High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20.12.2007CORAM :THE HON’BLE MR. JUSTICE S.TAMILVANANA.S.No.848 of 1996 D.Shanmugha Desikar .... Appellantvs.1. The Commissioner Hindu Religious and Charitable Endowment No.119, Nungambakkam High Road, Madras – 34.2. The Deputy Commissioner Office of the Commissioner, Hindu Religious and Charitable Endowment No.119, Nungambakkam High Road, Madras – 34. .... RespondentsAppeal filed against the Judgment and Decree dated 28.06.1996made in O.S.No.120 of 1990 on the file of the Sub Judge,Tiruvallore.For Appellant : Mr.P.GopalanFor Respondents : Mr.M.R.Murugesan, Spl.G.P. H.R.& C.E., JUDGMENTThis appeal is directed against the Judgment and Decree, dated28.06.1996 made in O.S.No.120 of 1990 on the file of the Court ofthe Subordinate Judge, Tiruvallore. 2. The plaintiff in the suit before the trial court is theappellant herein. The appellant / plaintiff had filed the suit,seeking to set aside the order, dated 26.03.1990 passed by thefirst respondent in A.P.No.44 of 1987 and declare that AnjamadathurPillayar alias Vinayagar temple in No.27, South Mada Street,Tiruvottiyur is a private temple of the plaintiff. 3. It is seen that the appellant / plaintiff himself wasexamined as P.W.1, apart from one Nataraj, who was examined as https://hcservices.ecourts.gov.in/hcservices/ P.W.2, apart from marking documents Exs.A.1 to A.9. An Inspector ofHindu Religious and Charitable Endowment has been examined asD.W.1. Considering the oral and documentary evidence, the trialcourt dismissed the suit. Aggrieved by which, this appeal has beenpreferred by the plaintiff in the suit.4. Mr.P.Gopalan, learned counsel appearing for the appellantwould contend that there is no temple in the property in question,only vinayagar idol was installed inside the private property,belongs to the appellant to perform pooja by the family members ofthe appellant and property tax had been assessed in the name of theappellant’s father and after his demise, the appellant is payingthe property tax. Learned counsel for the appellant furthersubmitted that the property in question was bequeathed by thetestator, Lakshmiammal under her Will, dated 26.04.1940 in favourof Doraiswamy Desikar, father of the appellant and after his death,the appellant herein inherited the same. According to him, afterthe demise of the legatee, the appellant’s father was performingpooja and also ‘thithi‘ every year, as per the Will. The vinayagaridol has been installed in the private patta land of hispredecessors, for the purpose of their worship and for performingpoojas and that no member of the public or even neighbours arebeing allowed to worship the vinayagar idol. According to him,there is no public donation or contribution for performing pooja or‘thithi’ and that there is no Gopuram, Nandhi, Pragaram, Hundialetc and that there is no dedication of the property by the publicin favour of the temple and therefore, it could have been decidedonly as private temple by the trial court and decreed the suit, asprayed for in favour of the appellant. 5. Per contra, Mr.M.R.Murugesan, Special Government Pleader(H.R. & C.E) appearing for the respondent contended that whileclaiming the suit property as a private temple, as per the TamilNadu Hindu Religious and Charitable Endowment Act, the burden isupon the appellant to establish that it is a private temple belongsto the petitioner and his family members. Merely because there isno Gopuram, Nandhi, Pragaram, Hundial, it cannot be presumed thatit is a private temple, in the absence of any positive evidence infavour of the appellant herein.6. According to the learned counsel for the appellant, if atemple was not used as a place of public religious worship by Hinducommunity or section thereof and none of ingredients of temple viz,gopuram, nandhi etc., were available in the temple and nodedication of property by public in favour of temple, the templedoes not come within the purview of religious institution, asdefined under Section 2 (18) of Tamil Nadu Hindu Religious andCharitable Endowments Act (22 of 1959). In support of hiscontention, the decision, Commr., H.R. & C.E (A) Dept. vs.Jambulingam Pillai, reported in 1996 A I H C 3192 was cited. https://hcservices.ecourts.gov.in/hcservices/

7. This Court, by its ruling in Commissioner, H.R. & C.E.(Admn) Department, Madras vs. Sundaraswamy Gounder, reported in2001 (2) MLJ 737, has held that mere circumstances, that the peoplein the locality were visiting a temple, will not make a privatetemple into a public one.8. In V.Mahadeva vs. Commissioner, H.R. & C.E, reported in1956 (1) MLJ 309, the Division Bench of this Court held asfollows :“ A temple which began as a private temple may,in course of time, become a public temple byexpress or implied dedication, the latter beingproved by use of the temple by the Hindu Publicas of right and without taking any permissionfrom anyone. Under Sec. 9(12) no expressdedication on a definite date need be proved,if it is prove beyond all doubt that the templehas been used as of right by the Hindu publicas a place of religious worship without takinganybody’s permission, leading to anirresistible inference of implied dedication.The law requires only the conditions stipulatedunder S.9(12) to be satisfied before a templeis declared to be a public temple. Once theseconditions are satisfied, the temple will be apublic temple under Sec.9(12), though thoseconditions must of course be strictly proved.There is nothing in our law preventing a thingwhich began as a private property becomingpublic property later on.”In the aforesaid decision, the claim was that Sri VallabhaVinayagar temple in George town, Chennai was a private temple. TheDivision Bench of this Court held that even a private temple may incourse of time become public one by express or implied dedication.Accordingly, the Division Bench rejected the claim that it was aprivate temple, on the ground that the Hindu public used this as aplace of worship as of right and offerings were received from thepublic. 9. In the instant case, the appellant / plaintiff has statedthat the site and the temple thereon belonged to the father of theplaintiff, who became the owner under a registered Will, dated26.04.1990 and the Will has been marked as Ex.A.5 in the suit. Asper the recitals of the Will, Lakshmiammal, w/o SusanthapuriDesikar @ Samarapuri Desikar had sold certain properties in favourof Duraisamy Desikar, s/o Kaalathi Desikar, described as “A”Schedule of property therein. As per this Will, it is clear that https://hcservices.ecourts.gov.in/hcservices/ the said Lakshmiammal died issueless and her husband pre deceasedher. However, in the evidence, the appellant, who was examined asP.W.1 has stated that Lakshmiammal was his grand mother. Theaforesaid statement is contrary to the averments of Ex.A.5.Further, as per this Will, the said Duraisamy Desikar had toperform daily poojas and special abishekam at Sri AnjamadathurPillayar temple and also her annual thithi. Therefore, it is clearthat the property described in Schedule “D” and “E” have beenvested for performing certain specific duties by the deceasedLakshmiammal.10. As contended by the learned counsel appearing for therespondents, there is no evidence available on record to show thatthe said Lakshmiammal had absolute right over the suit property andthere is no evidence to show that the superstructure of the templehad been constructed by Lakshmiammal or her predecessor. Though theappellant has claimed the suit temple as his private property, hehas not produced the required documents to substantiate his claim.11. Further, as per the evidence of D.W.1, though theInspector of H.R. & C.E. has admitted that there was no gopuram orpalipeedam for the temple, according to her, while inspecting thetemple, she could see the general public use to visit the templeand perform poojas and as per the records of the H.R. & C.E., itwas under the contral of Hindu Religious and Charitable Endowment,for which there was a notification by the Commissioner, H.R. & C.E.Admittedly, the appellant has not produced any Legal Heircertificate to show that either himself or his father was a directlegal heir of Lakshmiammal, though he has claimed in his evidencethat he is the grand son of Lakshmiammal. As per the Will, Ex.A.5,produced by the appellant, the said Lakshmiammal died issueless.12. In the aforesaid circumstances, this Court is of the viewthat it cannot be decided that the suit temple is the privatetemple, exclusively belongs to the appellant herein, on the basisof the available evidence and further, there is no evidence to showthat Lakshmiammal had absolute title to the property, except herregistered Will, Ex.A.5. 13. It is also necessary to find out the superstructure,location of the temple and also the physical features of the templeto decide the issues involved in the suit, for which an AdvocateCommissioner shall be appointed to inspect the property and filehis report.14. In the order passed by the Hindu Religious and CharitableEndowment, dated 26.03.1990, based on the Inspector’s Report,Ex.C.1, marked therein, the Commissioner, H.R. & C.E has held thatthe temple has all the features for public temple and that there is https://hcservices.ecourts.gov.in/hcservices/ public worship, including performance of poojas etc and alsodistribution of prasadams to the worshippers, that the incomefrom the properties has not been accounted for, that theproperty tax receipt might have been for the shop adjacent to thetemple and that none of documents thrown light to prove the privatenature of the institution. 15. In such circumstances, to meet the ends of justice, I amof the view that it would be proper to remit back the matter to thetrial court for fresh disposal, according to law, since furtherevidence on factual aspects are needed for proper disposal.16. In the result, the appeal is allowed and the impugnedJudgment and Decree, passed by the trial court are set aside andthe matter is remitted back to the trial court for fresh disposal.The trial court is directed to provide reasonable opportunity toboth sides to adduce further evidence, both oral and documentaryand dispose the same, according to law, independently, based on theevidence, within three months from the date of receipt of the copyof this order. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.tsvnTo1. The Subordinate Judge,Tiruvallore.2. The Record KeeperVR Section, High Court, Madras.1 cc to Mr.P. Gopalan, Advocate, sR. 75713 A.S.No.848 of 1996JRG (CO)kk 30/1