The Commissioner Hindu Religious and Charitable Endowments Department Madras v. Ramalinga Reddiar

2. The germane facts of the case are set out below:The property mentioned in the plaint schedule is a Samathi PrivateMutt and Institution and the first plaintiff is the Managing the sameand maintaining the Samathi in her own rights as per the wishes ofthe founder. The founder of the Mutt and Institution is one BatchaReddiar. The first plaintiff is the wife of Batcha Reddiar. For thesaid Batcha Reddiar and for the first plaintiff, they have no issues.Since the said Batcha Reddiar has no issues, he decided to erect aSamathi in the plaint mentioned property. Accordingly, he purchasedan extent of 0.27 cents in S.No.51/7 from one Kanoovu Ammal on26.3.1921 for a valuable consideration as per sale deed. Since hewanted to have a permanent Samathi to be remembered and worshipped byits community people and relatives, he purchased the above saidproperty which lies on the northern side of the suit village.Further as per the custom prevailing in a village, Samathi shouldalways be erected at the out skrits of the village and on thenorthern side. Therefore, the said property has been purchased byBatcha Reddiar with an intention of erecting a Samathi for him. a) The said Batcha Reddiar as per the customs followed byhis community in order to make it divine and to give sanctity hasinstalled a Vinayagar Idol, then called as "Sundara Vinayagarwtihout any superstucture. In an aspicious day of Karthigai 1921, heput up a superstructure over the idol and installed another idol ofDhandayudapani made up of granite stone. For the purpose ofmaintaining his Samathi by the descendants in the future, hepurchased the properties for Samathi and Mutt created by him.Notwithstanding the fact that the Mutt and Samathi are described astemple in the instruments through which properties were purchased.Out of Batcha Reddiar's own fund, the Mutt and the proposed Samathiwas never made public and it was always managed and maintained onlyby Batcha Reddiar as his private property. b) Neither the third parties nor any villagers wereallowed to worship the Vinayagar and Dhandayudapani idols as a matterof right. More over, in all the documents and instruments, the saidBatcha Reddiar described himself as 'Dharmakartha' of his Mutt andTrustee and from the recitals of the said documents, it can beinferred that Batcha Reddiar wanted to create an irrovocable Mutt inwhich neither of his legal heirs should claim the independent rightand that is why he described himself as a 'Manager'. He died on28.12.1948 without any issues leaving the first plaintiff as his soleheir. As per the wishes of Batcha Reddiar, the first plaintiff hastaken up the management of the Mutt and endowment created by herhusband, buried her husband Batcha Reddiar on the south western ofthe built up area and that the first plaintiff erected a Samathi withinscriptions on stone plaque as wished and directed by Batcha https://hcservices.ecourts.gov.in/hcservices/ Reddiar. The first plaintiff has installed a Lingam idol over theSamathi, since the deceased her husband Batcha Reddiar has been astaunch Shivatte as incoronation of Batcha Reddiar's soul. The firstplaintiff and her community people and the relatives believed thatthe soul of Batcha Reddiar is incoronated with Linga and that is whythe Linga was installed as per Hindu Ahamas and Sastras. c) The first plaintiff, after the demise of her husbandBatcha Reddiar wanted to create Samathi as a permanent structure putup pucca superstructure and constructed a pucca compound wallsurrounding the Samathi and over the idols. The first plaintiff hascontributed her savings and profits derived from the endowed propertyfor the erection of the said pucca structure . The first plaintiffhas been and is maintaining the Samathi and idols without anyintervention of the third parties in the village. She has beenperforming Khala Pujas and putting on lights to the samathi and tothe idols erected by her husband in reverence and remembering of herhusband in soul. No third parties are allowed to participate inthis regard. d) In the suit village, majority of the caste Hindusbelong to Reddiar Community and most of them are in a way related tothe first plaintiff and Batcha Reddiar. Besides Reddiar Community,there are people in stray numbers in Yadava's Community and exceptthe first plaintiff and her relatives, without her permission andconsent were allowed to enter into the first item of the suitproperty. In the year 1972, the first plaintiff put up a Mandabam onthe Eastern side of the Samathi and idols out of her own fund.Besides, sinking a well in the first item of the suitproperty,thereupon, she built another Mandabam on the southern sideof the suit property in the year 1982, out of the income derivedfrom the endowed properties. She has also installed Navagrahas inthe said property, since she is also a staunch Shivatte. The lockand key for the said properties is always kept by her. The firstplaintiff has appointed a person to perform Poojas and naivethyams asand when desired by her and the said person shall open the saidproperty only with her permission to carry out the said functions.Thus, the first item of the suit property has been treated andmanaged by Batcha Reddiar and the first plaintiff as their privateproperty and none else than the said persons shall enter into thesaid property and worship the idols installed as a matter of right. e) Added further, the abovesaid property has never beentreated as a temple. As per the Hindu Ahamas, a Hindu temple whichis being treated as a public temple will have a Thuvajasthambam,Balibeedom, Vaganas, Urchavars and Brahmordhavam on a fixed day ofan year, when the urchavamoorthy is taken around the Mada streets ofthe temple. In the first item of the suit property, there are noThuvajasthambam, Balibeedam, Vaganas, Urchavars and there is no https://hcservices.ecourts.gov.in/hcservices/ Brahmorchavam. Since the said property is a Samadhi and privateinstitution raised by the first plaintiff and her husband, it doesnot have the said things. If the said property is a temple , itshould have been built in the middle of the village so as to havemada veethis,but the said property was built at the out skirts ofthe village. There is no hundi installed in the said property and atno point of time, contribution from public were received or acceptedfor its maintenance and management. f) Batcha Reddiar even though appointed a manager, hewanted a supervision over the manager and in anxiety to see theendowment and poojas are not neglected by the Manager and theManager is made responsible to panchayatars. The Panchayatars havenot been named and not given any right of taking over the managementin case of default nor have been given the right of entry to performpoojas. To prevent third parties from encroaching the properties,Batcha Reddiar wanted somebody to see that it is prevented by hiscommunity people and relatives and hence he mentioned panchayatarsin the deeds. There is no single occasion till today for thepanchayatars to intervene since the first plaintiff is carrying outthe kattalai as directed by her husband and in the absence of thePanchayatars exercising their power. The suit properties should beconstructed to be Samathi, private Mutt and Institution. g) The second appellant/second defendant has taken aview that the suit first Item is a public temple which comes withinthe ambit of HR & CE Act. Therefore, the first plaintiff has beenobliged to file an application to declare the suit properties asSamathi and Mutt in O.A.31 of 1979. However, the secondappellant/second defendant passed an order erroneously hold that thesuit propeprty is a public temple on 24.11.1980. The first plaintiffhas filed an appeal in A.P.No.65 of 1981 as per Section 69(1) of theHR & CE Act. Aggrieved against the said order passed by the secondappellant/second defendant. However, the first appellant/firstdefendant has followed the order passed by the secondappellant/second defendant and confirming the order dated 7.12.1987passed in A.P.No.65 of 1981. h)Pending suit, the first plaintiff has expired on7.4.1992. By virtue of the Will executed by the deceased firstplaintiff in favour of the second plaintiff, the second plaintiff isentitled to the suit properties and except the second plaintiff,there are no other heirs to inherit the estate of the firstplaintiff. Inasmuch as the appellants,therefore, the 4th appellant hasmade an endeavour to take possession of the plaint scheduleproperties, the plaintiffs have filed the suit seeking the relief ofdeclaration that the Institution consisting of Samathi Mutt andtemple and the schedule mentioned properties are not religiousinstitution coming within the ambit of Tamil Nadu Hindu Religious and https://hcservices.ecourts.gov.in/hcservices/ Charitable Endowment Act and for the relief that the Institution is aprivate one as per Section 63(a) of the T.N.HR & CE Act and forpermanent injunction restraining the appellants/defendants , theiragents and their men from interfering with the possession andmanagement of the suit properties by the plaintiffs. 3. The first appellant/first defendant has filed a writttenstatement adopted by the defendants 2 to 4 inter alia taking thedenial pleas that (1) the property temple in the schedule is aprivate mutt and Institution(2) that the first plaintiff managingthe same and maintaining the same in her own right and according tothe wishes of the founder(3) that Batcha Reddiar is the founder ofthe Institution and that he wanted to erect his Samathi in the suitproperties etc., 3a) The case of the appellants is that Sundaravinayagartemple is a public temple and it is in existence even before the year1921 and Batcha Reddiar and his wife/first plaintiff admitted theexistence of Sundaravinayagar Temple and that he acted only as atrustee of the temple and endowed some properties to the temple andprovided for the performance of the "Anna Naivaithiam", and that heempowered the panchayatars to question the trustees on their failure,if any in the performance of Anna Naivaithiam and supervise the same.Further Batcha Reddiar posed himself and acted as the trustee of thetemple. Therefore, the said Batcha Reddiar and the first plaintiffclaiming under him are estopped to contend that the suit institutionis Samathi and not a temple. 3b)Moreover, the further pleas of the appellants are thatBatcha Reddiar never claimed that the suit property was intended forhis Samathi or that it is his private temple, that he He neverintended to purchase any property for the purpose of his Samadhi.Since the Institution is a public temple, he endowed the propertiesfor the upkeep and maintenance of the temple and also for theperformance of the "Pal Kavadi" and "Mahotchavam" in the month ofThai. The "Pal Kavadi" and Mahotchavam can be performed by thegeneral public only and they took part in the festival as a matter ofright and that neither Batcha Reddiar nor the first plaintiffeverclaimed that the Institution is a Samadhi or a Mutt and that itis their private property and also that the documents under whichBatcha Reddiar purchased the properties do not create anirrecoverable Mutt and that the first plaintiff buried her husband inthe south-west corner of the built up area and erected a Samadhiwith inscriptions, as directed by Batcha Reddiar and Batcha Reddiarand the first plaintiff belong to Caste of Hindu Siva Worshipper andtherefore, the installation of the idol of Linga in the temple as perthe Hindu Ahamas and Sastras have been done and that the suitinstitution is a public temple as defined under Section 6(20) of theHR & CE Act and hence it comes under the purview of the said Act. https://hcservices.ecourts.gov.in/hcservices/ Continuing further the absence of the structures like"Dhwajasthambam" "Vahanas" "urchavars" "Bromothsam" etc will notnecessarily lead to the conclusion that the suit institution is aprivate Mutt or temple and the temple need not necessarily have"MadaVeedhis" around it. 3c) Besides the above , the appellants contend that BatchaReddiar never claimed that the office of the trusteeship lies withhis family or heirs and that he claimed himself as the presenttrustee " Tharkala Trustee" which means that the trusteeship maylie with any one in future and that the Batcha Reddiar wantedpanchayatars to supervise the manager as he wanted to prevent thethird parties from encroaching upon the properties is denied and thatthe first appellant and the second appellant have correctly heldthat the suit Institution is a public temple falling under Section6(20) of the T.N.HR & CE Act and not a private mutt or samadhi andthat the Will alleged to have been executed by the first plaintiff isdenied, when the plaintiff has no right over the temple. 4. On the basis of the aforesaid pleadings, the trial Courthas framed in all three issues. On the side of therespondent/plaintiff's witnesses, P.W.1 to P.W.4 were examined andExs A1 to A4 were marked and on the side of theappellants/defendants, D.W.1 was examined and Exs B1 to B10 weremarked and Exs C1 to C3 were marked. 5.The trial Court, on an appreciation of the oral anddocumentary evidence and taking note of the available materialevidence on record, and after analysing the same in depth has cometo a conclusion that the suit property and the temple, Samathi andMutt are Institutions not coming under the control of HR & CE Boardand that they are Institutions which do not come under Section 33(a)of the said Act belonging to the separate individuals and accordinglypassed a decree besides granting the relief of permanent injunction. 6.Heard both the learned counsel appearing for the parties andthis Court has noticed their respective contentions.7.The point that arise for determination is"Whether the respondents/plaintiffs are entitled to the declatory relief of claiming thatSamadhi , Mutt , temple and the suit schedulementioned properties are not religious institutions asper HR & CE Act and that the suit institutions are aprivate one as enjoined under Section 33(a) of HR &CE Act and for the relief of permanent injunction?" https://hcservices.ecourts.gov.in/hcservices/

8. Contentions, Discussions and Finding : Mr.M.R.Murugesan, the learned Special Government Plealder(H.R.&C.E) urges before this Court that the trial Court ought to have heldthat the suit temple is a public religious temple coming within thepurview of the definition under Section 6(20) of the HR & CE Act andfurther the suit temple and its properties are being usued as a placeof public religious worship dedicated to or for the benefit of or useof right by the Hindu community and these aspects have not beenlooked into by the trial Court in a proper perspective and furtherthe trial Court has not appreciated Exs D1 to D10 documents to provethat the dedication and management of the temple and that Ex D6document will show that Batcha Reddiar has been shown as a person incharge management of the temple and in an important fact is that thetemple has been founded by the villagers even prior to the year 1921out of the public funds and moreover by placing reliance of Exs P1 toP4 , the trial Court has come to the conclusion that the temple is aprivate one and that trial Court has failed to see theidols,Navagraha has come into existence for worshiping performingdaily poojas etc without any let or hindrance and alll these factorswilll go to point out that the temple in issue is a public one andthat the public are not worshiping samadhi primiarily but worshipingincidentally and therefore primarily worship is in respect of idolsonly and the samadhi in the present case contains all the indicationof temple and the temple has evolved from the samadhi and in anyevent, the entire temple precinct cannot be called as Samadhi andtherefore prays for allowing the appeal in the interest of justice. 9.The learned Special Government Pleader(HR & CE) appearingfor the appellants submits that the plaintiffs are converting thetemple into samadhi and that the samadhi has been constructed by thefirst plaintiff viz., the wife of Batcha Reddiar and that theVinayagar temple is an ancient one and it has been constructed beforethe year 1920 and the second plaintiff is the sister's son of thefirst plaintiff and in Exs D1 to D10 documents, Batcha Reddiar hasbeen described as temporary manager and that in Ex D3 gift deed dated6.1.1921 in favour of Vinayagar temple executed by the said BatchaReddiar, he has to answer the panchayatars in case of any of theviolation of conditions mentioned therein anf if the events are notperformed then the temporary manager can be questioned by thepanchayatars and therefore it is quite evident that Batcha Reddiarhas given control to the panchayatars and in paragraph 5 of theplaint Batcha Reddiar has described himself as Dharmakartha butwhereas Exs D2 to D10 referring as temporary manager and thatmanaging affairs of the temple is diferent from trusteeship andfurther it is averred in the plaint that Dharmakartha is an Englishparlance refers to the word"manager and Trustee and that he has gotlist annexed to the temple. https://hcservices.ecourts.gov.in/hcservices/

10. Added further the learned counsel for the appellantssubmits that the deceased Batcha Reddiar is not the founder of thetemple and that beneficiaries when they are in large number areascertained one and Batcha Reddiar has no issues and therefore he hasbuilt the temple and his family is only ascertained the beneficiaryand that how the samadhi will be before entering the village and thatno accounts and documents have been produced to establish that theamounts have been spent for the construction of the temple or themonies have been drawn from the Bank and Naivethyam performed only ina temple and not in a samadhi and out of 10 acres of land dedicatedto the temple, the events being performed and they are managingaffairs of the temple of their own and the plaintiffs converted thetemple as samadhi and admittedly there is no hundi and that noway HR& CE Act say what is the private temple and Section 6(20) of the saidAct only speaks of "temple" meaning a place by whatever designationknown, usued as a place of public religious worship and dedicated to,or for the benefit of, or used as of right by, the Hindu Community orof any Section thereof, as a place of public religious worship andtherefore the suit temple is a public one. 11.The pith and substance of the argument advanced by theappellants side is that samadhi,mutt, they are not a public templeand that the Mutt is a place where disciple will be given theteaching and free lodging and boarding for them will be provided andthat the Vinayagar temple is a public temple and in a samadhi cannothave a Kalasa Pooja with a permission of the first plaintiff and thatthe evidence of P.W.4 is to the effect that he is not aware in whichyear temple has been built but the temple is called as"Pillaiyartemple" and that he has deposed thaht after obtaining thepermission , they will worship the deity of the temple and it is thespecific evidence of P.W.2 thaht they will call the suit temple assamadhi temple and it is thought as samadhi. It is the evidence ofP.W.3 that the plaintiffs will allow the people to the temple whom,he likes and specifically in Ex P4, it is mentioned as "familytemple" and that the samadhi cannot have a Kumbhabishekam. 12.The learned counsel appearing for the appellants cites thedecision reported in Pichai alias Chockalingam-v- The Commissionerfor Hindu Religious and Charitable Endowments (AdministrationDepartment)(1971 MLJ 166) wherein it is held as follows:"The definition of"temple" contemplates following conditions,namely "temple" means" place by whatever designation knownused as a place of public religious worship(1) and dedicatedto the Hindu community or any section thereof as a place ofpublic religious worship; or (2) and dedicated for thebenefit of the Hindu Community or any Section thereof as aplace of public religious worship or(3) and used as of rightby the Hindu community or any section thereof as a place of https://hcservices.ecourts.gov.in/hcservices/ public religious worship".He also presses into service, the decision reported in V.MahadevaGurukkal-v- Commissioner for the Board of Hindu ReligiousEndowments, Madras(1956 Madras 522(AIR V 43 C 166 Sept)wherein it islaid down as follows:"A temple which began as a private temple may, incourse of time, become a public temple by expressor implied dedication, the latter being proved byuse of the temple by the Hindu Public as of rightand without taking any permission from anyone.Under S.9(12) no express dedication on a definitedate need be proved, if it is proved beyond alldoubt that the temple has been used as of rightby the Hindu Public as a place of religiousworship without taking anybodoy's permission,leading to an irresistible inference of implieddedication".13. Yet another decision reported in Subbiiah Pillai-v- TheCommissioner ,HR & CE (ADM) Department, Madras(77 L.W.94) relied onthe side of the appellants whereby and whereunder it is observed asfollows:"A temple was proved to have been founded by theplaintiff's family who had settled properties forits use and benefit, there was no evidence onrecord to show that any member of the publiceither offoered moneys or endowed any property tothe temple. The entire properties belonging tothe temple were in the possession of theplaintiff's family. No member of the publiceither interfered with their managements andpossession of the properties or called upon themto render any account in regard to the income ofthe properties. There was no cogent or clearevidence to prove that the members of the publicas a matter of right were allowed to worship inthe temple. The temple was situate not onlyadjacent to the plaintiffs' house, but theplaintiffs have acess and entrance to the templedirectly from their house, and the gate will bealways locked except when poojas arer performedby the archakar. Held: It is not a public temple.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 siutated https://hcservices.ecourts.gov.in/hcservices/ on a natham, it cannot be called as a publictemple".The learned counsel appearing for the appellants citing the Judgmentof this Court in A.S.No.825 of 1995 dated 26.6.2008 wherein it isheld that the plaintiff is a public trust and the suit temple is apublic one. He also relies on the decision of this Court inD.Shanmugha Desikar-v- The Commissionenr Hindu Religious andCharitable Endowment (2008(1)TNLJ 26(civil) wherein it is held that'when there was no Gopuram or palipeedam and condition stated underSection 9(12) of HR &CE Act is not a public or private temple andthat the matter has been remanded back to the trial Court. He alsorelies on the Judgment of this Court passed in A.S.No.285 of 1997dated 11.2.2008 wherein this Court in paragraph 24 of its Judgmenthas inter alia held as follows:" The daily poojas, deeparathana and the festivalof Kumbabishekam are related to a public templeand not for any samadhi. As per the settlementdeed, the settlor has clearly stated thatKumbabishekam, daily poojas and deparathana shallbe performed to the deity and therefore, the pleaof the respondent is totally a self-contradictoryversion to enjoy the property as his own andhence the respondent cannot claim the institutionas a private samadhi". 14.Per contra, the learned counsel appearing for therespondent submits that an Advocate Commissioner has been appointedbefore the trial Court and he has given a detailed report which formspart of the records and that in the suit temple, there is nokodimaram, Hundi and no collection of money made among the members ofthe public and in fact as per amendment made to HR & CE Act in theyear 1999, earlier samadhi has been included as a temple and laterthe same has been deleted as per Tamil Nadu Act 4 of 2008 and thatthe deceased Batcha Reddiar being an affluent person put up templein a private patta property belonging to him and that he haspurchased the property and constructed Vinayagar Temple and it is amisnomer to say samadhi as a temple. It is the specific defence ofD.W1 that earlier Commissioner's final report has not been filed andit is the categorical evidence that the case records are notavailable and merely because the public are allowed an entry in aHindu Private temple , the same will not go to prove that a temple isa public one. 15.The learned counsel appearing for the respondent bringsit to the notice of this Court, the decision of this Court reportedin The Commissioner for the Hindu Religious and CharitableEndowments, Madras-34 -v- Swamikeela Arasalwar Dharmam in Veera https://hcservices.ecourts.gov.in/hcservices/ kerala Varampuram Gramam(Street), Shencottah Village, ShencottahTaluk, Tirunelveli District, through its Trustees( 1983(2) MLJ 274)wherein its among other things held that the mere fact that thepublic is being allowed to participate in the festivals connectedwith the temple , or allowed to worship in the temple could notpersuade the Court to readily infer that there is dedication to thepublic and that the crucial test is that the Hindu public or anySection there must be entitled to use the place as a place of publicreligious worship'. Further he relies on the decision reported inChennammal-v-The Commissioner for Hindu Religious and CharitableEndowments, Madras(1973 MLJ 442) wherein it is held that in theabsence of an express dedication for the benefit of the public , userby the public as of right must be established and such user as ofright is far different from the trustees being willing to welcome thepublic to come and worship in the temple. The suit temple was heldto be a private temple not coming within the scope of Madras Act22/1959. In the aforesaid decision, it is also held at paragraph 9 tothe effect that' the law is well settled that, when the origin of thetemple is known as a private temple, then the clearest possibleevidence is necessary for converting that temple into a publictemple and we are clearly of the opinion that, in this particularcase, no such evidence is available'. He also cites the decision ofthe Honourable Supreme Court Saraswathi Ammal-v- Rajagopal Ammal(AIR 1953S.C.491 (Vol.40,C.N.121)wherein it is held that 'inconsidering the validity of a dedication of property for religiouspurpose what is a religious purpose under the Hindu Law must bedeterminend according to Hindu notions. Under the Hindu lawreligious or charitable purposes are not confined to purposeswhich are productive of actual or assumed public benefit. Theacquisition of religious merit is also an important criterion. Inthe same decision, the Honourable Supreme Court has observed that'Where, nothwithstanding that the major portion of the income may haveto be spent for Gurupooja and Annadhanam in connection with theannual sradh, it is clear from a settlement deed that the dominantpurpose of the dedication of property was the samadhi Kainkariyam,that is to say the worship of and at the samadhi(tomb) the settlementdeed is invalid. The reason is that perpetual dedication of propertyfor worship at a tomb is not valid amongst'. Further it is observedin paragraphs 7 and 8 as follows:"The learned Judges of the Madras High Courtappear to have made the Full Bench referenceabove noticed on an argument before them thaterection of tombs for deceased persons andendowment of properties for the upkeep thereofand for the performance of worship thereat werecommon amongst, Hindus of certain communities andthat it is believed by them to redound to theirspiritual benefit and that the validity of such https://hcservices.ecourts.gov.in/hcservices/ endowments have been recognised by the Courts.But the case that they referred to is-' MuthukanaAna Ramanadham Chettiar.v. Veda Levvaimarakayar'.34 mad.12(H) which relates to Muslimsand it may well be that the position is, asstated therein amongst Muslims. We have beenreferred to a statement at page 223 ofP.R.Ganapathi Iyer's Hindu and MahomedanEndowments, Ed.2. wherein it is stated-"Gifts for the maintenance of tombs or samadhiesof private persons have been regarded as validundner the Hindu law"We have been unable to find on what authoritythis statement was based. There is only asolitary passage in the case reported asthe-"Most reverend Joseph Colgan.v.Administrator-General of Madras', 15.Mad.424 atP.;446(1) wherein it appears as follows:" Dedication of property in perpetuity for theperformance of religious ceremoniesm maintenanceof tombs and other purposes not allowed byEnglish law tobe charitable, have always beenheld lawful amongst Hindus and Muhammadans'. Insofar as this statement relates to tombs ofHindus, we are unable to find any support fromour knowledge and experience. There have been nodoubt instances of Hindu Saints having beendeified' and worshipped but very few, if at allhave been entombed and we are, not aware of anypractice of dedication of property for such tombsamongst Hindus. Such cases, if they arise, mayconceively stand on a different footing from thecase of an ordinary private individual who isentombed and worshipped thereat. The casereported as-" Commissioners, Hindu ReligiousEndowments, Madras.v. Narasimham'. AIR 1939Mad.134(J) has also been referred to . It is asomewhat curious case furnishing an instancewhere images of as many as 66 heroes who weresaid to have been killed in a war between twoneighbouring kingdoms in the 13th century wereinstalled in a regular temple and systematicallyworshipped by the public for several centuriesand inam grants therefor made during the Moghulperiod. With reference to the facts of thatcase, the learned Judges were inclined to holdthat the worship was religious. This, however,is a case of a grant from a sovereign authorityand in any case is not an endowment for worship https://hcservices.ecourts.gov.in/hcservices/ of a tomb.In the three Madras cases in which it was heldthat the perpetual dedication of property by aHindu for performance of worship at a tomb wasnot valid, there was no suggestion that there wasany widely accepted practice of raising tombs andworshipping thereat and making endowmentstherefor in the belief as to the religious meritacquired thereby. In the present case also, noquestion has been raised that in the community towhich the parties belong there was any such well-recognised practice or belief. The defendants inthe written statement make no assertion about it.But on the other hand, the plaintiff in para.12of his plaint asserts that the-" Institution of samadhi and ceremonies connectedwith it a re not usual in the community to whichthe parties belong."Undeed it may be assumed that such a practice isnot likey to grow up amongst Hindus wherecremation and not burial of the dead is thenormal practice, except probably as regardssanyasis andin certain dissident communities. Wesee no reason to think that the Madras decisionsare erroneous in holding that perpetualdedication of property for worship at a tomb isnot valid amongst Hindus."16.He also relies on the decision reported in Nagu Reddiar -v-Banu Reddiar( AIR 1978SC 1174(a) wherein at paragraphs 14 and 15 itis held as follows:"The rule that a provision for the purpose ofPuja over the tomb of the remains of a person isinvalid is subject to certain exceptions. Aspointed out by this Court in Saraswathi Ammal'scase(supra) there have been instances of HinduSaints having been defied and worshipped butvery few if at all have been entombed. Such casesstand on a different footing from the case of anordinary private individual who is entombed andworshipped thereat. After referring to thedecision in Saraswathi Ammal's case, a Bench ofthe Madras High Court in Sri Ramanasramam by itsSecretary G.Sambasiva Rao and Ors.v. TheCommissioner for Hindu Religious and CharitableEndowments, Madras,MANU /TN/0213/1961 observedthat as samadhi over one who comes to be regarded https://hcservices.ecourts.gov.in/hcservices/ as of the illuminati or even the tombs of heroesmay evolve in course of time as a shrine of HinduPublic religious worship, as was held in theBoard of Commissioners for Hindu ReligiousEndowments, Madras.v. Pidugu Narasimham and Ors.MANU /TN/0029/1938 Ratnavelu Mudaliar.v.Commissioner, for H.R & C.E. MANU/TN/0243/1954and Rama Swami v. The Board of Commissioner,Madras. MANU/TN/0123/1951 This Court referring tothe decision of Board of Commissioners for HinduReligious Endowments, Madras.v. Pidugu Narasimhamand Ors(Supra) observed that the Judges of theHigh Court were inclined to hold that the worshipwas religious. But this was a case of a grantfrom a Sovereign authority and was not anendowment for worship of a tomb. In MANU/TN /0243/1954 a Bench of the Madras High Court heldthat the samadhi or tomb of one Apparswami is aplace of religious worship taking into accountthat the institution was for over a centuryregarded as a place of religiou worship.Viswanatha Sastri J. in T.R.K.Ramaswami Servaland Anr. V.The Board of Commissioners for theH.R.E. Madras, MANU/TN/0123/1951 through itsPresident, expressed his view thaht it wassufficient if the worshippers consideredthemselves likely to be the receipients of thebounty or blessings of a Divine Presence, whichthey believed to exist at the place. Samadhis ofsaints are recognised as religious institutionsin the South. It is well known that the Samathiof saint'Pattinathar' is considered as a place ofworship in Tiruvottiyur near Madras. Accordingto tradition great saints have attainend YogaSamadhi in the well known pilgrim centers; SaintTirumoolar attained samadhi in Chidambaram, SaintKonganavar at Tirupathi, Saint Valmiki atSrirangam and Bhgamuni at Palani. The raising of a tomb over the remains of anancestor, an ordinary person is not recognised asreligious in nature. The burden is on the personsetting up a case of religious practice in thecommunity to prove it. This prohibition may notapply when an ancestor is cremated and a memorialraised for performing Sharadha Ceremonies andconducting periodical worship for this practicemay not offend the Hindu Sentiment which does notordinarily recognise entombing the remains of thedead. A place of worship will not cease to be https://hcservices.ecourts.gov.in/hcservices/ religious because of its being in othe memory ofa person". 17. He also relies on the decision of the HonourableSupreme Court reported in Malayammal -v- A.Malayalam Pillai(JT 1990(4)SC 321) wherein at paragraph 12 it is among other things observedas follows:"The raising of a tomb over the remains of anancestor, an ordinary person is not recognised asreligious in nature. The burden is on the personsetting up a case of religious practice in thecommunity to prove it. This prohibition may notapply when an ancestor is cremated and a memorialraised for performing Shradha ceremonies andconducting periodical worship, for, this practicemay not offend the Hindu Sentiment which does notordinarily recognise entombing the remains of thedead". 18.As far as the present case is concerned, report of anAdvocate Commissioner Exs C1 to C3 assumes significance in theconsidered opinion of this Court. In the Advocate Commissioner'sreport, it is mentioned that the suit property Sundaravinayagartemple is situated on the eastern side of the Sirunavur Village andon the south of the temple there is a road with adjoining Nanja landand that Sundaravinayagar Temple has compound wall on four sides andthat on 15.9.1986 Mahakumbabishekam has been performed and the samehas been inscribed in the culvert and Batcha Reddiar has expired on28.12.1948 and that his body has been entered in the said place andthat the first plaintiff has expired on 7.4.1992 as per thementioning made in the culvert and in the Sundaravinayagar temple atthe agni corner, there is a Madapalli and that there is nopallipeedam in the temple , there is no Hundi , there is noKodikambam and there are no Durvaraghabhavars and there are novaganas and the temple is not in possessing the aforesaid items andbefore the Vinayagar temple, there is one Mandabam etc and that thesamadhi and temple are placed together. 19. To the report of the Commissioner, the thirdappellant/third defendant has filed an objection stating that thereis no samadhi and that if it is so, the same should have been mademention of by means of length and breadth and that the same has notbeen properly mentioned by the Commissioner in his report and thatthe Commissioner's report is not helpful to the Court to arrive at adecision. 20. It is pertinent to point out tht P.W.1 in his evidence hasdeposed that he is the second plaintiff in the case and that Batcha https://hcservices.ecourts.gov.in/hcservices/ Reddiar in the year 1921 has purchased the properties from KanoovuAmmal and those properties are situated outside the Village on thenorthern side and for constructing Vinayagar Temple and to createsamadhi on its right side, the aforesaid properties mentioned in1921 documents have been purchased by the said Batcha Reddiar andafter purchasing 27 cents, he has built Sundaravinayagar temple andhe has been worshipping the same and further he has built the saidtemple from his own funds and in front of the temple , there isBallipeedam, Vaganas, Kodimaram and Hundi etc., and he himselfexclusively worship the temple and that he expired in the year 1948and as per his wish, his body has been buried on the right side ofthe Sundaravinayagar temple and a mandapam has been raised on theplace where Batcha Reddiar has been buried and Lingam and Rishabamhave been erected for which both in the morning and in the eveningdaily in the temple and samadhi light will be lit and that thepublic are not taking part in the performance of poojas. It isfurther evidence of P.W.1 that after the death of Batcha Reddiar inthe year 1948, Sundaravinayagar Temple has been erected and Linga hasalso been established and that compound wall , vinayagar temple andMandapam has been established and that no temple procession has beentaken out and no festivals are conducted with the help of public andthat the idols are not decorated and no festival has been conductedand that the place where the temple is situated belongs to BatchaReddiar in his individual capacity as per sale deed. 21. In short, the evidence of P.W.1 is to the effect that thesuit temple belongs to their family as a private samadhi temple. Theevidence of P.W.1 also points out to the effect that on 15.9.1986 forthe samadhi temple, he performed Kumbabishekam and Batcha Reddiarduring his life time has not appointed anyone as an Administrator forthe suit temple and except the first plaintiff, others have no rightand hence no one is allowed inside the temple and further thatMeenambal has administered the temple as per wish of her husband andthat the Batcha Reddiar has described himself as temporary Managerand that he has executed the document in favour of the temple inthat capacity only and after the death of Batcha Reddiar, when hiswife/first plaintiff managed the temple , no one from the public hasinterfered with the administration of the suit temple and at presentalso, no one from the public has interfered with the affairs of thetemple and that the 4th defendant has directly inspected the suittemple and has given a report which has not been taken into accountby the defendants and that the samadhi's breadth is 6 feet andlength is 6 feet. 22. P.W.2 during course of his evidence has stated that inhis village, there are people from Reddiars, Yadavas, Adi DravidarCommunity and they cannot enter the suit temple and that the suitplace is called as "samadhi temple" and before the erection ofSamadhi, in that place Vinayagar, Dhandapani,Navagraha idols have https://hcservices.ecourts.gov.in/hcservices/ been erected by Batcha Reddiar out of his own funds and that no onehas been contributed any amount for the erection of said idols andin the said temple, there is no hundial and only when plaintiffsinvite during festival times one cannot enter the temple and that thetemple's lock and key will be with the plaintiffs and all of themare under the impression that the suit place is a samadhi and thatthe samadhi is situated at the very entry of the village. 23. P.W.3 in his evidence has deposed that to his knowledgepublic are not entering into the suit temple and no one can enterand worship inside the temple out of his or her volition and that thepublic cannot enter and worship and in the administration of thetemple, the public have not taken part and it is not correct to statethat there is no samadhi in the suit place and during the crossexamination, he has specifically stated that after getting down fromthe bus, the temple is situated first in his village and that therenovation works have been carried out by the plaintiffs' relativesonly and that the plaintiffs' family members will take part in theUrchavam and the public will not attend it voluntarily and during theUrchavam period, when they enter into the temple, they are notprohibited and the plaintiff's will allow the members of the publicliked by them. At this stage, this Court opines that the Hindusentiment is that no one is precluded from worshipping in a temple,though the temple is primarily meant for the worship of the membebrsof the family of the founder. In private temple worship byoutsiders/public is because of the leave and licence granted by theconcerned Donor/founder's family and this cannot be construed as anydedication to the public. 24. P.W.4 in his evidence has deposed that Batcha Reddiarhas constructed Vinayagar temple and the samadhi and they cannot goinside the temple without permission and that Batcha Reddiar'srelatives can enter into the temple and that no procession is takenfrom the temple and that he is not aware of the year of theconstruction of the temple and that the temple is in existence fromgeneration to generation and that temple accounts are being lookedafter by the second plaintiff. Moreover, P.W.4 also says that thereis a priest for the temple who does daily pooja and Thaipoosamurchavam will be performed in small scale with the relatives ofBatcha Reddiar attending the same. 25. At this stage, it is not out of place to makingsignificant mention that D.W.1 in his evidence has stated that heis serving as a suit Inspector of the Villupuram AssistantCommissioner's Office, H.R &C.E Department and that he has inspectedthe suit temple and that the sundaravinayagar temple is situated atthe outskirts of the village and one can enter into the village,after passing through the temple. Neivethyams, poojas are performedby the priest and that the temple has a compound wall and that the https://hcservices.ecourts.gov.in/hcservices/ priest is being paid by the second plaintiff and in the temple, thereis Karbagraham, Mandabam and Mahamandabam etc and that the no memberof the public is prevented from entering into the temple and it isnot correct to say that because of samadhi it can be described asMadam and temple is in existence before the year 1921 and that for asamadhi, there is no urchavam and in the inside samadhi, no idols ofgods will be kept and according to his enquiry, the members of thepublic are allowed inside the temple and Exs B1 to B10 are alldocuments belonging to the Sundaravinayagar temple and in the saiddocuments, there is no mention of temporary manager and in the saiddocumentns no hereditary trustees are mentioned and that he has readthe contends of the report of the previous Inspector Mr.R.Srinivasanand that the said report has not been filed into the Court and thatthe Kumbabishekam has been performed in the year 1986 and he isaware of the Mandapam that has been built in and it is true to statethat the plaintiff's side has described inside the Mandapam asSamadhi etc and that on 23.7.1993, he has not served as an Inspectorand he is not aware in a temple a samadhi can be erected. Merelybecause in Ex P4 in the Kumbabishekam invitation , it is mentioned as'Our family temple' and further for performance of Kumbabishekamfestival, people and friends have been asked to come and attend withdear and near once ,it cannot be construed by any stretch ofimagination that the suit temple is a public one. The true test ifwhether the temple is a private or public one is for the Courtascertain whether the members of the public do have a free right ofingress and egress in regard to the worship of the idol/ deity of aparticular temple. 26. To know whether it is a public or private endowment, thefour tests are (1) Whether the user of temple by the members of thepublic is or right(2) Whether the management and control vest eitherin a large body of individuals or whether the members of public andfoundner do not retain any control over the management (3) Whetherthe dedication of the properties is made by the founder(4) Whetherthe evidence established that the founder of the temple has notstipulated for contributions or offerings to be made by the public. 27. In the case of private temple worship by persons otherthan founder's family will be by sufferance of founder's family. Theprivate temple in short is meant for worship of founder/donor'sfamily.28. It is to be noted that a temple must conform to AgamaSastras or by immemorial public usuage ought to have been regarded asa place of public religious worship, not withstanding the non-confirmance with Agama Sastras. However, a samadhi by itself and nottreated as a fitting object of public religious worship for a longtime does not evolve into a temple. https://hcservices.ecourts.gov.in/hcservices/

29. The initial presumption that a temple is a public one canbe rebutted by an individual who claims that it is a private templeby proving the said fact affirmatively and positively by clinchingproof, before a Court of Law.30. As far as the present case is concerned, it is clear fromEx B3 Gift deed that Batcha Reddiar has been described as atemporary Manager for the Vinayagar temple and that the gift deed hasbeen executed by the said Batcha Reddiar himself. In the saiddocuments, it is also made mention of that out of the income , afterpaying the tax, the remaining income can be made use forAnnaneivethyam etc. Therefore, the suit temple has come intoexistence in and around 1921. Except Batcha Reddiar and after hisdemise, the deceased first plaintiff , no one from the public haslooked into the administration of the temple nor they have interferedwith the internal affairs management of the temple.31. It is the contention of the learned Special GovernmentPleader(HR & CE) that generally in south India , there is apresumption that all temples are public one , of course presumptionis a rebuttal one. A perusal of Ex A2 photograph along withnegative shows that a lingam has been erected in the place whereBatcha Reddiar's samadhi has come into existence and there arecertain inscriptions found in Tamil vernacular which referpinpointedly to the deceased Batcha Reddiar. After the demise ofthe first plaintiff, the second plaintiff is claiming his right asper Ex A1 Will dated 24.1.1988. In the said Will has been executedby the first plaintiff in favour of the second plaintiff who is noneother than the sister's son of her/first plaintiff. In Ex A1, it iscategorically mentioned that Batcha Reddiar's samadhi temple andSundaravinayagar temple and Dhandayudapani idols and properties areabsoultely to be enjoyed by him and further that the samadhi templehas been built by her and in the said temple no one can claim anyright and the said property belongs to her husband and herself.32. Merely because poojas are performed or light is lit inSamathi and that some idols have been installed inside the precinctsof samathi it has not lost its eseential feature of samathi or muttand hence it is not a public temple in the considered opinion of thisCourt. 33. On a careful consideration of the respective contentionsadvanced on both sides and on a careful consideration of the evidenceof P.Ws 1 to 4 and the evidence of D.W.1 and after perusing the othermaterial documentary evidence on record, this Court is of the viewthat the suit property and the temple mentioned in the suit propertyabsolutely belong to the plaintiffs and that in the said suitproperty and the temples are in the sundaravinayagar temple exceptthe respondent/plaintiff no member of the public has any right or https://hcservices.ecourts.gov.in/hcservices/ interest over the same and merely because during the Kumbabishekam orsome festival period or even in Ex A4 document in the kumbabishekaminvitation wherein s it is mentionend as ' our family temple' andnear and dear one of the relatives have been asked to come and attendthe said function, the same cannot in anyway establish the suittemple as a public one and the crucial question is that whether themembers of the public have got a right of worship in the temple as amatter of right and the ample oral and documentary evidence availableon the side of the plaintiffs P.Ws1 to 4 clinchingly, convincinglyand cogently point out that the suit temple and the idols belong tothe plaintiffs, absolutely and they are entitled to the relief ofdeclaration that the samathi, Mutt, temple and the schedule mentionedproperties are not religious institutions coming within the purviewof T.NH.R.& C.E. Act and the Institution is a private one andpermanent injunction as prayed for and therefore, the appeal fails.34. In fine, on an over all assessment of the facts andcircumstances of the case in a cumulative manner and on appreciationof oral and documentary material evidence on record, this Courtdismisses this appeal as it is devoid of merits to prevent aberrationof justice. Consequently, the Judgment and decree passed by the trialCourt are affirmed by this Court for the reasons assigned by thisCourt in this appeal. Considering the facts and circumstances of thecase, there shall be no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsgTo 1.The Subordinate Judge,Tindivanam.2.The Section Officer,VR Section, High Court,Madras.+1cc to Mr.V.Raghavachari, Advocate Sr 25869+3ccs to Govt. Pleader Sr 26433,26113,25901RSI(CO)km/9.7.A.S.NO.512 OF 2002