V.A.Chidambara Gounder v. Commissioner, Hindu Religious and Charitable Endowments Department

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17.06.2009CORAMTHE HONOURABLE MR.JUSTICE M.VENUGOPALA.S.NO.1160 OF 20011.V.A.Chidambara Gounder2.V.A.Palanivelu ... Appellants/Plaintiffs Vs.1.Commissioner, Hindu Religious and Charitable Endowments Department Nungambakkam High Road, Madras - 600 034.2.Deputy Commissioner, Hindu Religious and Charitable Endowments Department Coimbatore - 18... Respondents/DefendantsAppeal suit filed under Section 70(2) of the Tamil NaduHindu Religious and Charitable Endowments Act, against the judgmentand decree dated 04.08.1999 in O.S.No.218 of 1994 on the file ofthe Subordinate Judge, Udumalpet.For appellants: Mr.A.S.Vijaya RaghavanFor respondents: Mr.M.R.Murugesan Government Pleader for H.R.& C.E. J U D G M E N TThe appellants/plaintiffs have filed this appeal againstthe judgment and decree dated 04.08.1999 made in O.S.No.218 of 1994passed by the Subordinate Judge, Udumalpet in dismissing the suitfiled by the appellants/plaintiffs praying for the relief ofdeclaration that they are holding office as hereditary trustees inArulmigu Dhandayuthapani temple situated at Vedachandur Village,Pollachi Taluk, Coimbatore District within the meaning of Section 6(11) and Section 63(b) of the Tamil Nadu Hindu Religious andCharitable Endowments Act, 1959 and for setting aside the order ofthe Commissioner, H.R. and C.E. Department, Madras passed inA.P.No.62 of 1990 dated 09.12.1993 and the order of the Deputy https://hcservices.ecourts.gov.in/hcservices/ Commissioner, H.R. and C.E. Department, Coimbatore in O.A.No.92 of1987 dated 07.02.1990.2.The short facts of the case are as follows:(i)The temple popularly known as Arulmigu Dhandayuthapaniis situate in an extent of 35 cents in Village Natham, VedachandurVillage, Pollachi Taluk and the temple has no immovable properties.The plaintiffs are managing the affairs of the temple continuouslyfrom the date of death of their father and they are in possessionof and in charge of the temple for the past several years. Theplaintiffs father Avanandi Gounder, a strong devotee of LordDhandayuthapani, Palani, Madurai District, a frequent visitor ofPalani which is 80 kilometers from Pollachi to worship the LordDhandayuthapani and he has desired to construct a temple for LordDhandayuthapani in his own village and wanted to worship the Lordtwice in a day in his house itself. He has been a big landlord ofthe village and started the construction and completed the templein the year 1926 and installed the Deity. Being a God fearingpersonality and an affluent person, he has allowed the villagers toworship the Deity. He expired in 1956, leaving behind his five sonsviz., the plaintiffs along with their younger brothers Mylswamy,Nataraj and Balakrishnan who succeeded the office and managing theaffairs of the temple effectively. However, the younger brothers ofthe plaintiffs have no interest in the temple management andallowed the plaintiffs to look after the affairs of the temple.(ii)The annual income for the temple is Rs.1,700 peryear, by means of hundial collection. The day to day expenses andthe annual festival expenses are meted out from the said income andany deficiency is made up by the private funds of the plaintiffs.The electricity consumption charges are paid by the plaintiffs forthe service connection obtained by them. The poojari performs thepoojas in the temple and he is under the supervision of theplaintiffs. The office of the trusteeship of the temple has beenvested in the family of the plaintiffs and their father. No oneoutside the family of the plaintiffs has ever functioned as trusteein the temple.(iii)The sanctity of the temple is well preserved. Theplaintiffs have made vast improvements and renovated the temple.The name and fame of the temple has enhanced by attracting a largenumber of worshipers from the neighbouring villages.(iv)Seeing the nature and the management of the templebeing a hereditary one, no one has been appointed as trustee forthe temple by the department for the past several years. The H.R.and C.E. Department has tried to appoint non-hereditary trustees https://hcservices.ecourts.gov.in/hcservices/ for the institution recently without knowing the nature andmanagement of the temple. Inasmuch as the temple is under themanagement of hereditary trustees, the H.R. and C.E. Department hasno right to appoint non-hereditary trustees. In order to obtain astatutory declaration under Section 63(b) of the Act, theplaintiffs have filed O.A.No.92 of 1987 on the file of DeputyCommissioner, H.R. and C.E. Department, Coimbatore claiming theoffice of trusteeship of the temple as hereditary within themeaning of Section 6(11) and 63(b) of the Act. The originalapplication was dismissed on 7.2.1990. As against the said order,the plaintiffs have filed an appeal as per Section 69(1) of the Actin Appeal No.62 of 1990 on the file of the Commissioner, H.R. andC.E. Department, which has been dismissed on 9.12.1993. Therefore,the plaintiffs have filed the suit as per Section 70(1) of the Actpraying for the relief of declaration that the plaintiffs areholding office as hereditary trustees in Arulmigu Dhandayuthapanitemple, situated at Vedachanthur village, Pollachi Taluk,Coimbatore District within the meaning of Section 6(11) and Section63(b)of the Act and to set aside the order of the Commissioner,H.R. and C.E. Department, Madras passed in A.P.No.62 of 1990 dated9.12.1993 and the Deputy Commissioner, H.R. and C.E. Department,Coimbatore in O.A.No.92 of 1987 dated 7.2.1990.(v)The respondents/defendants have filed a writtenstatement inter alia stating that the plaintiffs are managing theaffairs of the temple after the death of their father as de factotrustee and even though the temple has been brought to the noticeof the Department, no action has been taken for appointment fornon-hereditary trustees for the temple since the rules have been inforce since 2.12.1959 and further that the plaintiffs have filed apetition before the Deputy Commissioner, H.R. and C.E. Department,under Section 63(b) of the H.R. and C.E. Act praying for adeclaration as hereditary trustees, before ever the Department hasinitiated necessary steps for the appointment of non-hereditarytrustees and moreover, the plaintiffs have failed to establish thatthey are holding the office of the hereditary trustee in theproceedings before the Deputy Commissioner, H.R. and C.E.Department and also in the appeal and that the orders passed underSection 63(b) and under Section 69(1) by the authorities of H.R.and C.E. are valid and in accordance with law and that theplaintiffs have not produced any documentary evidence to show thatthe suit temple have been founded by the father of the firstplaintiff in the year 1926 and therefore, prays for dismissing thesuit with costs.(vi)Before the trial court on the side of theappellants/plaintiffs, witnesses P.W.1 and P.W.2 were examined and https://hcservices.ecourts.gov.in/hcservices/ Ex.A1 to A.9 were marked. On the side of respondents/defendantswitnesses, D.W.1 was examined and Ex.B1 to B8 were marked.(vii)The trial Court on an appreciation of oral anddocumentary evidence and also after analysing the same in depth hascome to the conclusion that the appellants/plaintiffs are notentitled to claim the relief of declaration that they are holdingoffice as Hereditary trustees in the suit temple and the orderspassed by the respondents/defendants dated 09.12.1993 and07.02.1990 are correct and consequently dismissed the suit withcosts. 3.The points that arise for determination are:(1) Whether the appellants/plaintiffs are entitled to therelief of declaration that they are holding office as Hereditarytrustees in Arulmigu Dhandayuthapani temple, at Vedachanthurvillage, Pollachi Taluk, Coimbatore District, within the meaning ofSection 6(11) and Section 63(b) of the Tamil Nadu Hindu Religiousand Charitable Endowments Act, 1959 ?(2) Whether the orders of first respondent/firstdefendant and second respondent/second defendant of H.R. & C.E.Department dated 09.02.1993 and 07.02.1990 are liable to be setaside?4.Findings:- Point Nos. 1 and 2:The learned counsel for the appellants/plaintiffscontends that the trial Court should have seen that there is noclaim by any other person or others to the right of management ofthe suit temple and that the trial Court has not appreciated thefact that the suit temple has been built 70 years before throughevidence of P.W.2 to the effect that the father of theappellants/plaintiffs have constructed the temple out of his ownfunds and further, merely because the offerings of public areaccepted and they are allowed to pray in the temple, it cannot beheld that the suit temple is a public temple and added further justbecause the temple has been constructed in a poramboke land, onecannot come to the conclusion that the suit temple does not belongto the appellants or their father and that the report of theInspector of H.R. & C.E. Department to the effect that the suittemple is managed by the appellants/plaintiffs alone has not beentaken into account by the trial Court in a proper perspective andtherefore, prays for allowing the appeal to promote substantialcause of justice. 4.Per Contra, the learned Government Pleader (H.R. & C.E)submits that the appellants/plaintiffs have not proved that they https://hcservices.ecourts.gov.in/hcservices/ are holding the office as Hereditary trustees and that theappellants/plaintiffs after the death of their father are managingthe affairs of the temple as de facto trustees and the payment ofelectricity charges etc., will not confer any right or title to theappellants/plaintiffs in claiming their right of Hereditarytrusteeship and just because no outsider (other than the family)has acted as trustees, the same will not cloth their claim asHereditary trustees and that the judgment of the trial Court doesnot suffer from any infirmity or illegality in the eye of law andtherefore, the same need not be interfered with by this Court inthis appeal. 5.P.W.1/second plaintiff in his evidence has deposed thatthe suit temple is situated in Vedachanthur village in Nathamporamboke land and that his father Avanandi Gounder constructed thesuit temple in the year 1926 and that his father used to frequentlyvisit Palani and that he has a ardent belief in God and therefore,he has decided to construct a temple and that he died in the year1956 and till his death he has been looking after the management ofthe temple and that he has five sons and apart from theappellants/plaintiffs there are three brothers and that they haveasked the appellants/plaintiffs to look after the temple. 6.It is the further evidence of P.W.1 that there is ahundi in the temple and for its maintenance, there is a registerEx.A1 and that the hundial will be opened once in six or sevenmonths by the temple Inspector in their presence and that they haveemployed an employee on a monthly salary of Rs.30/- and that thesaid employee will take the offerings and that they will conductfestivals with their own expenses and if anyone out of love offersmoney, they will receive it and the other three brothers in theirfamily are not interfering with the affairs of the temple and thaton 24.03.1983 a Kumbabishegam was performed. It is pertinent topoint out that P.W.1 in his cross examination has specificallystated that no petition has been submitted that his father has beenthe Hereditary trustee and that it is correct to state that norecord has been submitted in the case about the existence of templefrom 1926 and further it is correct to state that only from01.10.1994, the receipt and expenditure accounts have been filed asper Ex.A7 and prior to 01.10.1994 the account details have not beensubmitted and in Ex.A2 Savings Bank account details have beensubmitted from 1995 and the earlier accounts have not beensubmitted and when arrangements have been made for appointment ofTrustee post in they year 1997, they have filed the case.7.P.W.2 in his evidence has deposed that P.W.1's fatherhas constructed the suit temple and that he has been in management https://hcservices.ecourts.gov.in/hcservices/ of the affairs of the temple and after his death, P.W.1 is managingthe affairs and that the daily pooja and other expenses are borneout by the plaintiff at his own expense for performing pooja thereis one person, for whom the salary is paid by the plaintiff andthat the plaintiff has obtained the service connection and theelectricity charges are paid by the plaintiff and that the suittemple has a bank account and that the hundial will be opened bythe plaintiff in the presence of the officers and that themanagement of the temple by the plaintiff has not been opposed byanyone and that temple has no other properties and that the templehas been constructed in the public place of the village and thatthe same has been constructed in the year 1926 and that the suittemple is not in the place belonging to the plaintiffs and that thepresent poojari has been serving for the last ten years and that heis not aware of the income of the temple and that he has anacquaintance with the plaintiff and that the plaintiff is near hishouse. 8.The evidence of D.W.1/Suit Inspector of the H.R. & C.E.Department is to the effect that the plaintiffs have not filedproper document to claim the right of Hereditary trusteeship andthat he is not aware in which year that the kovil has come intoexistence and that he has not seen the first report of the suittemple but he has seen the other records and that the suit templehas come into their Department's fold and till date the same is intheir control and that the temple hundial, poojari salary, otheraccounts are in possession of plaintiffs and that an applicationhas been sent in the year 1987 in regard to the non-Hereditarytrusteeship claim. 9.Section 6(11) of the Tamil Nadu Hindu Religious andCharitable Endowments Act, 1959 deals with Hereditary trustee whichmeans "the trustee of a religious institution, the succession towhose office devolves by hereditary right or is regulated by usageor is specifically provided for by the founder, so long as suchscheme of succession is in force".10.Significantly, Section 6(20) refers to "temple"meaning "a place by whatever designation known, used as a place ofpublic religious worship and dedicated to, or for the benefit of,or used as of right by, the Hindu community or of any sectionthereof, as a place of public religious worship". https://hcservices.ecourts.gov.in/hcservices/

11.Undoubtedly, in a civil suit, plaintiffs or thedominus litis and the same is not an universal rule. In MunuswamyChetty (died) and others V. Commissioner H.R. & C.E. (1993) 1 MLJat page 183 it is observed that there are three kinds of Hereditarytrustees as per the definition.(A) A trustee, succession to whose office devolves byhereditary right.(B) A trustee, succession to whose office is regulated byusage.(C) A trustee, succession to whose office is specificallyprovided for by the founder. 12.One cannot indulge in assumption or presumption to theeffect that the appellants/plaintiffs are entitled to hold officeas Hereditary trustees in the suit temple because of the fact thatthere is absence of contra evidence in this regard. Moreover, theclaim of Hereditary trusteeship right must be based on reliable andacceptable satisfactory evidence of sufficient proof in thisregard. 13.In Ex.B5 the suit temple festival notice it ismentioned as "Dhandayuthapani Thiru Kovil Administrator,Thiruvedachanthur" and nowhere in this document, theappellants/plaintiffs name are found as Hereditary trustees. 14.In Ex.A6 electricity charges payment receipts the nameof the temple is alone mentioned and again in Ex.A6, theappellants/plaintiffs name are not seen either as Hereditarytrustees or as individuals who are managing the affairs of the suittemple. Added further, the father of the plaintiffs apart from theappellants/plaintiffs as sons do have three other sons. But theyhave not figured as appellants in the proceedings in A.P.No.62 of1990 before the first respondent / first defendant and that theyhave also not been arrayed as plaintiffs Nos. 3 to 5 in O.S.No.218of 1994 on the file of the trial Court. This Court opines that allindividuals who are interested in the office of trusteeship must bemade as necessary parties in the suit. Moreover, the suit inO.S.No.218 of 1994 on the file of trial Court is not one under O.1R.8 of C.P.C.15.On a conspectus of overall consideration of facts andcircumstances of the present case, suffice it for this Court topoint out that the appellants/plaintiffs have not proved to thesatisfaction of this Court that they are managing the affairs ofthe temple after the death of their father in the capacity ashereditary trustees and it cannot be disputed that the temple is in https://hcservices.ecourts.gov.in/hcservices/ a poramboke land and there is no clinching evidence from what/whichsource of income the father of the plaintiffs has constructed thetemple and equally there is no evidence to find out whether donorshave contributed to the construction of the said temple or even toknow whether the father of the appellants/plaintiffs hasconstructed the suit temple with his own funds, there is absolutelyno convincing, acceptable evidence in this regard and it is to benoted that laying claim for trusteeship of a temple is differentfrom claiming the temple to be of ones own and in this view of thematter, this Court holds that the judgment of the trial Court doesnot suffer from any irregularity or illegality in law and the samedoes not call for interference in the hands of this Court and theappeal fails and the same is hereby dismissed.In fine, for the reasons mentioned supra, the Appeal ishereby dismissed. The judgment and decree of the trial Court dated04.08.1999 are confirmed. In the circumstances of the case, thereshall be no order as to costs.sgl/tk Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Subordinate Judge, Udumalpet.2.The Section Officer, VR Section, High Court, Madras.104.SSR(CO)SR/25.6.2009 Judgment inA.S.No.1160 of 2001