K. Devarajan v. The Commissioner HR & CE Admn. Dept., Chennai – 342

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:21.06.2010CORAMTHE HONOURABLE MR. JUSTICE P.R.SHIVAKUMARAppeal Suit No.1009 of 20011.K. Devarajan2.K.Adhikesavan...Appellants/PlaintiffsVs.1.The Commissioner HR & CE Admn. Dept., Chennai – 342.The Deputy Commissioner HR & CE, Chennai – 343.The Asst. Commissioner HR & CE Mitta Ananda Rao St., Vellore town... Respondents/DefendantsPrayer: Appeal filed under Section 70(2) of HR & CE Act against thejudgment and decree dated 07.9.2001 made in O.S.No.175 of 1989 on thefile of Subordinate Judge, Vellore. For Appellants: M/s.T.R.Rajaraman For Respondents: Mr.M.R.MurugesanSpl. Govt. Pleader (HR & CE)JUDGMENTThis appeal has been filed under Section 70(2) of the Tamil NaduHindu Religious and Charitable Endowment Act, 1959. The plaintiffsin O.S.No.175 of 1989 on the file of the learned Subordinate Judge,Vellore are the appellants herein. The Commissioner, HinduReligious and Charitable Endowments Admn. Department, Chennai, theDeputy Commissioner, Hindu Religious and Charitable Endowments,Chennai and the Assistant Commissioner, Hindu Religious andCharitable Endowment, Vellore Town, who figured as the defendants inthe original suit are the respondents herein. 2.The appellants herein are the sons of Late B.D.SundararasaPattachariar. The said Sundararasa Pattachariar moved anapplication before the Deputy Commissioner, Hindu Religious and https://hcservices.ecourts.gov.in/hcservices/ Charitable Endowment, Chennai under Section 63(b) of the Tamil NaduHindu Religious and Charitable Endowments Act, 1959 for recognizinghim to be the founder-cum-hereditary trustee of the suit temple byname “Sri Veera Anjaneyar Temple” situated within the campus ofVellore Municipality, Vellore. It was claimed by him in the saidapplication that he alone founded the temple and was functioning asits founder and hereditary trustee-cum-Archaka. The said originalapplication filed before the Deputy Commissioner, Hindu Religiousand Charitable Endowments as O.A.No.33 of 1979 was dismissed afterenquiry by an order dated 09.3.1981 by the Deputy Commissioner(Judicial). As against the order of dismissal of the said originalapplication, the said Sundararasa Pattachariar preferred an appealunder Section 69 of the Hindu Religious and Charitable EndowmentsAct, on the file of the Commissioner, Hindu Religious and CharitableEndowments, Admn. Department, Chennai as A.P.No.81 of 1982. Duringthe pendency of the appeal, Sundararasa Pattachariar died and hissons B.S.Sampathkumaran, B.S.Narayanan and the appellants hereinviz., K.Devarajan and K.Athikesavan were impleaded as appellants 2 to5 in the said appeal before the Commissioner, Hindu Religious andCharitable Endowments, Admn. Department, Chennai as legal heirs ofdeceased Sundararasa Pattachariar. After hearing, the said appealwas dismissed by the Commissioner, Hindu Religious and CharitableEndowments, Admn. Department, Chennai confirming the order of theDeputy Commissioner (Judicial), Hindu Religious and CharitableEndowments Department, Chennai dated 09.3.1981. The said order ofthe Commissioner was passed on 13.9.1988.3.Aggrieved by the same the appellants herein, who are two outof the 4 persons who persuaded the appeal before the Commissioner,Hindu Religious and Charitable Endowments Admn. Department, Chennai,filed the suit O.S.No.175 of 1989 on the file of the Court ofSubordinate Judge, Vellore under Section 70 (1) of the Tamil NaduHindu Religious and Charitable Endowments Act, 1959. Besides theprayer for setting aside the order of the Commissioner, HinduReligious and Charitable Endowment Department dated 13.9.1988 made inA.P.No.81 of 1982., the appellants as plaintiffs had also prayed forthe following reliefs:1) A declaration that they were the hereditarytrustees of the suit temple entitled to be in managementthereof or in the alternative a declaration that they werethe Archakas of the suit temple entitled to perform dailypoojas and to be in the management of the affairs of thesuit temple2) A permanent injunction restraining therespondents / defendants in any manner interfering with theappellant's supposed right of management of the suitproperty or preventing them from performing the day-to-daypoojas to the deity of the suit temple and from taking any https://hcservices.ecourts.gov.in/hcservices/ proceedings for disposing the plaintiff until the rightsof the parties could be finally determined. 4.It was the contention of the plaintiffs made in their plaintthat the suit temple viz., Sri Veera Anjaneyar Temple was founded bytheir father Sundararasa Pattachariar, who alone founded the templeby installing the deity and putting up a small thatched shed over itand later on constructing a pucca building and conductingKumbabishekam. It was also their contention that right from thebeginning Sundararasa Pattachariar was the sole Archaka doing Poojasin the suit temple and he was also looking after the management ofthe temple. The appellants/plaintiffs had thus made an attempt toshow that deceased Sundararasa Pattachariar was functioning as theFounder Trustee-cum-Archaka of the suit temple. Based on the abovesaid pleading, the appellants/plaintiffs had prayed for the reliefspointed out supra. 5.The suit was resisted by the respondents/defendants denyingthe plaint allegations and on the other hand contending that the suittemple was a public temple constructed by the employes of VelloreMunicipality; that deceased Sundararasa Pattachariar was doingPoojas in the suit temple only on the authorisation of the employeesof Vellore Municipality and as an employee of the temple maintainedby the employees of Vellore Municipality and that at no point oftime, the deceased Sundararasa Pattachariar was in the management ofthe temple.6.Based on the respective pleadings made on either side, thelearned Subordinate Judge, Vellore framed seven issues which are asfollows:1)Whether Sundararasa Pattachariar was the founder /hereditary trustee of the suit temple?2)Whether the plaintiffs are entitled to be the hereditarytrustees?3)Is the order of the Commissioner, HR & CE to be set aside?4)Whether the plaintiffs are entitled to the relief ofpermanent injunction?5)Whether the suit is not maintainable for non-issuance ofnotice Under Section 80 C.P.C?6)Whether the plaintiffs are entitled to get the relief ofdeclaration?7)To what relief the plaintiffs are entitled?"7.In the trial that followed settlement of issues, 4 witnesseswere examined as Pws 1 to 4 and seven documents were marked as Exs.A1to A7 on the side of the appellants herein/plaintiffs, whereas onewitness was examined as DW1 and a single document was marked as Ex.B1on the side of the respondents herein/defendants. https://hcservices.ecourts.gov.in/hcservices/

8.The learned trial Judge, who considered the respectivepleadings made by the parties and the evidence adduced on either sidein the light of the arguments advanced by the counsel appearing onboth sides, came to the conclusion that the plaintiffs failed tosubstantiate their contention that the suit temple was founded bySundararasa Pattachariar or that he was the founder or hereditarytrustee of the temple. The learned trial Judge also came to theconclusion that the stand taken by the respondents/defendants thatSundararasa Pattachariar was only an employee of the temple and thatthe management of suit temple, which initially rested with theemployees of Vellore Municipality, was subsequently taken over by theHindu Religious and Charitable Endowments Department. In line withthe above said findings, the Court below non-suited the appellantsherein/plaintiffs for the reliefs sought for in the plaint and thusdismissed the suit with cost by its judgment and decree dated07.9.2001.9.Aggrieved by and questioning the correctness of the decreepassed by the trial Court in the said suit viz., O.S.No.175 of 1989on the file of the Sub Court, Vellore, the appellants herein whofigured as the plaintiffs in the said suit, have brought forth thisappeal under Section 70(2) of the Tamil Nadu Hindu Religious andCharitable Endowments Act, 1959 on various grounds set out in thememorandum of appeal.10.The points that arise for consideration in this appeal are asfollows:1)Whether the appellants/plaintiffs are entitled to adeclaration that they are hereditary trustees of the suittemple?2)Whether the appellants/plaintiffs are entitled to adeclaration that they are hereditary Archakas of the suittemple?3)Whether the order of the Commissioner, Commissioner, HinduReligious and Charitable Endowment Admn. Department dated13.09.1988 made in A.P.No.81 of 1982 should be set aside?4)Whether the appellants/plaintiffs are entitled the reliefof injunction?11.The arguments advanced by Mr.T.R.Rajaraman, learned counselfor the appellant and by Mr.M.R.Murugesan, learned Special Govt.Pleader for the respondents/defendants were heard. The entirematerials available on record were also perused.Point No.112.The plaintiffs in the original suit are the appellantsherein. The original suit was filed as a statutory suit underSection 70(1) of the Tamil Nadu Hindu Religious and Charitable https://hcservices.ecourts.gov.in/hcservices/ Endowments Act, 1959 challenging the order of the Commissioner,Hindu Religious and Charitable Endowments Admn. Department, Chennai(the first respondent herein) dated 13.9.1988 made in A.P.No.81/82confirming the order of the Deputy Commissioner (Judicial), HinduReligious and Charitable Endowment Department, Chennai (the 2ndrespondent herein) dated 09.3.1981 made in O.A.No.33 of 1979, apetition filed under Section 63(b) of the Tamil Nadu Hindu Religiousand Charitable Endowments Act, 1959. The original application viz.,O.A.No.33 of 1979 was filed by Sundararasa Pattachariar while he wasalive, claiming that he was the founder trustee-cum-Archaka of thesuit temple and hence he was entitled to a declaration under Section63(b) of the Act. It is pertinent to note that the plaintiffsthemselves and even Sundararasa Pattachariar was not having anyclear idea as to the status of the position of SundararasaPattachariar in the suit temple. As per the plaint allegations, itwas claimed before the Deputy Commissioner, Hindu Religious andCharitable Endowment in O.A.No.33 of 1979 that SundararasaPattachariar should be declared to be the founder/hereditary trusteeof the suit temple or as the hereditary Archaka of the suit templeentitled to be in management of the affairs of the temple. Thepleading itself makes it clear that the plaintiffs are in a dilemmaas to whether their father Sundararasa Pattachariar was a trustee ofthe suit temple or was an Archaka simpliciter of the suit temple. Aperson who claims to be a hereditary trustee of a Hindu religiousinstitution as defined under Section 6(18) of the Act is bound toprove his contention. There is no difference of opinion regardingthe fact that the suit temple viz., Sri Veera Anjaneyar Temple,situated within the campus of Vellore Municipality, is a publicreligious institution as defined in Section 6(18) of the Tamil NaduHindu Religious and Charitable Endowments Act, 1959. The termhereditary trustee is defined in Section 6(11). The subsection isreproduced here under:-"11. "hereditary trustee" means the trustee of areligious institution, the succession to whose officedevolves by hereditary right or is regulated by usage or isspecifically provided for by the founder, so long as suchscheme of succssion is in force".A reading of the said provision shall make it clear that the founderof a temple is placed on par with a hereditary trustee and even on ahigh pedestal in so far as he can specifically provide for thedevolution of the office of trusteeship of the temple founded by him.In this case, the claim of the appellants/plaintiffs is that the suittemple was founded by Sundararasa Pattachariar, the father of theappellants/plaintiffs and hence, he was the founder trustee. Therewas also an attempt made on the part of the appellants/plaintiffs toshow that the succession to the office of the trusteeship wasspecifically provided for by Sundararasa Pattachariar in hisregistered Will dated 20.3.1979, a certified copy of which has been https://hcservices.ecourts.gov.in/hcservices/ marked as Ex.A7. No credence can be attached to the said Will asthe same was made by him after the dispute had arisen. 13.Of course, it is true that in the Said Will, SundararasaPattachariar incorporated a recital to the effect that he was thefounder of the temple having founded the same in 1963 and was lookingafter the management and services like doing poojas right from itsinception in 1963. He had chosen to prescribe the line of successionregarding the suit temple by nominating the 2nd appellant/2nddefendant alone as his successor. The other sons of SundararasaPattachariar were excluded. However, the suit and the appealhappened to be filed not only by the 2nd appellant/2nd defendantAdhikesavan but also by the first appellant/first defendantDevarajan claiming that both of them are the hereditary trustees-cum-archakas of the suit temple. This is an inbuilt contradictionfound in the case of the appellants/plaintiffs themselves. 14.The evidence adduced on the side of the appellants/plaintiffsare not capable of substantiating their contention that the suittemple was founded and maintained by Sundararasa Pattachariar. Onthe other hand, there are materials in the evidence adduced on thesaid of the appellants/plaintiffs themselves that SundararasaPattachariar was doing poojas in the suit temple with the permissionand authorisation of the employees employed in the office of VelloreMunicipality. Exs.A1 to A4 are the orders of defendants which areimpugned in the suit and the connected notices. Ex.A5 is an articlepublished in 1998 Dinamalar Deepavali Malar at page 16 of the saidissue. The deity of the suit temple is described in the said articleas Municipality Anjaneyar. The history of the temple as found in thesaid article is to the effect that the Sage Vyasar installed 365idols of Anjaneyar at various forts and one such idol had beeninstalled at Vellore fort and was worshiped by him; that during theinvasion of India by foreigners all the idols found in the fort hadbeen removed and installed at various places; that the present deityof the suit temple had been left in the agazhi (trench around thefort) of Vellore fort; that after several years the same wasretrieved from the said place by one Sanjeevi and was installed atSalavanpettai, Kollakara Street; that the same was then thrown undera tree (Arasa tree) as there was a dispute among the inhabitants ofSalavanpettai; that the sanitary workers of Vellore Municipality tookthe said idol to the Municipal office and kept there; that in 1935Swaminatha Pillai and Ranganatha Mudaliar, both employees of theMunicipality, installed the same in a shed within the campus of theMunicipality Office and were offering worship; that one DuraisamiMudhaliar was also helping them in their efforts; that thereafter thefather of the plaintiffs Sundararasa Pattachariar (mentioned asSundara Rahava Pattachariar alias Kuppusami instead of SundararasaPattachariar) accepted the job of doing poojas in the temple and wasdoing poojas initially on Sundays alone and later on two days a weekand subsequently daily and that after the death of Sundararasa https://hcservices.ecourts.gov.in/hcservices/ Pattachariar, his sons are doing the poojas in the suit temple. 15.A reading of the said article will show that the temple wasnot founded by Sundararasa Pattachariar, the father of the appellantsand that he was nominated by the employees of the Municipality to dopoojas in the temple. Therefore, Ex.A5 shall not lend any help tothe appellants/plaintiffs in establishing their contention that thesuit temple was founded by Sundararasa Pattachariar. Ex.A6 is the7th Edition of the Book by name “mangai” in which an article relatingto the suit temple, namely Vellore Sri Veera Anjaneyar Temple isfound at pages 48 to 50. Therein also the deity is described asMunicipality Anjaneyar. The history of the temple found in Ex.A6corresponds to the one found in Ex.A5 which was discussed supra. Assuch Ex.A6, besides lending no supfort to the case of theappellants/plaintiffs that the suit temple was founded by SundararasaPattachariar, is capable of destroying the said contention raised bythe appellants/plaintiffs. In addition, there is a document in theform of Ex.B1 signed and submitted by Sundararasa Pattachariar tothe Executive Officer, Arulmigu Tharageswaraswami Temple,Thottapalayam, Vellore as a reply for the demand made by him forhanding over the management of the suit temple pursuant to hisappointment as fit person. In the said letter, SundararasaPattachariar has described himself as Archagar of the suit temple.He has also admitted in categorical terms that he was doing poojascontinuously for about 15 years in the suit temple as per the requestmade by the employees of Vellore Municipality and that as such he wasnot having any authority or right to hand over the temple or theother articles found in the temple to the fit person appointed by theDepartment. The said letter marked as Ex.B1, was dated 22.12.1978.Sundararasa Pattachariar himself, in the said letter, candidlyadmitted that he was not having the Administration or management ofthe temple and that he was doing poojas only on the request of theemployees of Vellore Municipality. The unambiguous admission that hedid not have the power or right to hand over the temple or thearticles found therein and that he was doing only poojas will make itclear that he had not claimed any trusteeship either as a foundertrustee or as a hereditary trustee. It was not even his contentionthat he was otherwise in management of the suit temple so that hecould hand over the temple to the fit person. The same is enough toreject the contention of the plaintiffs that the deceased SundararasaPattachariar was the founder trustee of the suit temple and thathence, the appellants / plaintiffs, being his sons, are hereditarytrustees of the temple. 16.Though the first appellant/first plaintiff, who deposed asPW1, has stated in his chief examination that the suit temple wasfounded by his father Sundararasa Pattachariar, during crossexamination, he has admitted that they are having no document to showthat the suit temple was built by their father. He has also admittedduring cross examination that he did not know who brought the idols https://hcservices.ecourts.gov.in/hcservices/ to the temple. When a specific suggestion was put to him that oneVeeraraghavalu who was employed as the Commissioner of VelloreMunicipality in 1962 brought the Anjaneyar idol to the campus ofVellore Municipality and installed it there, PW1 was not in aposition to deny it. He pleaded ignorance. Similarly the othersuggestion that one Swaminathapillai had arranged for the daily poojain the suit temple was also not denied. It was also suggested thatemployees of Vellore Municipality initially installed the deity in athatched shed and that subsequently in 1963 they put up a bigstructure after removing the shed. The said suggestion was not deniedby PW1. 17.The 2nd appellant/2nd plaintiff, who deposed as PW2, in hiscross examination, has also admitted that he did not know when thesuit temple was built and who brought and installed the idols foundin the temple. He was also not in a position to deny the suggestionthat one Swaminathapillai collected money from public and that theemployees of Vellore Municipality constructed the temple. He wasalso not in a position to deny the suggestion that Swaminathapillaiand other employees of Vellore Municipality appointed SundararasaPattachariar as the Archaka of the suit temple. The above saidSwaminathapillai, who was working as an employee in VelloreNagaratchi between 1954 and 1962, has been examined on the side ofthe plaintiffs as PW3. An attempt was made by him during his chiefexamination to show that one day he found the idol of Anjaneyarlying on ground within the Municipality premises and he put it in theupright position; that thereafter he gave the responsibility of doingpoojas and other formalities to Sundararasa Pattachariar and thatSundararasa Pattachariar who did pooja and abishekam for the idol,upto 1962 put up a pucca building for the temple after 1962.However, during cross examination he would state that in 1962 afterfinding out the idol, he was doing poojas by collecting funds fromthe employees of Vellore, Municipalit; that he also put up athatched shed protecting the idol with the help of the employees ofhis office and that subsequently the temple with a pucca building wasconstructed with the help of the funds collected from the employeesof Vellore Municipality and public. It was also his admission thatSundararasa Pattachariar was appointed for doing pooja services inthe temple. It was also his admission that one Arumuga Mudhaliardonated the gate for the temple and the annual temple festival wasbeing conducted by one Ranganathan, who was the Chief SanitaryConservator of the Municipality. Similarly, one Sampath who wasexamined as PW4 on the side of the Plaintiffs, as against his initialattempt made in his chief examination to show that the suit templewas founded by Sundararasa Pattachariar, has admitted during crossexamination that one Veeraragha Raju, who was employed asCommissioner of the Vellore Municipality in 1962, brought andinstalled Veera Anjaneyar idol in the Municipality campus. He wasalso not in a position to deny the suggestion that the thatched shedfor the protection of the idol was put up by the employees of the https://hcservices.ecourts.gov.in/hcservices/ Municipality and that in 1963 the thatched shed was replaced by atiles structure by the employees of Vellore Municipality. He wasalso not in a position to deny the suggestion that initially oneSwaminathan was doing poojas and that after he resigned his jobSundararasa Pattachariar was appointed as Archaka to the suit temple.He has also admitted the fact that one Arumuga Mudhaliar had providedthe iron gate for the suit temple. It has also been admitted by PW4that one Ranganatha Mudhaliar who was working as Health Inspector inthe Municipality was conducting the annual festival of the temple. 18.The above said admissions made by all the witnesses examinedon the side of the plaintiffs would be more than enough to negativethe contention of the plaintiffs and to arrive at a conclusion thatSundararasa Pattachariar was neither the founder trustee nor ahereditary trustee of the suit temple and on the other hand he wasonly an Archaka appointed by the employees of Vellore Municipalitywho were looking after the management and other affairs of the suittemple. The learned trial Judge, on a proper appreciation ofevidence, has arrived at a correct conclusion that the claim of theappellants/plaintiffs that their father Sundararasa Pattachariar wasthe founder / hereditary trustee of the temple and after him theappellants/plaintiffs became the hereditary trustees of the templecould not be sustained and on the other hand the same should berejected. There is no defect or infirmity in the said findingwarranting any interference by this Court.Point Nos. 2 to 419.The learned counsel for the appellant made a feeble attemptto contend that though the deceased Sundararasa Pattachariar wouldnot have been proved to be the founder trustee or the hereditarytrustee of the suit temple, he was the hereditary Archaka of thesuit temple and hence the appellants/plaintiffs do have a right tofunction as hereditary Archakas of the suit temple. The saidcontention is untenable. First of all, there is a clear admission bythe witnesses examined on the side of the plaintiffs that thedeceased Sundararasa Pattachariar was doing poojas in the suittemple, as he was appointed by the employees of Vellore Municipalityto do poojas in the suit temple. As such, factually the above saidcontention of the appellants is erroneous and untenable. Section 55of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959has been amended by Tamil Nadu Act 2 of 1971 deleting all referencesto the nature of service under the religious institutions ashereditary or otherwise. In fact Subsection (I) of Section 55 as itoriginally stood, had been made applicable to office holders orservants of a religious institution in case where the office orservice was not hereditary. By the said amendment, besides deletingthe reference to the office or service as hereditary or non-hereditary, an explanation has also been added to the effect that theexpression of “office-holders or servants” shall include Archakas and https://hcservices.ecourts.gov.in/hcservices/ Pujaries. Subsection (2) as it originally stood was intended to beapplicable in cases where the office or service was hereditary and ithad also been incorporated in the said unamended section that theperson next in line of succession would be entitled to succeed to theoffice or service. By the above said amendment not only the same wasdeleted, but also a clause was substituted in the said section to theeffect that no person shall be entitled to appointment to any vacancyreferred to in Sub-section (1) merely on the ground that he is nextin line of succession to the last holder of the office. Subsections(1) and (2) as they stand amended by Tamil Nadu Act 2 of 1971 hasmade the service under the religious institution including one asArchakas and Poojaris to be non-hereditary in all cases. The amendedsubsection, in conjunction with explanation appended to subsection(1), makes it clear that no one can claim to be entitled to berecognized or appointed as hereditary Archaga or Poojari to areligious institution. On that ground also the claim of theappellants that they are entitled to be in the service of the templeas hereditary Archakas also deserves to be rejected as untenable. Inline with the above findings, this Court also holds that the Courtbelow has rightly rejected the prayer for the consequential relief ofinjunction. There is nothing wrong in the decision made by the Courtbelow that the appellants/plaintiffs are not entitled to any of thereliefs sought for in the plaint. There is no scope, whatsoever, tointerfere with the decree passed by the trial Court dismissing thesuit filed by the appellants under Section 70(1) of Hindu Religiousand Charitable Endowments Act challenging the order of theCommissioner, Hindu Religious and Charitable EndowmentsAdministration Department, Chennai dated 13.9.1988 made in A.P.No.81of 1982. There is no merit in the appeal and the same deserves to bedismissed with cost. 20.In the result, the decree passed by the trial Court inO.S.No.175 of 1989 on the file of Subordinate Judge, Vellore isconfirmed and the appeal is dismissed with cost. Interim injunctiongranted in C.M.P.No.18045/2001 shall stand vacated and theC.M.P.No.18045/2001 is closed.Sd/-Asst. Registrar//true copy//Sub Asst.Registrargpa https://hcservices.ecourts.gov.in/hcservices/ ToThe Subordinate Judge Vellore 1 cc to Government Pleader, Sr.No.444701 cc to Mr.T.R.Rajaraman, Advocate, Sr.No.44157 Judgment inA.S.No.1009 of 2001VS {CO}TP/10.11.2010.