court below is the respondent herein.The suit was one filed under Section 70(1) of the Tamil NaduHindu Religious and Charitable Endowments Act, 1959 (Act 22 of1959). 14. Sree Ayyappa Baktha Sabha viz., therespondent/plaintiff, is a registered society. A pious andcharitable woman, namely, Lady Madhavan Nair donated a landmeasuring about three grounds to the respondent/plaintiff Sabhaby a deed of settlement dated 30.04.1974. In the said landbearing old Door No.28, New Door No.45, Sir Madhavan Nair Colony,Nungambakkamm, Chennai – 34, the respondent/plaintiff Sabhaconstructed a temple for Lord Sree Ayyappa with a typical templearchitecture of Kerala and in accordance with the Agama Sastras,employing Late Sri Kaniapayyoor Sankaran Namboodripad, a wellknown temple Architect of Kerala and renowned exponent of AgamaSastras. The nature of the said temple is the subject matter ofthe suit from which the appeal has arisen. 15. According to the respondent/plaintiff Sabha, thesaid temple does not come under the definition of publicreligious institution under Section 6(18) of Tamil Nadu Act 22 of https://hcservices.ecourts.gov.in/hcservices/ 1959 and hence, the Tamil Nadu Hindu Religious and CharitableEndowments Department authorities do not have, and cannotexercise, any control over the management of the same. Percontra, the appellants contend that the suit temple viz., SreeAyyappa temple is one constructed over a land donated by aperson, who was not a member of the respondent trust; that thetemple was constructed using the contributions collected from themembers of the Sabha and also from the donations received fromthe public; that the temple has been built with the features ofHindu temple in accordance with Agama Sastras; that besides theidol of Sree Ayyappa, the chief deity, idols of Valli Deivanai,Malligai Purathama Devi and Vinayaka etc., have also beeninstalled therein, which would show that the temple is areligious institution; that a board has been exhibited to theeffect that non-Hindus are barred entry into the temple; that thetemple has been left open for being worshipped by all thedevotees of Lord Ayyappa, who are essentially Hindus; that LordAyyappa himself is a Hindu god; that the Hindu public come andoffer worship there, as of right and that therefore, the suittemple , namely, Sree Ayyappa temple at Old Door No.28, New DoorNo.45, Sir Madhavan Nair Colony, Nungambakkam, Chennai – 34 isnothing but a Hindu Public temple, which comes under thedefinition of Hindu Public Religious institution found in Section6(18) of Act 22 of 1959. 16. The contention of the respondent/plaintiff Sabha istwo fold. The first contention is that Ayyappa worship is aparticular cult transcending barriers of caste, religion andsections thereof; that the respondent/plaintiff society itselfwas established with the object of spreading the cult of SreeAyyappa viz., universal brotherhood among all personsirrespective of caste, creed or religion and for other secularcharitable purposes and that therefore, Sree Ayyappa templeconstructed and managed by the respondent/plaintiff Sabha cannotbe termed a Hindu temple to bring it within the ambit of thedefinition of Hindu Public Religious institution. The secondcontention of the respondent/plaintiff sabha is that Sree Ayyappatemple situated at Old Door No.28, New Door No.45, Sir MadhavanNair Colony, Nungambakkam, Chennai – 34, is a private templebelonging to the respondent/plaintiff Sabha, in which itsmembers alone have got a right of entry and that though theother devotees of Ayyappa (non-members of the Sabha) arepermitted to offer worship on payment of entry fee, therespondent/plaintiff sabha retains a power to deny entry to anynon-member. 17. In short, the two contentions made by therespondent/plaintiff sabha are:- 1) Sree Ayyappa temple is not aHindu Religious Institution and 2) Sree Ayyappa Temple is aprivate temple belonging to the respondent/plaintiff Sabha. Thecorrectness of both the above contentions of the https://hcservices.ecourts.gov.in/hcservices/ respondent/plaintiff is disputed by the appellants/defendants.According to them, the suit temple is a Hindu temple and a publictemple as well since it was constructed using the donationscollected from the public and left open to be worshipped by HinduPublic without confining the right of entry to defined persons. 18. The dispute arose when the Assistant Commissioner,Hindu Religious and Charitable Endowments, AdministrationDepartment, Chennai – 34 , namely, the second appellant proposedto seal the Hundis that were allegedly placed in the temple toenable the devotees to place their offerings and thus making anattempt to bring it under the control of the Hindu Religious andCharitable Endowments Department, on the premise that it is apublic temple to which the provisions of Tamil Nadu Act 22 of1959 apply. Pursuant to the said attempt, therespondent/plaintiff Sabha approached the Deputy Commissioner,Hindu Religious and Charitable Endowments, AdministrationDepartment, Chennai under Section 63(a) of Act 22 of 1959, foran order declaring that the suit temple is not a Hindu PublicReligious institution. The Deputy Commissioner took theapplication thus filed by the respondent/plaintiff Sabha, on hisfile as O.A.No.4 of 1984 and after enquiry, decided the issue infavour of the respondent / plaintiff sabha. The first appellant,viz., the Commissioner, Hindu Religious and CharitableEndowments, Administration Department, Chennai – 34, in exerciseof his suo motu power of revision under Section 69(2) of TamilNadu Act 22 of 1959, issued notice to the respondent/plaintiff insuo motu Revision No.13 of 1982 and after hearing, took a viewthat the Deputy Commissioner had passed an erroneous order, setaside the order of the Deputy Commissioner dated 10.03.1987 madein O.A.No.4 of 1984 and declared Sree Ayyappa Temple situated atOld Door No.28, New Door No.45, Sir Madhavan Nair Colony,Nungambakkamm, Chennai – 34 to be a religious institution asdefined in Section 6 (18) r/w. 6/20 of Tamil Nadu Act 22 of 1959.19. Aggrieved by the said order, challenging the same aserroneous and praying for an order to set aside the order of thefirst appellant dated 30.01.1989 made in suo motu R.C.No. 13 of1988, the respondent/plaintiff had filed the suit under Section70(1) of the Hindu Religious and Charitable Endowments,Administration Department Act, 1959. In order to prove its case,the respondent/plaintiff Sabha examined four witnesses as Pws 1to 4 and produced 42 documents as Exs.A1 to A42. The appellants/defendants relied on the oral testimony of the sole witnessexamined on their side viz., DW1 without producing anydocumentary evidence. As a Court of first appeal, this Court hasto consider and re-appreciate the evidence. Point No.1:-20. Thangappan Nair, the Secretary of the https://hcservices.ecourts.gov.in/hcservices/ respondent/plaintiff Sabha has deposed as PW1. It is hisevidence that there is no restriction on the ground of religionto become a member of the plaintiff sabha and that every one whobelieves in the cult of Ayyappa can become a member. It is alsohis evidence that the membership of the respondent/plaintiffSabha consists of not only Hindus, but also Christians andMuslims. However, in his evidence he would admit that only aminority constituting 10% of the members are non-hindus. It ishis further evidence that no donation from public was receivedfor the construction of the temple and the donations made by themembers and their friends alone were used for constructing thetemple. He has specifically denied the contention of theappellants that a board has been displayed to the effect thatnon-hindus should not enter the temple. He has stated that theyhave put up a writing in front of the temple that right ofadmission is restricted. It is an admitted fact that the officeof the respondent/plaintiff Sabha is located on the backside ofthe temple. A suggestion was made to PW1 to the effect that thesaid sign board was meant for indicating that the right ofadmission to the office of the Sabha alone was restricted and theright of admission to the temple was not restricted. Such asuggestion was stoutly denied by PW1. 21. PW2 is one Gabriel. He has been examined to showthat despite being a Christian, he remains a member of therespondent/plaintiff Sabha and he is also offering worship in thesuit temple, namely, Sree Ayyappa Temple. Through him also it issought to be proved that the entry to the temple to offer worshipto Lord Ayyappa is not restricted to members of a particularreligion viz., Hindu religion; that irrespective of thereligion to which they belong people are allowed to enter thetemple and offer worship after getting specific permission.Similarly one J.M.Naji, who claims to be a Christian and at thesame time a member of the respondent/plaintiff Sabha, has beenexamined as PW4. His evidence is similar to that of PW2.Sadhanadhan S/o.Krishnan has been examined as PW3 to show that heis a regular visitor to the suit temple and he has seen peoplebelonging to other religions also coming there and offeringworship. From the testimonies of Pws 1 to 4, it is made clearthat the membership of the respondent/plaintiff Sabha is open topersons other than Hindus also and that persons other than Hindusare also permitted to offer worship to the deities in the suittemple. From the above evidence, it is quite obvious that themembership of the respondent/plaintiff sabha is open to personsprofessing religions other than Hindu also. In fact from theevidence of Pws 1 and 2 and Ex.A39, the Membership Register, itis obvious that Christians and Muslims are also inducted asmembers of the respondent/plaintiff. Respondent / plaintiffSabha has also been registered as a Society under the SocietiesRegistration Act, as evidenced by Ex.A9 Therefore, thecontention of the respondent/plaintiff that the respondent / https://hcservices.ecourts.gov.in/hcservices/ plaintiff Sabha is a society transcending the barriers ofreligion, caste, creed etc., is well founded and standsestablished. Point Nos. 2 and 3:-22. But the question involved in this case is notwhether the respondent/plaintiff sabha is a Hindu Religiousinstitution or a society meant for Hindus alone and on the otherhand the question involved in this case is "whether Sree AyyappaTemple situated at Door No.28, New Door No.45, Sir Madhavan NairColony, Nungambakkamm, Chennai – 34, admittedly constructed bythe plaintiff society, is not a Hindu temple as contended by therespondent/plaintiff?" The respondent/plaintiff has raised theabove contention on the strength of the plea that the societyitself is not meant for Hindus alone and all the members of thesociety, including Christians and Muslims, do have a right tooffer worship in the suit temple and that Sree Ayyappa worship isa different and distinct cult which does not come within thedefinition of any religion and hence the temple cannot beconstrued to be Hindu Temple. In support of the contention ofthe respondent/plaintiff, the learned Senior Counsel relied onthe following judgments:1)1952 (1) MLJ 282, The Commissioner for Hindu ReligiousEndowments Board, Madras V. Sri. Vijanayakar ArudraTiruppani Sabha, Madras2)1960 II MLJ 591, The State of Madras by the Secretary,Revenue Department, Madras and another V. The UrumuSeshachalam Chettiar Charities, Tiruchirappalli by itsBoard and Trustees and others3)1974 (1) MLJ 174, S.Kannan and others V. The All IndiaSai Samaj (Registered) by its President, D.Bhima Rao,Mylapore4)(2001) 2 M.L.J. 211, The Commissioner, H.R & C.E (Admn)Department, Madras V. N.A.Ramaswamy Chettiar andanother.23. In Sri. Vijanayakar Arudra Tiruppani Sabha case, aDivision Bench of this Court dealt with a question as to whethera resolution passed by a registered society to the effect thatthe object of the society was to perform Arudra Archanai,Abishekam and Tirupavadam every year, on the day of ArudhraDarsanam in the month of Margali, to Sri Vinayagar installed inany temple in the locality or any other place within or withoutthe city of Madras, as the members may by a majority decide yearafter year, shall constitute a specific endowment in favour of areligious institution. In that case, it was held that there wasno specific endowment of the entire or part of the income of theproperty owned by the society for any specific religiouscharity ; that there was no divesting of ownership even regardingthe income and there was nothing to prevent the society from https://hcservices.ecourts.gov.in/hcservices/ changing its objects and that hence the same could not beconstrued to be a specific endowment. The facts of the case onhand is different and the issue involved is also different.Hence the said decision has no application to the case on hand. 24. In Urumu Seshachalam Chettiar Charities,Tiruchirappalli case cited second above, the question involvedwas not whether a temple established by the charities was a HinduReligious Institution or not. One of the objects of the saidtrust reads as follows: -"The trustees may, for the purpose of carrying outthe trust, acquire the Urumu Dhanalakshmi Vidyalayam andthe Urumu Seshachalam Chetty Hindu Orphanage and similarother institution, conduct those institutions and make allnecessary additions, alternations and improvements for theall round expansion of the trust". Hence, it was sought to be projected as clear intention tobenefit Hindus alone. But the Division Bench held that the samecould not be interpreted to mean that the benefit was sought tobe conferred exclusively on Hindus constituting a Hindu PublicCharitable endowment. 25. In the said case, it has been held that to bring anendowment within the purview of the Hindu Religious andCharitable Endowments Act, it shall not be enough that such anendowment is intended to benefit the public so that it can betermed a Charitable Endowment, but the same must be a HinduPublic Charitable endowment. The said judgment was rendered onthe interpretations of Sections 3, 6 (4) and 6(14) of theprevious Act, viz., Madras Hindu Religious and CharitableEndowments Act, 1951 (Act XIX of 1951) which was subsequentlyreplaced by the present Act, viz., Act 22 of 1959. However,the principle laid down therein very well applies to the PublicCharitable institutions under the present Act also. In Section3(1), the term Public Charitable Endowment is specificallyprefixed by the word Hindu or Jain. Therefore, it is quiteobvious that all public Charitable Endowments cannot be broughtunder the purview of Act 22 of 1959. Only those publicCharitable Endowments which are Hindu or Jain can be broughtunder the Purview of Act 22 of 1959. 26. The other judgment viz., Commissioner, Hindu Religiousand Charitable Endowments Vs. N.A. Ramasamy does not deal withthe question as to whether a place of worship is a Hindu templeor not. On the other hand, whether an object provided in asettlement constituted a specific endowment was the issueinvolved in the said case. Therefore, the same is not applicableto the case on hand.27. Reliance is also placed on the order of this Court inS.Angamuthu Pillai and Others V. Govindarajoo Mudaliar (since https://hcservices.ecourts.gov.in/hcservices/ deceased) and others reported in 2008 2 MLJ 980. It was a casein which a scheme was framed by the Court regarding themanagement of the properties of the trust and for thefulfillment of the objects of the trust. As per the schemedecree certain rights were to be performed in connection with the"Muneeswarar Temple" popularly known as "Body Guard MuneeswararTemple". It was sought to be contended on behalf of theofficials of the Hindu Religious and Charitable EndowmentsDepartment that the entire properties of the charities wereliable to be brought under the control of the Hindu Religious andCharitable Endowments Department. In that case, it was held thatthe charities was a composite one consisting of religious andsecular character and simply because some rites are to beperformed in connection with a temple as per the scheme decree,the Hindu Religious and Charitable Endowments Department couldnot make an attempt to extend the Act to the whole institution ofthe charities. The said judgment is also not helpful to therespondent/plaintiff Sabha.28. A Judgment of another Division Bench of this Court inS.Kannan and others V. The All India Sai Samaj (Registered) byits President, D.Bhima Rao, Mylapore, cited as the third caseabove, is the one on which strong reliance has been placed bythe learned senior counsel for the respondent to show that thesuit temple is not a religious institution as defined in Section6 (18) of Tamil Nadu Act 22 of 1959. The Division Bench came tothe conclusion that the Sai Mandir at Mylapore was not a HinduReligious Institution as defined under Section 6(18) of the Act.The Division Bench referred to an observation made in "The Stateof Madras by the Secretary, Revenue Department, Madras andanother V. The Urumu Seshachalam Chettiar Charities,Tiruchirappalli" reported in 1960 II MLJ 591 wherein JusticeBalakrishna Ayyar.J., had held that the Act was intended to applyto Hindu Religious institutions and endowments and HinduCharitable institutions and endowments; that the omission toemploy the expression "exclusively" was of no consequence; thatthe introduction of such qualifying word was unnecessary as itwould have caused confusion and controversy in other places ofthe Act and that the expression Hindu Temple was plain enough.Following the said view, the Division Bench in Sai Samaj case,held that sai samaj was not a Hindu Religious institution. TheDivision Bench observed that the materials produced in the saidcase would amply demonstrate that Sai mandir was not a place ofpublic religious worship dedicated solely to the members of theHindu community and hence the Act was not applicable to it. 29. Placing reliance on the observations of the DivisionBench in the above said case, the learned senior counselappearing for the respondent /plaintiff has vehemently arguedthat the respondent/plaintiff having proved that its membershipconsists of Non-hindus also and the temple established by the https://hcservices.ecourts.gov.in/hcservices/ plaintiff Sabha cannot be said to be a Hindu religiousinstitution and that the ratio decided in Sai Mandir case shouldbe applied to the case on hand to hold that Sree Ayyappa Templesituated at Old Door No.28, New Door No.45, Sir Madhavan NairColony, Nungambakkam, Chennai – 34 is not a Hindu temple and itis a temple which trancend all religious, caste and racebarriers. The said contention cannot be countenanced since thefacts are different. In Sai Mandir case, worship of noparticular deity or Hindu gods had been noticed. Idols of Hindudeities were not placed in Sai Mandir and no pooja as done inHindu temples to the deities were performed in the Mandir. Thatis the reason why the Division Bench came to the conclusion thatSai Mandir was not a Hindu Religious institution. The facts ofthe case on hand are different.30. Further more, in the case on hand, it is not thecontention of the appellants that the respondent/plaintiff Sabha,which is a registered society, is a Hindu Public ReligiousInstitution or endowment or Hindu Public Charitable endowment.The Department does not propose to bring the Sabha under itscontrol as a religious institution or a Hindu CharitableEndowment. On the other hand, the contention of the appellantsis that the suit temple Sree Ayyappa temple located at Old DoorNo.28, New Door No.45, Sir Madhavan Nair Colony, Nungambakkam,Chennai – 34 , though established by the plaintiff Sabha, is aHindu temple. Whether it is a public temple or private temple isa question which can be discussed at a later part of thisjudgment. Whether it is a Hindu Temple is the first and foremostquestion to be decided. 31. There are overwhelming evidence adduced on the sideof the plaintiff itself that the suit temple was constructedfollowing the structural specifications of Sree Ayyappa Temple atSabarimalai, Kerala. It has also been admitted by the plaintiffthat the temple was constructed by Late Sri KaniapayyoorSankaran Namboodripad. It is also not only admitted butspecifically averred by the plaintiff in the plaint itself thatLate Sri Kaniapayyoor Sankaran Namboodripad, a well known templeArchitect of Kerala and renowned exponent of Agama Sastras, wasrequested to draw the plan for the building to house the privatetemple and that the Gopuram has been built according to typicaltemple architecture of Kerala. It has also been admitted thatthe chief deity of the temple is Lord Ayyappa. It is also not indispute that day-to-day poojas are performed by four Namboodries,which conforms to the pattern and style followed in Keralatemples. It is also an admitted fact that besides the idol ofLord Ayyppa, idols of other deities, namely Valli Deivanai,Maligaipurathamma Devi and Vinayaga have also been installed inthe temple. PW1 also admits that after construction of thetemple, Kumbabishekam was conducted. It is also his admissionthat the Karpa graha has been made to resemble the same found in https://hcservices.ecourts.gov.in/hcservices/ other Hindu temples. It is also his admission that poojas aredone in the suit temple in the same way in which poojas are donein the Hindu temples in Kerala. As per his evidence, earlymorning pooja at 4.00a.m. followed by flower abishekam, thenGanapathi homam and other abishekams are being done. Sripallipooja, Ucha Pooja, again Sripali pooja, evening pooja at 5.00p.m., evening Deeparadhana at 6.30p.m., pooja at 8.00 p.m. in theevening and Sripalli pooja at 9.00 p.m. are the regular poojasdone in the suit temple and on auspicious days, apart from theregular poojas, other poojas are also being conducted.32. It is an admission made by PW1 that adjoining thesuit temple, there is a Guruvayurappan temple and only a chainprovided in between those two temples demarcate their commonboundary. It is also his admission that near Guruvayurappansannidhi there are Navagrahas. The said admission of PW1 wouldshow that besides Ayyappa sannidhi in the suit temple, there areGuruvayurappan sannidhi and a sannidhi for Navagrahas, allwithin the property of the plaintiff Sabha. The said inferenceis strengthened by the further admission of PW1 that the Counterfor issuing tickets for Abishekam for all the deities is locatedon the south of Guruvayurappan sannidhi. His evidence in crossexamination also shows that there are sannidhis for Ayyappa,Muruga and Guruvayurappa and other deities. It is not the case ofthe plaintiff that any member, irrespective of the religion towhich he belongs, can perform poojas in the suit temple. It isalso not the case of the plaintiff that even the members of otherreligions, after having become members of the plaintiff Sabha,shall be allowed to perform pooja. On the other hand, it is acategorical admission made by PW1 that daily poojas are performedby Namboodhiris and six Namboodhiris are there in the suittemple. It is also a clear admission made by the plaintiff inthe plaint and also in the evidence of PW1 that all the ritualsthat are followed in Sabarimalai Ayyappan temple in Kerala arebeing followed in the suit temple. 33. It is not the case of the plaintiff, and even if itis so the same cannot be accepted, that Sabarimalai Ayyappantemple is not a Hindu temple or Lord Ayyappa is not a Hindu god.The plaint itself contains an averment that Lord Ayyappa isconsidered to be the product of the union of Lord Shiva and LordVishnu, when Vishnu attained the form of 'machini' and thathence, the cult of Ayyappa worship is the culmination of thecombination of Saivite and Vaishnavite forms of worship. Fromall the factors discussed above, it can be authoritatively heldthat the contention of the plaintiff that Sree Ayyappa temple atNew No.45, (Old No.28), Sir Madhavan Nair Road, Madhavan NairColony, Nungambakkamm, Madras-600 034 is not a Hindu temple,cannot be countenanced. It is also a known fact and a factadmitted by PW1 that the Ayyappa temple in Sabarimalai, Keralabelongs to Kerala Devaswam Board. In fact, there is also an https://hcservices.ecourts.gov.in/hcservices/ admission by PW1 that the plaintiff does not deny the fact thatthe suit temple is a Hindu temple and on the other hand, theplaintiff's case is that Sree Ayyappa temple, a Hindu temple, isnot a public temple to come within the purview of the Tamil NaduHindu Religious and Charitable Endowments Act, 1959, as there isno dedication of the same to the public and the public do nothave a right of entry and worship and that the right of entry andworship is restricted to the members of the plaintiff Sabha,whereas the others can come and offer worship only with thepermission of the plaintiff Sabha. The said contention,containing such an admission, itself is an answer to thecontention made by the learned senior counsel for the respondentthat Sree Ayyappa temple at New No.45, (Old No.28), Sir MadhavanNair Road, Madhavan Nair Colony, Nungambakkamm, Madras-600 034 isnot a Hindu temple and hence, Tamil Nadu Act 22 of 1959 shallnot be applicable. The mere fact that the residents of a villageinhabited by members belonging to different religions, jointogether in constructing a temple, a church or a Dargah and theirparticipation in the poojas and rituals of those institutionswill not make them all the more irreligious or secular. In TamilNadu, we do have a number of Christian shrines (for exampleVelankanni Chruch), that are visited by people cutting across thereligious barrier to offer worship. Similarly, Nagore Dargah isvisited by non-Muslims also. The simple fact that people havingfaith in other religions offer their worship or prayer in suchinstitutions, will not make those institutions a non-religious orsecular. There are also instances wherein by custom Muslims of aVillage or Christians of a Village are given Mandagapadi rightsin the festivals and the right to make the first offering or toreceive the first honour in some Hindu temples. In respect offestivals of Muslims, say for an example, the "urus" (SandhanaKoodu) festival at Nagore Dargah, some important roles are givento Hindus of a particular area. Similar is the case offestivals in Churches. Simply because such privileges, honoursor rights are conferred on persons belonging to other religions,a Mosque or Dargah does not become a non-religious or secularinstitution and a Church does not become a non-christian orsecular institution. Same is the case of a temple. Therefore,by no stretch of imagination, the suit temple viz., Sree AyyappaTemple situated at New No.45, (Old No.28), Sir Madhavan NairRoad, Madhavan Nair Colony, Nungambakkamm, Madras-600 034 can betermed a non-hindu temple or a secular institution, simplybecause the same was constructed by the plaintiff Sabha, of which10% members are non-hindus. 34. For all the reasons stated above, this Court herebycomes to the conclusion that the contention of the plaintiff thatthe suit temple is not a Hindu temple, irrespective its characteras private or public temple, cannot be countenanced and the saidargument advanced on behalf of the plaintiff deserves rejectionas untenable. https://hcservices.ecourts.gov.in/hcservices/

35. In the foregoing discussions, we have seen that thesuit temple is a Hindu temple. The next question to beconsidered is whether it is a private temple as contended by theplaintiff or a public temple as contended by the defendants. Ifit is a private temple as contended by the plaintiff, then theprovisions of Act 22 of 1959 shall not be attracted. A privatetemple can be equated to a pooja room in a private house,wherein there is no dedication of the temple to the public or asection thereof and the public cannot have a right of entry andworship without the permission of the owner. If the entry ofothers is restricted and regulated by such persons, then it canbe said that there is no dedication of the temple to the publicor a section thereof and hence the temple's public character hasto be ruled out and the private character of the temple has to beupheld. In this case, besides making clear pleading that thesuit temple is a private temple owned by the plaintiff Sabha andthe right of entry and worship is available to members of theplaintiff Sabha alone without any restriction; that the othershaving faith in the Ayyappa cult are permitted to offer worshipin the suit temple, but they do so only with the permission ofthe plaintiff Sabha and that the plaintiff Sabha retains itsright to deny access to the temple to any person, who is not amember of the plaintiff Sabha, it has also been pleaded in clearterms and evidence has been adduced in support of such plea tothe effect that a signboard has been exhibited at the entrance,which reads "Right of Admission Restricted". There is no contraevidence from any other worshipper, who is not a member of theplaintiff Sabha to the effect that he or other Hindu public arehaving right of entry into the temple and can offer worship inthe temple as of right. There is no independent witness to speakabout such rights exercised by the persons who are not members ofthe plaintiff Sabha or that admission to the temple is notrestricted as claimed by the plaintiff. Under suchcircumstances, this Court is of the view that the contention ofthe plaintiff that the mere fact that the suit temple resembles apublic temple in its features as it contains Gopuram, Sthubametc., and poojas and abishekams are conducted as it is done inpublic temples, shall not take away the character of the templeas a private temple, when it is pleaded and established thatthere was no dedication of the temple to the public and thepublic cannot offer worship in the temple as of right. Thecontention of the respondent/plaintiff, in this regard, cannot bebrushed aside as one without having substance. 36. However, it is the contention of theappellants/defendants that there is an admission on the part ofPW1 that Hundis had been placed at four places and tickets areissued for Abishekam and the same are indications of the factthat there was dedication of the temple to the public and thepublic can worship in the temple as of right. The above said https://hcservices.ecourts.gov.in/hcservices/ contention of the learned Special Government Pleader is based onthe admission made by PW1 that before 1979 Hundis had been placedat four places and in 1979, they were removed and thereafter,there is no Hundi in existence in the suit temple. Pointing outthe said admission, the learned Special Government Pleader arguedthat when the Hindu Religious and Charitable Endowmentsauthorities wanted to seal the Hundis, they were denied access tothe temple by the members of the plaintiff Sabha; that they weresent back on the first day of their attempt and that when theymade a second visit, the Hundis had disappeared. Of course, thepresence of Hundis for the offerings of the devotees shall be oneof the factors showing the public nature of the temple and theright of public to offer worship. But, the same is not the solefactor on which the question can be decided. When there is aclear plea and evidence that the temple had not been dedicated tothe public or a Section thereof and the right of entry to thetemple is restricted and the plaintiff retains its right to denyaccess to anybody, then the mere fact that by mistake theplaintiff's had placed Hundis which were subsequently removed,shall not be enough to hold the suit temple to be a public one.The necessary inference shall be that the plaintiff havinginadvertently placed Hundis in the temple without anticipatingthe consequences, realized their mistake and removed the Hundis,when the Hindu Religious and Charitable Endowments authoritiestried to take over the temple on the assumption that the suittemple is a public temple. 37. In this regard, except DW1, an official of HinduReligious and Charitable Endowments Department, no member frompublic has been examined on the side of the appellants/defendantsto prove the public character of the suit temple. Compared withsuch a position of the defendants' case, there is a clear pleamade and evidence adduced on the side of the plaintiff that thesuit temple is one not dedicated to the public or a sectionthereof and on the other hand, the entry into the temple to offerworship is regulated and restricted by the plaintiff Sabha. Whensuch is the clear plea and evidence on the side of the plaintiff,which stands unrebutted by contrary evidence having moreevidentiary value, this Court is of the considered view that thecontention of the plaintiff that the suit temple is a privatetemple and not a public temple, deserves acceptance and thecontrary contention of the appellants/defendants deservesrejection. 38. It is the further contention of the learned seniorcounsel for the respondent that the suit temple having beenfounded and managed by the plaintiff Sabha, which is a societyregistered under the Societies Registration Act, the applicationof the provisions of the Act 22 of 1959 should be ruled out. Thesaid contention seems to have been made on an erroneousassumption that the temple established by a registered society https://hcservices.ecourts.gov.in/hcservices/ cannot be identified separately from the society itself. Asociety is accorded a juristic personality. When an individualor a society or a collection of individuals constructs a temple,it cannot be contended that the temple and the founder(individual / association / society) are one and the same. Thetemple remains a private property of the individual, associationor society so long as there is no dedication to the public. Theowner himself cannot be identified with the property. If acompany constructs a building to be used as a place of worship,it could be said that such place of worship belongs to thecompany. But on the other hand, it cannot be said that theproperty of the company and the company are one and the same. Asociety which may own a property can at any time dedicate thatproperty to the public or even transfer the property to anotherperson. A temple constructed by a society shall also be aproperty of the society, which is capable of being owned,possessed, alienated in favour of others and dedicated to thepublic. When such is the case, the contention of therespondent/plaintiff that the temple cannot be identified apartfrom society and that the temple and the society are one and thesame cannot be accepted.39. It is the further contention of the learned SpecialGovernment Pleader representing the appellants that even as perthe case of the plaintiff Sabha, anybody who expresses faith inAyyappa cult, can become a member of the Sabha and hence, thetemple should be construed to be one constructed and owned by asection of people and that hence it is no doubt a public temple.This Court is not in a position to accept the above saidcontention of the learned Special Government Pleader. The merefact that anybody can become a member of the plaintiff Sabha doesnot take away the unique character of the plaintiff Sabha and itsjuristic personality as distinct from the personality of themembers constituting the Sabha. Ex.A39 is the membershipRegister. From the same it is obvious that they are numericallyascertainable. The total membership as per Ex.A39 is 105. Thetemple established by a society for the benefit of its members isto be held excluded from the purview of Act 22 of 1959, if theentry is restricted to the members of the society alone withoutthere being any dedication to the public or conferment of rightof worship to the public. The learned Special GovernmentPleader, has rightly pointed out that the acceptance of the pleathat temples constructed by societies are outside the purview ofAct XXII of 1959, will encourage the making of ingenious deviceby floating a society and then constructing a temple to have aconscious exclusion of the same from the purview of Tamil NaduAct 22 of 1959. But so long as the members of the society remaina numerically ascertainable group, they cannot be prevented fromhaving a temple of their own for their exclusive use withoutdedicating it to the public or a section thereof. It is for theGovernment and the legislature to consider the feasibility of https://hcservices.ecourts.gov.in/hcservices/ bringing about an amendment to bring the temples established byregistered societies also within the definition of public temple,if the membership of the society is open to the public withoutrestriction.40. For all the reasons stated above, this Court comesto the conclusion that the suit temple is a private templebelonging to the plaintiff Sabha and not a public temple and hence theprovisions of Tamil Nadu Act 22 of 1959 shall not apply to thesuit temple, with the consequence that the Hindu Religious andCharitable Endowments Department authorities shall not have anycontrol over the affairs of the suit temple. The Court below hascome to a correct conclusion that the order of the firstappellant / first defendant viz., the Commissioner, HinduReligious and Charitable Endowments Department holding the suittemple to be a public temple and hence a Hindu Religiousinstitution as defined under Section 22 of 1959 cannot besustained and that the same is liable to be set aside. But thereasons assigned by the Court below for arriving at such aconclusion are not correct. Therefore, though not for thereasons assigned by the Court below, but for the reasons assignedby this Court in the foregoing discussions, this Court comes tothe conclusion that the final verdict of the Court below,holding the order of Commissioner of Hindu Religious andCharitable Endowments Department liable to be set aside, deservesto be upheld and that there is no reason to interfere with thesame. Accordingly, the appeal challenging the result of the suitfails and the same deserves to be dismissed. 41. In the result, the decree of the learned V AssistantJudge, City Civil Court, Madras made in O.S.No.4229/89 dated09.09.1993 is confirmed and the appeal is dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.gpaToThe V Assistant Judge, City Civil Court, Madras https://hcservices.ecourts.gov.in/hcservices/ Copy toThe Section OfficerVR Section,High Court, Madras1 cc to Mr.P. Sukumar, Advocate, Sr. 653411 cc to Government Pleader, Sr. 65217A.S.No.525 of 1997MG (CO)kk 2/11