THE HONOURABLE MR v. S.Arunachalam

2.1. The temple in question is neither a 'temple' as definedunder Section 6(20) of the Tamil Nadu Hindu Religious and CharitableEndowments Act, 1959 (Tamil Nadu Act XXII of 1959) (hereinafter itmay be referred to the 'Act') nor a religious institution as definedunder Section 6.16 of the Act. It is a private temple founded bythe father of the plaintiff Thiru Sambandamurthy, in the year 1942from and out of his personal earnings. The founder had installed anIdol under a thatched shed and a pucca construction was put up in theyear 1968 from his own fund without taking donation from outside.The temple in question is situated in Survey No.30/4 in the landmeasuring about 0.10 cents which purchased by the founder ThiruSambandamurthy Gramani in the year 1942, through a sale deed dated25.09.1942 from his own funds.2.2. General public are not allowed to worship in the temple.The founder Thiru Sambandamurthy had died in the year 1976 andthereupon the temple was succeeded by the plaintiff herein and he hasbeen administering the day today affairs of the temple in question bysuccession in accordance with the line of succession in the privatetemple in question as per the direction of the founder. While he wasalive he had executed a settlement deed dated 31.08.1944 throughwhich he had endowed a land measuring about 2.62 acres for the deityin question, wherein a specific succession of trusteeship for theprivate temple has also been contemplated.2.3. There is no festival in the temple equally there is noutsava idol in the temple and hence, it is very clear that theinstitution in question is not a public religious institution so asto attract the provisions of the Act 22 of 1959. The Hindu Religiousand Charitable Endowments Department has not so far extended itsprovisions of the Act to the institution in question. The privatetemple has not been assessed for the purpose of levying contributionsalso. There is no dedication of any property to the deity inquestion by the public at large and no one outside the family of theplaintiff herein had ever interfered with the private management ofthe affairs of the institution in question.2.4. The plaintiff had filed an application before the seconddefendant, the Deputy Commissioner, H.R & C.E. AdministrationDepartment in O.A.No.14 of 1992 for a declaration that the suittemple is not coming under the purview of the Act. The DeputyCommissioner after adjudication has dismissed the application on7.02.1995. Then the plaintiff had preferred an appeal to the firstdefendant, The Commissioner, H.R.& C.E Administration Department inA.P.No.54 of 1995 which was also dismissed on 20.12.2000. https://hcservices.ecourts.gov.in/hcservices/

2.5. The plaintiff was therefore, constrained to file a suitunder Section 70(1) of the Hindu Religious and Charitable EndowmentAct 1959 before the Trial Court. 2.6. The defendants have contended in their written statementthat the suit temple is a public religious institution as definedunder Section 6(20) r/w. Section 6(18) of the Tamil Nadu HR & CE Act,1959 brought under the administrative jurisdiction of the AssistantCommissioner, HR & CE Chennai and as such all the provisions of theHR & CE Act are squarely applicable to this public temple. Theplaintiff did not adduce any documentary evidence before thedefendants during enquiry to show that the temple was constructed inthe year 1942 and renovated in its present form in the year 1968 byhis father Sambandamurthy from his personal funds. The temple hasbeen gifted and dedicated with the lands comprised in the followingSurvey Numbers in favour of the deity for specific purposes ofperforming pooja and other festivals;1. S.No.30/1-6 cents of land in Kodungaiyur Village,2. S.No.30/4-10 cents of land in Kodungaiyur Village,3. S.No.110/1-1 Acre 72 cents in Selaivoyal Village,4. S.No.111/1-90 cents of 1 land in Selaivoyal Village.2.7. The land specified in item No.2 alone was proved to be apersonal property purchased by a Sambandamurthy, father of theplaintiff by a registered sale deed No.2389 dated 14.02.1943 andlater on by an another registered sale deed No,1289 dated 31.08.1944and these lands together with 2 acres 78 cents of lands have beendedicated by Sambandamurthy in favour of the deity. No documentaryevidence was produced before the defendants that the temple inquestion was intended for private worship of the members of theplaintiff's family or that public were not allowed to worship in thattemple. The object of donating the land is specifically mentionedfor the performance of Abishegam and Aradhanas during the(Panjaparvam) festival in the temple. These kinds of festivals nodoubt attract large number of devotees and there will certainly be alarge gathering of public worshippers. Hence, there is no basis onthe contention of the plaintiff that the general public is notallowed inside the temple for worship.2.8. As held in 1950 II MLJ 541, the presence of an idol is not alegal requisite under the definition of a temple. As such the non-presence of utsava idol and festivals will in no way help theplaintiff to prove his case. Any endowed property of a public templebecomes a property of the deity and even person endowed the propertycannot claim any right over the same. https://hcservices.ecourts.gov.in/hcservices/

2.9. The plaintiff's father would have definitely viewed thetemple only as public temple and that is why he had endowed hispersonal property for it's future. If he had viewed both the templeand the property as his personal assets, he would not have endowedproperty since there is no necessity for the same. The plaintiff hadsold the land in public auction for a sum of Rs.4,45,400/- byobtaining an order from the High Court, Chennai in C.S.No.766/88 forthe reason that no income was derived from the above lands and thatthe lands were prone to encroachment by outsiders. The plaintiff haswantonly suppressed these facts since he could have thought it wouldcreate negative impact on his pseudo claim. Since the plaintiff hasnot produced any iota of evidence to prove the fact that the templein question is a private temple, the claim of the plaintiff has to beturned down.3. Based on the pleadings of the parties to the suit, the TrialCourt has formulated the following two issues;1.Whether the plaintiff is entitled to set aside theorder of the Commissioner and declaration asprayed for ?2. To what relief ?4. The plaintiff in order to establish his claim had examinedhimself as PW 1. During the course of his cross-examination Exs.A1to A9 were marked. On the other hand one Smt.V.N.Ranipadmini, wasexamined as DW 1. No documentary evidence was led on behalf of thedefendants. On evaluating the evidences available on record, theTrial Court has proceeded to decree the suit as prayed for on28.05.2005. Impugning the judgment and decree of the Trial Court,the defendants being the Commissioner and Deputy Commissioner ofHindu Religious and Charitable Endowments Administration Department,Chennai, have preferred this appeal.5. This court has given careful consideration to the argumentsadvanced by the learned Special Government Pleader appearing for theappellants and the learned counsel for the respondent/plaintiff aswell. The core question to be decided is whether the temple inquestion is a private temple or a public temple. 6. It is apparent from the materials available on record thatpreviously the respondent/plaintiff had filed an application beforethe second appellant/second defendant, Deputy Commissioner of HR & CEin O.A.No.14 of 1992 for declaration that the suit temple is notcoming under the purview of the Act which was dismissed andchallenging that order he had preferred an appeal in A.P.No.54 of1955 before the first defendant Commissioner HR & CE. That appeal https://hcservices.ecourts.gov.in/hcservices/ was also dismissed on 20.12.2000. The above said facts can be drawnfrom Exs.A1 and A2 respectively. In Ex.A2 viz., the order dated20.12.2000 and made in A.P.No.54 of 1995 (D2) the first defendant hasconcluded that there is nothing contained in the documents to showthat the temple in question was intended for private worship of themembers of the appellant family or the public were not allowed toworship in the temple. He has also concluded that the object ofdonating the lands is specifically for the purpose of performance ofAbishegam and Aradhanas during the (Panjaparvam) festival in thetemple and during the festivals there will certainly be a largegathering of public worshippers and hence, there is no basis on thecontention of the appellant that the general public is not allowedinside the temple for worship.7. In this connection the learned counsel for therespondents/plaintiff would submit that the Commissioner had nottaken his decision independently on the basis of the materialsavailable on record, but he had taken this decision dependently onthe conclusion of Deputy Commissioner in his order in O.A.No.14 of1992 dated 27.02.1995. He has also maintained that the order of thefirst appellant/defendant in Appeal No.54 of 1995 was only based onmere surmise and guesture and was not based on the materials producedby the respondent/plaintiff. While advancing his arguments he hassubmitted that the temple which is in question in the suit is adenominational temple which is not defined in the Act.8. To have clarity on the subject matter, this Court is of viewthat it may be relevant to refer Section 63 of the Act. Section 63of the Act enacts as follows; '63. [Joint Commissioner or] Deputy Commissioner to decidecertain disputes and matters – Subject to the rights ofsuit or appeal here-in after provided, [Joint Commissionerof the Deputy Commissioner as the case may be] shall havepower to inquire into and decide the following disputes andmatters:-(a)whether an institution is a religiousinstitution.(b)whether a trustee holds or held office as ahereditary trustee;(c)whether any property or money is a religiousendowment;(d) whether any property or money is a specificendowment;(e)whether any person is entitled, by custom orotherwise, to any honour, emolument or perquisite https://hcservices.ecourts.gov.in/hcservices/ in any religious institution; and what theestablishment usage of a religious institution isin regard to any other matter;(d) whether any property or money has been given forthe support of an institution which is partly ofa religious and partly of a secular character, orthe performance of any service or charityconnected with such an institution or theperformance of a charity which is partly of areligious and partly of a secular character orwhere any property or money given is appropriatedpartly to religious and partly to secular uses,as to what portion of such property or moneyshall be allocated to religious uses.'9. In the above context, the learned counsel for therespondent/plaintiff would submit that the Joint Commissioner or theDeputy Commissioner are empowered to decide the disputes enlistedunder Sub-Section (a) to (g) of Section 63 and hence, therespondent/plaintiff was constrained to file an application underA.P.No.14 of 1992. Sub-Section (1) to Section 64 of the Actcontemplates with regard to power of (Joint Commissioner) or DeputyCommissioner to settle schemes. Sub-Section 1 to Section 64 enacts as follows;“(1) When the [Joint Commissioner or DeputyCommissioner as the case may be], has reason tobelieve that in the interests of the properadministration of an institution, a scheme shouldbe settled for the institution, or when not lessthan five persons having interest make anapplication in writing, stating that in theinterests of the proper administration of aninstitution a scheme should be settled for it, the[Joint Commissioner, Deputy Commissioner] shallconsult in the prescribed manner the trustee andthe persons having interest, and if, after suchconsultation, he is satisfied that it is necessaryor desirable to do so, he shall, by order, settlea scheme of administration for the institution.”10. From the above wordings of Section 64(1) it is thus clearthat if there are reasons to be believed either the JointCommissioner or the Deputy Commissioner as the case may be in theinterest of proper administration of an institution they can frame a https://hcservices.ecourts.gov.in/hcservices/ scheme for the institution. When an application is made to them bythe persons not less than members having interest over the religiousinstitution, then the Joint Commissioner or the Deputy Commissionershall consult in the prescribed manner to the trustee and to theperson having interest and if they are satisfied, then the schemeshall be settled for better administration of the institution.11. Section 107 of the Act contemplates that the Act not toaffect rights under Article 26 of the Constitution. It reads asfollows;“Nothing contained in this Act shall, save asotherwise provided in Section 106 and clause(2) ofArticle 25 of the Constitution, be deemed toconfer any power or impose any duty incontravention of the rights conferred on anyreligious denomination or any section thereof byArticle 26 of the Constitution.”12. As per the case of the respondent/plaintiff, the temple inquestion is a private temple and as such it could be termed asdenominational religious institution. In this connection, we mayrefer to Article 26 of the Constitution of India. Article 26guarantees certain rights to every religious denomination, subject to'public order, morality and health', and the rights are capable ofbeing enforced by or on behalf of a denomination. This dictum islaid down in Devaraja Shenoy vs. State of Madras, AIR 1953 Madras 149.13. As observed by the Apex Court in Sri Adi Visheshwara of KashiVishwanath Temple, Varanasi, vs. State of U.P., (1997) 4 SCC 606,this Article (Article 26) does not create rights in any denominationor a section, which it never had. It merely safeguards andguarantees the continuance of a right which such denomination or thesection had. Article 26 of the Constitution of India reads asfollows:"26. Freedom to manage religious affairs Subject topublic order, morality and health, every religiousdenomination or any section thereof shall have the right(a) to establish and maintain institutions forreligious and charitable purposes; (b) to manage its own affairs in matters of religion;(c)to own and acquire movable and immovable property;and (d)to administer such property in accordance withlaw." https://hcservices.ecourts.gov.in/hcservices/

14. While Article 25 of the Constitution of India extends to allpersons, Article 26 is confined to religious denominations. Hence,there is no anomaly in the fact that while the rights under both theArticles 25 and 26 are subject to 'public order, morality andhealth', Article 25 is also subject to 'other provisions' of PartIII, while Article 26 is not. This has been envisaged by the Hon'bleSupreme Court in Narendra Prasadji Anand Prasadji Maharaj, AcharyaMaharaj Shri v. state of Gujarat, AIR 1974 SC 2098.15. In Commissioner H.R.& C.E v. Lakshmindra Thirtha Swamiar(1954) SCR 1005:AIR 1954 SC 282, the phrase 'Denomination' has beenexplained in the following manner: 'Denomination' – The word 'denomination' hasbeen defined to mean "a collection of individualsclassed together under the same name; a religioussect or body having a common faith andorganisation and designated by a distinctive name.To constitute a religious denomination, the following threeconditions have to be complied with:1. It must be a collection of individuals, who have asystem of beliefs or doctrines which they regardas conducive to their spiritual well-being, i.e.,a common faith,2. A common organisation,3. Designation by a distinctive name.16. The term 'Denomination', as defined in Black's LawDictionary 6th Edition at Page No.435, means:'The Act of nominy. A society of individualsknown by the same name, usually a religioussociety.'17. The phrase 'Denominational Institution' has been defined inthe Black's Law Dictionary in the same edition and the same pagethat:'Institution controlled or operated by areligious sect or organisation and henceforbidden to receive governmental aid because ofconstitutional separation of Church and State.'18. Hence, as contemplated under the proviso to Section 107 ofthe Act there is nothing in the Act in contravention of the rightsconferred under Article 26 of the Constitution of India.19. It may also be relevant to refer Section 51 of the Act. Sub-clause (a) to Section 51 was omitted by the Tamil Nadu Hindu https://hcservices.ecourts.gov.in/hcservices/ Religious and Charitable Endowments (Amendment) Act, 2006 (Tamil NaduAct 15 of 2006) with effect from 16.07.2006. Sub-clause (b) toSection 51 contemplates that the Government, the Commissioner, theJoint Commissioner, the Deputy Commissioner or the AssistantCommissioner in making appointments of trustees under Section 47 orSection 49-A, as the case may be, shall have due regard to the claimsof persons belonging to the religious denomination for whose benefitthe institution concerned is chiefly intended or maintained.20. Section 108 of the Tamil Nadu Hindu Religious and CharitableEndowments Act, 1959 creates an embargo to file a suit in respect ofadministration or management of religious institutions etc., Section108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act,1959 enacts as follows:"108. Bar of suits in respect of administrationor management of religious institutions etc.- Nosuit or other legal proceeding in respect of theadministration or management of a religiousinstitution or any other matter dispute fordetermining or deciding which provision is madein this Act shall be instituted in any Court ofLaw, except under, and in conformity with, theprovisions of this Act."21. In this connection, the learned counsel for therespondent/plaintiff would submit that the plaintiff had filed anapplication in O.A.No.14 of 1992 before the second defendant theDeputy Commissioner, H.R. & C.E. Admn., for declaration that the suittemple is not coming under the purview of the Act. He has also addedthat since the application was dismissed on 27.02.1995, he had filedan appeal in A.P.No.54 of 1995 before the first defendant, who is theCommissioner, H.R. & C.E. Administration Department, which was alsodismissed on 20.12.2000. Hence, with no other option, the plaintiffas indicated in the proviso to Section 70(1) of the Act wasconstrained to file a suit before the Trial Court.22. The learned counsel for the respondent/plaintiff whileadvancing his arguments has submitted that when it was contended bythe plaintiff that the temple in question is a denominational andprivate religious institution, it is for the Hindu Religious andCharitable Endowment Department to prove and establish that thetemple in question is a public temple. 23. In support of his contention, he has placed reliance uponthe decision of this Court in Kuppuswamy vs. The Commissioner, H.R. &C.E. & another, 2011-1-L.W.351. In Paragraph No.29 of the above https://hcservices.ecourts.gov.in/hcservices/ cited Judgment, the learned Single Judge of this Court has observedas follows:“29. It is not in dispute that generally theburden of proof is on the plaintiff to prove thecase. But, in the case of dispute with regard tothe status of the temple, whether it is a publictemple or a private temple, the burden is on theHindu Religious and Charitable EndowmentDepartment to prove that the temple is a publictemple.”24. The same question as to whether the temple is a privatetemple or a public temple was arisen in Mundacheri Koman vs. AchuthanNair, 1934 LW Vol.XL 428, P.C.Appeal No.3 of 1933. For the abovesaid question, the Privy Council has answered that:“In the greater part of the Madras Presidency,where private temples are practically unknown, thepresumption is that temples and their endowmentsform public charitable tusts. But thispresumption does not apply in the case of templesin Malabar. Hence in the case of a temple inMalabar, the decision of the question whether thetemple is a public or private temple reallydepends on the inferences to be derived from theevidence as to the way in which the templeendowments have been dealt with the evidence as tothe public user of the temple.”25. On the above line, the learned counsel for therespondent/plaintiff has also placed reliance upon an anotherdecision in T.Mudaliar vs. Commr. H.R. & C.E. AIR 1976 Madras 26. Inthis case, the ancestors of Periaveettu Mudaliar Family about 1000years ago constructed Shiva temple at Alur on sites belonging to themwith their private funds. The Ashtabandhan Prathishtan was made bythe ancestors. There was no evidence expressly as to dedication, butfrom time immemorial these temples were recognized as the privatetemples of the Periaveettu Mudaliar family. The State of Travancoreas it then was recognised private ownership of religiousinstitutions. There was no pavement on the prakaram as in the caseof other temples. There was no gopuram for the temple. There wasneither the permanent flag itself (Dwajasthambam) nor was there evena structure for installing a temporary flag staff for celebratingperiodical utsavam of the temple. No provision had been made fortaking out the idols of the temple on procession to any place outsidethe inner compound of the temple. There was no hundi for collection https://hcservices.ecourts.gov.in/hcservices/ from worshippers of the temple. There was no bell and when theCommissioner visited the temple at the time of Deeparadhana, therewere no outsiders excepting himself and the two inspectors of thedepartment. The provision of the door and the compound wall and thesite of the temple was such that it was incapable of attractingmembers of the public to resort therein as of right either forworship or for participating in any celebration therein. Thequestion was whether such a temple was a public temple or a privateone. After analysing the materials on record, this Court has heldthat the temple was a private one.26. In Paragraph No.13 of the above cited Judgment, the HON'BLEJUSTICE RAMAPRASADA RAO has held that:“13. In the beginning, we have set out theprinciples which have to be borne in mind indeciding whether a temple is a private one or apublic one. At the outset we have to mentionthat the indicia and the necessary features,which ought to be present in a temples is absentin the instant case. Utsavamurthies are nottaken in procession. There is no gopuram. Thereis proof of Ashtabandhanan Prathishta having beenmade by the ancestors. There is no externalindicia which is ordinarily present in publictemples in South India. The compound wall is notto be equated to aprakaram. There were noworshippers at the time when the Deeparadhananwas done. Excepting the representative of theCommissioner and the two Inspectors, there is noproof that any member of the public participatedin it.”27. In T.D.Gopalan vs. The Commissioner of Hindu Religious andCharitable Endowments, Madras 1973 2 MLJ 43, the same question wasarisen. The Apex Court has held that:“The High Court did not attach sufficientimportance to three matters which in the presentcase, were of material consequence, namely: (1)that the origin of the temple mandapam had beenproved to be private; (2) that the management hadremained through out in the members of aparticular family; and (3) that there was absenceof any endowed property. There was no gopuram ordwajasthambam nor a nagara, bell nor hundial inthe suit temple. In view of these the High https://hcservices.ecourts.gov.in/hcservices/ Court's conclusion that the temple is not privateis acceptable.”28. The learned counsel has also, in support of his contention,has placed reliance upon the following decisions:i.Chonachalam Pillai and others vs. Sankaranarayana Pillai(died) and others, 1970 1 MLJ 78,ii.E.Subbiah Pillai vs. The Commissioner, H.R. & C.E., 1977L.W. 94,In this case, it is held that:“The ordinary Hindu sentiment is not to prohibitany worshipper from worshipping in a temple, eventhough the temple was intended mainly for theworship of the members of the family of thefounder. Merely because the temple is situated ona natham, it cannot be called a public temple.”iii.R.Mayaperumal and another vs. Azhagappan Nadar (died) andothers, 1994 2 MLJ 422,iv.Chennammal vs. The Commissioner for Hindu Religious andCharitable Endowments, 1973 MLJ 442,In this case, this Court has observed that:“The main characteristic of a public temple isthat it is intended for the use of the public ora section thereof. On the other hand, privatetemples are intended for the worship by themembers of the family of the donor exclusively.The mere fact that outsiders are allowed toworship in a temple cannot necessarily mean thatthe temple was dedicated to the public, as noHindu will ever prohibit strangers from offeringworship to the deity enshrined in his privatetemple. In all such cases, worship by outsidersis referable to the leave and licence granted bythe owner and cannot be indicative of anydedication to the public.”v. Pichai vs. The Commissioner, H.R. & C.E., AIR 1971 Madras405,In this case, this Court has observed that:“Under Section 6 Clause 20, the definition oftemple is wide enough to include any place ofpublic religious worship irrespective ofinstallation of idols or a building or a tower orstupi. Presence of idols is not an essential https://hcservices.ecourts.gov.in/hcservices/ requisite of temple. The only conditions arethat it must be dedicated to, or for the benefitof, Hindu community or a section thereof or usedby it as of right.”vi.In Malayaperumal Mudaliar vs. The Commissioner, H.R. &C.E., 1975 2 MLJ 310 also the same ratio has been held togive impression that the temple is a private temple.29. On coming to the instant case on hand, the case of therespondent/plaintiff is that the suit temple is a private temple. Onthe other hand, the appellants being defendants have contended thatit is a public temple. The Trial Court on the basis of Ex.A4 saledeed dated 21.10.1944 has held that this document would itselfestablish that the land holding in survey No.30/4 belonged toSambandamurthy, the father of the plaintiff. The Trial Court hasalso based on Ex.A5, dated 21.10.1944 has held that Sri Lakshmi AmmanTemple was existing in the above land holding. From the above facts,the Trial Court has also held that it is abundantly clear that theschedule temple could have been established only by the father of theplaintiff. 30. This Court has also scrutinized the evidence available onrecord. The evidence given by P.W.1 has not been controverted by thetestimonies of D.W.1. Excepting D.W.1, no contra evidence wasadduced to rebut the contention of the respondent/plaintiff.31. On the other hand, the learned Special Government Pleaderappearing for the appellants would contend that the Trial Courthaving found that the founder had dedicated the property undersettlement deed dated 21.08.1944 in favour of the deity ought to havebeen held that the temple is a religious institution as defined underSection 6(8) of the H.R. & C.E., Act. He has also adverted to thathaving seen that the temple has the most important element, namely,Dwajasthambam and public worship, the Trial Court ought to have heldthat the temple in question falls within the definition of 'ReligiousInstitution'.32. As held in the catena of decisions aforecited, the merededication or mere worship of public will not change the character ofthe temple. From the evidence available on record, therespondent/plaintiff has unresistingly established that the suittemple is a private temple and not public temple.33. Having regard to the Judgment of the Trial Court, this Courtis of considered view that no adequate grounds available in the https://hcservices.ecourts.gov.in/hcservices/ memorandum 4of appeal to interfere with the Judgment of the TrialCourt.34. In the result, the appeal is dismissed and the Judgment andDecree dated 28.03.2005 and made in O.S.No.1275 of 2001 on the fileof the learned V Assistant Judge, City Civil Court, Chennai areconfirmed. Consequently, connected miscellaneous petitions areclosed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarprm/krkToThe V Assistant Judge,City Civil Court, Chennai.1 CC to Mr.Thiruvengadam, Advocate, SR.48923 A.S.No.370 of 2007MG(CO)SRA(13/12/2011)