Kuttiammal v. The Executive Officer, Arulmigu Sengaliamman Temple, Sembilivaram Village, Sholavaram Post, Ponneri Taluk, Chengai MGR District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 19.02.2008CORAM:The Honourable Mr.Justice S.TAMILVANANA.S.No.302 of 19971.Kuttiammal2.kannappan3.Parthiban4.Nithyanandam5.Mohan6.Ramadoss (7th plaintiff in the Court below died. Therefore, his name is not shown in the cause title)... Appellants/Plaintiffs 1 to 6-vs-1.The Executive Officer, Arulmigu Sengaliamman Temple, Sembilivaram Village, Sholavaram Post, Ponneri Taluk, Chengai MGR District.2.The Deputy Commissioner, H.R.& C.E., Madras 600 034.3.The Commissioner, H.R.& C.E., Madras 600 034.... Respondents/Defendants Appeal is filed under Section 70(2) of the Tamil Nadu HinduReligious and Charitable & Endowments Act, 1952 against the judgment anddecree made in O.S.No.153 of 1988 dated 24.06.1996 on the file ofSubordinate Judge, Tiruvallur.For Appellants : Mr.V.NicholasFor Respondent-1 : Mr.N.R.Anantha Ramakrishnan For Respondents 2 & 3 : Mr.V.Rengarajan for HR & CE https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTThis appeal has been preferred against the judgment and decreedated 24.06.1996 made in O.S.No.153 of 1988 on the file of theSubordinate Judge, Tiruvallur. The appellants herein were the plaintiffs1 to 6 in the suit filed before the Trial Court.2.According to the appellants the suit temple Senkaliyamman Koil inSembilivaram village, Ponneri Taluk, hereinafter referred as 'theTemple', belongs to their family. They have further stated that it is aprivate temple built up on the patta lands of the appellants, over 11cents of land, in S.No.32/4 and 16 cents in S.No.29/3 in theSembilivaram village. According to them, the founder of the temple wastheir ancestor who had formed the temple for the family worship and thesame was not used by public, as a place of religious worship, as amatter of right. They have further stated that a dispute arosesubsequently among the appellants 1 to 6 and the deceased seventhplaintiff and others regarding the hereditary trusteeship and themanagement, which resulted in filing a petition under Section 63-A of HR& CE Act, before the Deputy Commissioner, HR & CE and numbered asO.A.No.14 of 1983 and the seventh plaintiff was initially respondent inthe application. While the proceeding was pending, the secondrespondent herein appointed the first respondent as Executive Officer,without giving notice to the Hereditary trustees and without assigningany reason by his proceedings in R.D-is 119622/82 dated 16.12.1982. 3.According to the appellants, subsequently the first respondentherein was also impleaded as a respondent in O.A.No.14 of 1983 and theDeputy Commissioner, H.R & C.E., second respondent herein, dismissed theapplication on 14.10.1985 without providing opportunity to theappellants, for examining their witnesses. Thereupon the appellants 1to 6 preferred appeal in A.P.No.38 of 1986, before the Commissioner ofHR & CE, the third respondent herein. However, the third respondentdismissed the appeal on the ground that it was vexatiousapplication/appeal, based on untenable grounds. Subsequently, theappellants filed the statutory suit under Section 70(2) of the HR & CEAct, seeking a decree to declare that the appellants are hereditarytrustee of Sengaliamman Temple, Sembilivaram Village, Ponneri Taluk andfor other relief. 4.The contention of the respondents is that Arulmigu SenkaliyammanTemple does not belong to the appellants family and the same is not aprivate temple as stated by the appellants. The first respondent in hiswritten statement has denied that the lands in S.No.32/4 11 cents and inS.No.29/3 16 cents and totally of 27 cents, do not belong to theappellants' family. According to the first respondent the land afterthe sub division of 16 cents in S.No.29/3 stands in the name of thetemple and that the temple has always been a public temple, used by thepublic as a matter of right, by all communities and that the temple was https://hcservices.ecourts.gov.in/hcservices/ constructed with the contribution of the public and not by theappellants' family members. According to the respondent even as per thecopy of the partition deed of the appellants, dated 21.12.1959, thelands in S.No.32/4 and S.No.29/3 were stated as gifted to the temple andtherefore the land became the property of the Temple. The temple wasnotified under Section 46(1) of HR & CE Act with effect form 01.07.1979as it was having an income of more than Rs.20,000/-per year. Theappellants 2 to 6 were appointed by the HR & CE Department as non-hereditary trustees by turn. 5. According to the respondents, neither the appellants nor theirancestors were in exclusive possession and enjoyment of the temple andthe Assistant Commissioner, HR & CE by his proceedings No.4256/82 dated14.10.1982, had issued charge memos to the non-hereditary trustees formisappropriation and for submission of false accounts. According to thefirst respondent, the second appellant had deposited only Rs.9,050/- inthe Bank though the collection was at Rs.34,450.19, in the fasli 1390and in the turn of functioning as trustees the appellants 2 to 4 alsocommitted misappropriation, by submitting false accounts to theauthorities. Hence, the Assistant Commissioner directed the trustees toshow cause within 15 days as to why the loss to the temple should not berecovered from them, under Section 33(1) of the Act and asked them toshow cause within seven days as to why an executive officer should notbe appointed. Subsequently, the Commissioner, the third respondent byhis proceedings in R.D-is 119622/82 dated 16.12.1982 appointedThiru.Pattabi Subramaniam as Executive Officer, as the trustees hadfailed to show cause for about two months against the grave chargeslevelled against them. Aggrieved by which the appellants 1 to 6 filedW.P.No.1783 of 1983 for quashing the order appointing the ExecutiveOfficer, but the same was dismissed as withdrawn. Subsequently, theappellants filed another W.P.No.3626 of 1983 dated 06.04.1983 for thesame relief against the same respondents which was also dismissed. 6.The appellants did not file any application under Section 47 ofthe Act to set aside or modify the order of appointing them as non-hereditary trustees. According to the respondents the appellants haveaccepted their stand as non-hereditary trustees of the suit temple. 7.The appellants had also filed O.P.No.83 of 1980 before thesecond respondent seeking for a declaration that the temple is not areligious institution under the Act and to appoint them as hereditarytrustees. The said application was subsequently dismissed for default.For the same relief O.P.No.14 of 1983 was filed by the appellants byimpleading the seventh plaintiff as respondent. The first respondent,after his appointment as Executive Officer, filed an application andbrought himself on record as second respondent. No oral evidence waslet in on the side of the appellants however, Exs.A1 to A5 were markedby consent. The Inspector of HR & CE was examined as Court witnessesand his report was marked as Ex.C1. Considering the pleadings, evidence https://hcservices.ecourts.gov.in/hcservices/ and other materials, the Deputy Commissioner, the second respondentherein had dismissed the O.P.No.14 of 1983 on 14.10.1985. According tothe respondent, on the date of the petition the appellants were not in aposition and management of the temple, much less as hereditary trustees. 8.The appellants filed W.P.No.8216 of 1983 to quash the order ofthe Assistant Commissioner and direct him to allow them to function asmembers of Tirupani Committee. However, the writ petition was dismissedon 07.09.1983 even at the admission stage. The Rajagopuram at 20 feetheight was constructed by spending huge amount of public contribution.According to the respondent, the appellants filed the suit suppressingthe fact of the proceedings initiated against them and that they cannotclaim 27 cents of land which was gifted to the temple. The contentionof the respondents is that the suit temple cannot be construed as aprivate temple. The appellants have not filed any application underSection 47(3) of the Act, to set aside or modify the order passed by therespondents, appointing them as non-hereditary trustees. 9.The short point for determination in this appeal is whether theorder of the third respondent dated 16.09.1988 in A.P.No.38 of 1986 hasto be set aside, whether the appellants are entitled to be appointed asHereditary trustees of Senkaliyamman Koil in Sembilivaram Village.10.Mr.N.R.Anantha Ramakrishnan, learned counsel appearing for thefirst respondent contend that the there is no evidence to show that theancestors of the appellants herein, were hereditary trustees of the suittemple at any point of time. Further, it is an admitted case that theappellants were appointed only as non-hereditary trustees of the suittemple and that the same was not objected to by the appellants.Subsequently, they were removed and the first respondent/ExecutiveOfficer was appointed to manage the temple, since the appellants had notsubmitted their explanation against the grave charges ofmisappropriation and mismanagement of the suit temple.11.Mr.V.Nicholas, learned counsel appearing for the appellantswould contend that the appointment of Executive Officer by theCommissioner, HR & CE is against Section 45(1) of the Tamilnadu HinduReligious & Chairtable Endowment Act, Act 22 of 1999. In support of hiscontention he relied on the decision of the Division Bench of this Courtin The Commissioner, HR & CE (Admn.) Department, Madras-34 vs.K.Jothiramalingam and another reported in 1986 (II) MLJ 334. As per theaforesaid decision, this Court has held that appointment of ExecutiveOfficer by Commissioner of HR & CE, without notice to the hereditarytrustee is against Section 45 of the Act. 12. As per the facts of the aforesaid case, the temple was beingmanaged by Hereditary trustees and Executive Officer was appointed bythe Commissioner HR & CE, even without notice and without hearing thehereditary trustee. This Court in the above cited decision, held, that https://hcservices.ecourts.gov.in/hcservices/ the power vested in the Commissioner, under Section 45(1) of the Act,being a very drastic one, which has to be exercised cautiously,reasonably and fairly as the exercise of such power may even result inthe effective elimination of the hereditary trustee from management andadministration of the Institution.13.In the decision in Chettimai C. Nanjappa Chettiar(Decd.) andanother vs. S.N.Kuppuswami Chettiar and others reported in 1986(2) MLJ464 it was held that relinquishment or release by person in office hasno legal consequence and the person entitled to succeed can ignore suchrelease or relinquishment. It is not in dispute that hereditarytrusteeship is not a property within Article 79{1)(f)} of theconstitution and the hereditary trustee succeeds to the office, as ofright and in accordance with rules of succession. 14.In the decision reported in Ranganatha Pillai and 11 others vs.The Commissioner for Hindu Religious and Charitable Endowments,Administration Department, Madras -34 1979 (2) MLJ 23, it was held that; "That the definition of 'hereditary trustee' inSection 6, clause (ii) of the Tamil Nadu HinduReligious and Charitable Endowments Act is very widein its amplitude. Hereditary trustee is not to beunderstood as from father to son or son to his son.Having regard to the comprehensive definition, it isenough if a usage is established for a long number ofyears evidencing exercise of hereditary trusteeship ofa family."15.Mr.N.R.Anantha Ramakrishnan, learned counsel for the firstrespondent relied on the decision in Radhakanta Deb and another, vs. TheCommissioner of Hindu Religious Endowments, Orissa reported in AIR 1981SC 798 and submitted that the appellants are not entitled to claimhereditary trusteeship, on the facts and circumstances of this case.The Full Bench of the Honourable Apex Court has held in the decision asfollows:The following tests may provide sufficientguidelines to determine on the facts of each casewhether an endowment is of a private or of a publicnature: (1) Where the origin of the endowment cannot beascertained, the question whether the user of thetemple by members of the public is as of right; (2) Thefact that the control an management vests either in alarge body of persons or in the members of the publicand the founder does not retain any control over themanagement. Allied to this may be a circumstance wherethe evidence shows that there is provision for a schemeto be framed by associating the members of the publicat large; (3) Where, however, a document is available https://hcservices.ecourts.gov.in/hcservices/ to prove the nature and origin of the endowment and therecitals of the document show that the control andmanagement of the temple is retained with the founderor his descendants and that extensive properties arededicated for the purpose of the maintenance of thetemple belonging to the founder himself, this will be aconclusive proof to show that the endowment was aprivate nature;(4)Where the evidence shows that thefounder of the endowment did not make any stipulationfor offerings or contributions to be made by members ofthe public to the temple, this would be an importantintrinsic circumstance to indicate the private natureof the endowment. 16.In the instant case, as contended by the learned SpecialGovernment Pleader appearing for the respondents 2 and 3, there is noevidence available on record to show that the founder of the temple wasthe ancestors of the appellants and were hereditary trustees. The sixthappellant, who was examined as P.W.1 before the Trial Court has admittedin his cross examination that the temple was taken over by HR & CEDepartment on 01.07.1979, and the appellants were only non-hereditarytrustees of the temple, appointed by the Commissioner, HR & CE. He hasfurther admitted in his evidence that even in the year 1962, as per theinvitation of "Bramorchavam" it has been made clear that variouscommunity people viz., Naidu, Chettiar, Josier and others had beencontributed funds for the construction of the temple. Ex.A20, markedthrough P.W.1, would also show that one Natesa Chettiar, KuppusamyChettiar, Subramania Josier, Ragavan Mastri were also stated as'Uppayatharagal'. It has been admitted that the writ petition filed bythe appellant in W.P.No.1783 of 1985 challenging the appointment of thefirst respondent herein Executive Officer, was dismissed by this Court.According to the learned counsel for the respondents, subsequentlyanother writ petition was also filed in W.P.No.3626 of 2005 and that wasalso dismissed. P.W.2 has admitted in his cross examination that thevillagers used to worship the deity in the temple. As per the evidenceof P.W.3, for worshiping the deity in the Temple, there is no need forthe general public to get permission from the appellants. Therefore,Public worship is a matter of right in the Temple.17. Therefore, in the light of the ruling of the Honourable ApexCourt, in the aforesaid decision reported in AIR 1981 SC 798 and theevidence of the appellants' witnesses, it is clear that the templebuildings were constructed and 'Brammorchavam' was performed with thecontribution of the public. Further, against the order passed in thewrit petition, no appeal has been preferred by the appellants.Therefore, the suit temple cannot be construed as a private templebelongs to the appellant. On the facts and circumstances, of this case,the plaintiffs were appointed by The Commissioner, H.R.& C.E. only asnon-herediatary trustee. https://hcservices.ecourts.gov.in/hcservices/

18.It is also not in dispute that show cause notices were issued bythe Assistant Commissioner, H.R. & C.E., on the allegation ofmisappropriation and mis-management of the temple. But, admittedly, noreply was submitted by the appellants within the time limit stipulatedas there is no dedication of property to manage and maintain the temple.It has been admitted that the temple is mainly based on publiccontribution. However, the trustees who were appointed by theCommissioner, H.R.& C.E. had deposited only a portion of the collectedamount in the Bank account. In the cross examination, it was put toP.W.1, that Ramachandra Naidu who was appointed as trustee had collectedRs.31,379.10ps, from the public as contribution. However, he haddeposited only Rs.7,637/- in the temple account. Similarly the otherappellants have also not deposited the entire money collected from thepublic, into the Bank account of the temple. All these facts wereraised even in the written statement by the respondents. However, thereis no justifiable defence from the appellants for the misappropriationof public money or mismanagement of the temple. Under suchcircumstances, the appellants are not entitled to claim to beherediatary trustees of the suit temple.19. On the facts and circumstances, this Court is of the view thatthere is no error or infirmity in the impugned Judgment and Decree to beinterfered with. In the result, confirming the judgment and decreerendered by the Court below, the appeal is dismissed. However, there isno order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSmiTo,1.The Subordinate Judge, Tiruvallur.2.The Record Keeper, V.R.Section, High Court, Madras.1 cc To Mr.N.R.Anantharamakrishnan, Advocate, SR.4826.1 cc To Mr.V.Nicholas, Advocate, SR.8745.1 cc To The Government Pleader, SR.8720.A.S.No.302 of 1997 NG(CO)RVL 24.03.2008