Madras High Court
Appusamy vs A.V. Sundararajan And Ors. on 9 September, 1996
Equivalent citations: (1997)1MLJ218
JUDGMENT S.S. Subramani, J.
1. Third defendant in O.S. No. 19 of 1991, who is also the first defendant in O.S. No. 362 of 1991, on the file of the Subordinate Judge's Court, Sankari, is the appellant in both the second appeals.
2. There was also another suit filed by the appellant O.S. No. 329 of 1988 against the plaintiffs in O.S. No. 19 of 1991. All these three suits were jointly tried and a common judgment was delivered on 29.11.1993. All the suits were dismissed. There were three appeals before the lower appellate court as A.S. Nos. 10, 11 and 41 of 1994, on the file of District Judge, Salem. A.S. No. 41 of 1994 was dismissed, confirming the Judgment of the trial court. The other two appeals were allowed. It is against the judgment in A.S. Nos. 10 and 11 of 1994, these two Second Appeals are filed.
3. In O.S. No. 19 of 1991, the relief sought for was, to declare the suit temple as a denominational temple exclusively belonging to and managed by the 24 Manai Telugu Chettiar Community of Amarakundhi Village, Omalur Taluk, Salem District, and to restrain the defendants and their men from interfering with the management of the suit temple by the community either by appointing Trustee or any other manner by means of a permanent injunction, and also award costs.
4. In the plaint in O.S. No. 19 of 1991, it is said that Arulmigu Angalamman Temple, i.e., the suit temple, was founded by persons exclusively belonging to 24 Manai Telugu Chettiar Community and was managed by that Community by electing members from among themselves for the administration of the same. The suit temple is a religious denomination temple exclusively belonging to the community which is a religious denomination having common faith and common organisation. Arulmigu Angalamman is the Deity of the Community. Expenses for the maintenance of the suit temple and for the conduct of the festival are met by the community from out of the collection from among themselves, and collection is not made from outside the community. It is said that the suit temple is a denominational temple and the community is entitled to the rights and protection guaranteed under Article 26 of the Constitution of India. Even Section 107 of the Hindu Religious and Charitable Endowments Act provides that the provisions of H.R. and C.E. Act are not attracted for denominational temples and it will not affect the rights guaranteed under the Constitution of India. Plaintiffs issued a notice under Section 80 of the Code of Civil Procedure to the defendants asking them not to interfere with the management of the suit temple by "the community. The cause of action is said to be when the defendants interfered with the management of the suit temple and after issue of Section 80, C.P.C., notice. At the inception of the suit, there were only two defendants, i.e., the Commissioner, H.R. and C.E. and the Assistant Commissioner, H.R. and C.E., Salem. Defendants 3 to 8 got themselves impleaded, and the plaint was subsequently amended as per order in I.A. No. 367 of 1992 dated 25.6.1992.
5. In the written statement filed by the second defendant, it was contended that the suit temple is not a denominational temple, but it is a public temple and proceedings have been initiated as per O.A. No. 101 of 1983, on the file of Deputy Commissioner (Judicial), Madras. It was said that during enquiry in that proceeding, plaintiffs could not prove the line of succession and genealogy which is a genuine feature required for cause of action for the suit. It was said that the suit temple is a public temple coming within the definition of 'public temple' under that Act. The second defendant prayed for dismissal of the suit.
6. In the common written statement filed by defendants 3 to 8, they disputed the claim of the plaintiffs. They contended that the suit temple is not a denominational temple, nor was it managed by 24 Manai Telugu Chettiar Community of the village, it is said that these defendants also managed and administered the affairs of the temple, and the third defendant further preferred a claim that he has got a right in the temple. Even though the defendants admitted that the suit temple is an temple, according to them, it is a public temple belonging to all the communities in the Village. In the written statement, the third defendant further said that he has got some rights over the suit temple, and the details of various rites and ceremonies conducted, in the temple are also extracted. They also prayed for dismissal of the suit.
7. In the other suit, namely, O.S. No. 362 of 1991, the relief prayed for was only ah injunction restraining the defendants and their men from interfering in any manner with the plaintiff's possession and enjoyment of the suit temple and its exclusive management and celebration of the festivals. The suit was originally filed before the District Munsif's Court, Mettur, as O.S. No. 54 of 1984. Later, when O.S. No. 19 of 1991 was filed before the Sub Court at Sankari, the said suit O.S. No. 54 of 1984 was withdrawn and renumbered as O.S. No. 362 of 1991, on the file of Sub Court, Sankari.
8. In that suit, the allegation is that the temple absolutely belonged to Telugu Chettiar Community. The plaintiff's as well as one A.O. Gopal and P.Murugan's forefathers, namely, Baulee Chettiar and Chennammal were the owners of the suit temple. The said Baulee Chetty and Chennammal established their title to the property in A.S. No. 68 of 1862 in the Civil Court of District Court of Salem, against on Thanda Gounder and others who claimed title to the suit temple. In a special appeal preferred by the suit temple. In a special appeal preferred by the said Thanda Gounder and others before the High Court of Judicature at Madras in 381 of 1863, the judgment of the District Court was confirmed and the said Baulee Chetty and Chennammal's title to the suit temple was declared on 11.1.1864. It is said that the said judgment has become final and ever since that date, plaintiff's father's ancestors, plaintiff's father and after their demise, plaintiff and their community men are in exclusive possession and enjoyment of the temple as owners thereof. It is further said that the suit temple is purely a private temple falling outside the scope of H.R. and C.E. Act, and it is only the plaintiff with his community people, has been managing the affairs of the temple, performing Daily Pooja. Defendants have no right, title or interest in the temple. The festival of Maha Sivarathri is celebrated, and they are doing it every year. In that suit, the cause of action is stated to be when the defendants caused obstruction to the plaintiff from commencing Sivarathri celebration and, therefore, the suit was filed for injunction as stated therein.
9. In the written statement filed by the defendant in that case, he denied the right of the Telugu Chettiar community and also the right of the plaintiffs forefathers named therein. It is said that the temple was not established either by Baulee Chetty or Chennammal, nor by the community. Regarding the suits referred to in the plaint in that suit, it was said that the decisions therein had not decided as to who established the temple, and the said matter was not an issue in that case. It was further said that out of four persons who were managing the temple, one of them, namely, one Thanda Gounder, sold his Pooja rights to the ancestors of the plaintiff, which was claimed by Baulee Chetty and Chennammal, and an ex pane decree was passed in that suit. It is said that before that decree, the Telugu Chettiar Community did not have any right or interest. They also denied the claim of exclusive possession. The claim that the plaintiff's father was in management of the temple was also denied. The other contentions raised in the written statement in the connected suit have been raised in the present suit also.
10. The third suit filed by the appellant herein was to declare his right in the appointment of Poojari to the temple. Since there is no appeal therefrom, it is unnecessary to narrate the facts of that case in these second appeals.
11. As stated already, all these suits were clubbed together and evidence was taken in common. Evidence was taken in O.S. No. 19 of 1991 treating it as the main suit, and the evidence so recorded was treated as evidence for all the suits. On the side of the plaintiff, P.Ws. 1 to 5 were examined and Exs. A-1 to A-87 were marked. On the side of the defendants, D.Ws. 1 to 11 were examined and Exs.B-1 to B-93 were marked. Exs. X-1 to X-4 were marked through witnesses.
12. On appreciation of the entire evidence, trial court came to the conclusion that the plaintiff in O.S. No. 19 of 1991 has not proved that the suit temple is a denominational temple. Consequently, the injunction suit O.S. No. 362 of 1991 filed by the first plaintiff in O.S. No. 19 of 1991 was also dismissed. The trial court was of the view that the authorities under the H.R. and C.E. Act have appointed plaintiff and his father as 'Dharmakarthas' of the suit temple, and that too for certain periods,'and the authorities under the Act were managing the affairs. There is no-evidence that the community has established the temple and there is also no evidence to show that the plaintiff and his predecessors were managing the temple as of right. It also found that the community to which the plaintiff belongs is not a religious denomination. When the matter was taken in appeal by the plaintiff before the lower appellate court, it was of the view that since the plaintiff and his father have been managing the affairs, continuously for some years, it can be presumed that the community has established the temple, it also took into consideration Exs. A-51, A-52 and A-73 for the purpose of finding that even a century back, plaintiff's predecessors have been asserting their rights over the temple and were claiming shares over the income from the Poojas. This, according to the lower appellate court, is a substantial piece of evidence in favour of the plaintiff's case. The lower appellate court also took into consideration various other exhibits produced on the side of the plaintiff wherein the entire correspondence with the H.R. and C.E. Department was done only by the plaintiff and his father. It further found that the festivals were also being conducted under the auspices of the plaintiff and the Committee Members appointed by him. For these reasons, the decree of the trial court was set aside and a decree was granted as prayed for. It is against the said judgment, the appellant has preferred these second appeals.
13. At the time of admission of the second appeals, the following substantial questions of law were raised for consideration:
(1) Whether the learned District Judge was right in decreeing the suit when it was barred by the provisions of Order 2, Rule 2 of Civil Procedure Code? and (2) Whether the learned District Judge was justified in decreeing the suit when the plaintiffs had admitted in earlier proceedings and in the course of evidence as to the public nature of the temple and the final orders of the H.R. & C.E. Department holding it to be a public temple?"
14. At the time of arguments, it was found that the substantial questions of law raised in these second appeals (extracted above) are not sufficient, and the parties were allowed to argue on the question as to whether the plaintiff's community, i.e., 24 Manai Telugu Chettiar Community of Amarakundhi Village is a 'religious denomination' and also whether the plaintiff has proved that the Suit temple was established and maintained by that community.
15. Question No. 2 originally raised at the time of admission of the second appeals and the substantial questions of law raised at the lime of arguments can be considered together. It may also be noted that a decision in O.S. No. 19 of 1991 against which Second Appeal No. 620 of 1991 of has arisen, will be sufficient to dispose of both the second appeals. If it is ultimately found that the community is not a religious denomination or that it has not established or maintained the temple, the injunction prayed for in the other suit from which Second Appeal No. 621 of 1995 has arisen also will have to be allowed.
16. In the plaint in O.S. No. 362 of 1991, in paragraph IV, it is stated thus:
The suit temple also absolutely belonged to the Telugu Chettiar community. The plaintiff's as well as one A.O. Gopal and P. Murugan's forefathers namely Baulee Chetty and Chennammal were the owners of the suit temple. The said Baulee Chelty and Chennammal established their title to the property in A.S. No. 68 of 1862 in the Civil Court of District Court of Salem, against one Thanda Gounder and others who counter claimed the title to the suit temple. In the special appeal preferred by the said Thanda Gounder and others before the High Court of Judicature at Madras in 381 of 1863, the judgment of the appellate court was confirmed that the said Baulee Chetty and Chennammal's title to the suit temple was declared on 11.1.1864. It is submitted that the said order has become final and ever since the date the plaintiff's ancestors, the plaintiff's father and after their demise the plaintiff and their community men are in exclusive possession and enjoyment, of the temple as owners thereof.
In paragraph 5 of the plaint in that suit, it is further said thus:
...In fact and in law even1 the Assistant Commissioner of H.R. & C.E. has no authority to interfere with the affairs of the temple which is purely a private temple falling outside the scope of the Act....
(Italics mine)
17. In O.S. No. 19 of 1991, even though the suit was filed seven years after the institution of O.S. No. 54 of 1984, on the file of District Munsif's Court, Mettur (which was later withdrawn and re-numbered as O.S. No. 362 of 1991, Sub Court, Sankari), the averment in paragraph 3 of the plaint reads thus:
Arulmigu Angalamman Temple hereinafter referred to as suit temple is situated in Amarakundhi villagey Omalur Taluk, Salem District. The suit temple is founded by exclusively belonging to and managed by 24 Manai Telugu Chettiar Community of Amarakundhi Village, hereinafter referred to as community. The suit temple is managed by the community by electing members from among themselves; for the administration of the suit temple. No other community ever Interfered with the management of the suit temple by the said community.
18. It is further stated in paragraph 4 therein, that the suit temple ism religious denominational temple exclusively belonging to the community which is a religious denomination having common faith and common organization.
19. A reading of the averments in both these plaints shows that they are really inconsistent. In O.S. No. 54 of 1984, it is-said that the plaintiff's fore fathers Baulee Chettiar and Chennammal were the owners of the temple and they established their title to the suit temple in A.S. No. 68 of 1962 in the Civil Court of District Court of Salem, which was confirmed in a special appeal. It is also said that it is a private temple. In the other suit O.S. No. 19 of 1991, the allegation is that the temple was founded and managed by 24 Manai Telugu Chettiar Community of Amarakundhi Village. If it is a denominational temple as alleged in O.S. No. 19 of 1991, it cannot be a private temple as contended in the previous suit. If it is a Temple belonging to the Community, then it will not be a private Temple, but it will only be a public temple, the beneficiaries of which are the religious denomination or the members of the entire community.
20. It is settled law that in the State of Tamil Nadu all the temples are considered to be 'public temples', and if any person claims a particular temple as a private temple or denominational temple, it is for that person to prove the same. How far that presumption is rebutted in this case is to be decided, taking along with the definition of 'religious denomination' and also how far the ingredients of Article 26 of the Constitution of India are satisfactorily proved, in the sense that the Community has established and maintained the schedule temple.
21. I will first take up the question as to what is meant by 'religious denomination.'
22. In one of the earliest cases reported in Sri Iakshmindra Theertha Swamiar of Sri Shirur Mutt and Anr. v. The Commissioner, Hindu Religious and Charitable Endowments, Madras and Ors. (1952) 1 M.L.J. 557, a Division Bench of this Court considered the same in paragraphs 40 and 41 of the judgment (at page 639) which read as follows:
Article 26 which relates to religious denominations is also relied on. It runs as follows:
Subject to public order, morality and healty, every religious - denomination or any section thereof shall have the right-
(a) to establish and maintain institutions for religious and charitable purpose;
(b) to manage its own affairs, in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
The dictionary meaning of the word 'denomination' as given by Webster is of action of naming from of after something; giving a name to, calling by a name; a characteristic or qualifying name given to a thing or class of things; that which anything is called; an appellation, designation or title; a collection of individuals classed together under the same name; now almost always specially a religious sect or body having a common faith and organisation and designated by a distinctive name.
There being several religious in India such as Islam, Christianity, Zoroastrianism and Hinduism, it may not be wrong to take Hinduism and the members of that religion as constituting a religious denomination in a larger sense or if it should be taken in a limited sense Advaita, Dwaita; Visishtradwaita, Saivitea may be another classification and the members of each faith may be treated as members of one denomination. In an Irish case Mac Laughlin v. Campbell (1906) 1 L.R. 588, the meaning of "denomination" was given by Fitz Gibbon, L.J. as only a 'Sect Writ Large'. Even taking it in that sense, the division of the members of the Hindu religion based upon a system of philosophy which is adopted by a group of members may be treated as a denomination or sect and any section of denomination, and a division made either on territorial or sectional basis may be treated as a section thereof.
(Italics supplied)
23. In the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) 1 M.L.J. 596 : 1954 S.C.J. 335, when the matter was taken in appeal, the Supreme Court held thus:
The word "denomination" has been defined in the Oxford Dictionary to mean" a collection of individuals classed together under the same name; a religious sect or body having a common faith and organisation and designated by a distinctive name." The practice of setting up Maths as centres of theo logical teaching was started by Shri Sankaracharya and was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu Religion. Each one of such sects or sub-sects can be called a religious denomination, as it is designated by a distinctive name - in many cases it is the name of the founder - and has a common faith and common spiritual organisation. The followers of Ramanuja, who are known by the name of Shri Vaishnavas, constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers. Further, Article 26 contemplates not merely a religious denomination but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this Article.
24. In Saifuddin Saheb v. State of Bombay . The question raised was, whether the community has got the power to excommunicate any person for enforcing religious discipline. Their Lordships were considering the vires of the provisions of Bombay Prevention of Excommunication Act (42 of 1949), and in paragraph 54 of the said judgment, it was held thus:
...The identity of a religious denomination consists in the identity of its doctrines, creeds and tenets and these intended to ensure the unity of the faith which its adherents profess and the identity of the religious views are the bonds of the union which binds them together as one community. As Smith B, said in Dill v. Watson (1836) 2 Jones Rep. (Ir Ex) 48 at 91, in a passage quoted by Lord Halsbury in Free Church of Scotland v. Overtoun 1904 A.C. 515 at 616.
In the absence of conformity to essentials, the denomination would not be an entity cemented into solidity by harmonious uniformity of opinion, it would be a mere incongruous heap of, as it were, grains of sand, thrown together without being united, each of these intellectual and isolated grains differing from every other, and the whole forming a but nominally united while really unconnected mass; fraught with nothing but internal dissimilitude, and mutual and reciprocal contradiction and dissension.
A denomination within Article 26 and persons who are members of that denomination are under Article 25 entitled to ensure the continuity of the denomination and such continuity is possible only by maintaining the bond of religious discipline which would secure the continued adherence of its members; to certain essentials like faith, doctrine, tenets and practices.
(Italics supplied)
25. In S.P. Mittal v. Union of India , their Lordships followed the decision reported in Commissioner, H.R. & C.E., Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt and said that a 'religious denomination' must satisfy three conditions. In paragraph 8 of the judgment, it was held thus:
Article 16(2) guarantees that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. Article 16(5) exempts from the right guaranteed under Article 16 the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
In that case, their Lordships Considering the validity of Auroville (Emergency Provisions) Act, 1980 and whether the followers of Aurobindo is a religious denomination. In that case, their Lordships accepted the principle enunciated in Nalam Ramalingayya v. The Commissioner of Charitable and Hindu Religious Institutions and Endowments I.L.R. 1971 A.P. 320, wherein 'religious denomination' was defined thus:
Thus it is the distinct common faith and common spiritual organisation and the belief in a particular religious teacher of philosophy on which the religious denomination is founded or based, that is the essence of the matter, but not any caste, or sub-caste or a particular deity worshipped by a particular caste or community.
These principles were again reiterated by the Supreme Court in the decision reported in Bijoe Emmanuel and Ors. v. State of Kerala and Ors. . That is a case where three students were expelled from a school for the reason that they did not join in the signing of National Anthem in the morning Assembly, although they stood up respectfully when the National Anthem was sung. These students said that their belief did not permit them to join in any other rituals except the prayers of Jehovah, their God. In that case, their Lordships, held thus:
The meaning of the expression 'religion' in the context of the Fundamental Right to freedom of conscience and the right to profess, practise and propagate religion, guaranteed by Article 25 of the Constitution, has been explained in the well known cases of Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt , Ratilal Panachand Gandhi v. State of Bombay and S.P Mittal v. Union of India (1983) 1 S.C.C. 515 It is not necessary for our present purpose to refer to the exposition contained in these Judgments except to say that in the first of these cases Mukherjee, J. made a reference to Jehovah's Witnesses" and appeared to quote with approval the views of Latham, C.J. of the Australian High Court in Adelaide Co. v. The Commonwealth and those of the American Supreme Court in West Virginia State Board of Education v. Barnette. In Ratilal's case, we also notice that Mukherjee, J. quoted as appropriate Davar, J.'s following observations in Jamshed Ji v. Soonabai:
If this is the belief of the community and it is proved undoubtedly to be the belief of the Zoroastrian community, - a secular Judge is bound to accept that belief - it is not for him to sit in judgment on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be to the advancement of his religion and the welfare of his community or mankind.
We do endorse the view suggested by Davar, J.'s observation that the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein.
(Italics supplied)
26. In Bramchari Sidheswar Shai and Ors. v. State of W.B. and Ors. (1995) 4 S.C.C. 64, the question that came for consideration was, whether Ramakrishna Mission is a religious minority entitled to the benefits of Article 30 of the Constitution of India. Their Lordships said that Ramakrishna Mission is a 'religious denomination'. In paragraphs 55 to 58, their Lordships gave the reasons for the same. The said paragraphs read thus:
In view of the said pronouncements of this Court, persons who claim to belong to religious denomination envisaged under Article 26 of the Constitution can succeed in such claim only when they fulfil or satisfy the tests laid down therein, to writ;
(i) a collection of individuals who have a system of beliefs with regard to their conducive spiritual well-being;
(ii) a Common organisation; and
(iii) a definite name.
A Division Bench of the High Court of Calcutta in its judgment under appeal has held that Ramakrishna Mission is a religious denomination by stating thus:
The followers of Shri Ramakrishna have a common faith. They have a common organisation and they are designated by a-distinct name.
No good reason is shown to us for not accepting the view of the Division Bench on the pjbint that Ramakrishna Mission or Ramakrishna Math is "a religious denomination". It is not in dispute and cannot be disputed that Shri Ramakrishnna could be regarded as a religious teacher who expounded, practised and preached the principles of vedanta oh which Hindu religion is founded, to meet the challenges posed to humanity in the changing world and made his disciples to spread the principles so expounded by him not only in India but all over the world as the basic principles of Hinduism. It cannot also be disputed that the disciples of Ramakrishna Math and Ramakrishna Mission for propagation and promotion of the principles, so expounded, practised and preached by Ramakrishna Paramahanda, by way of publications and building of temples, prayer halls and building of educational, cultural and charitable institutions as performance of sevas resulting in the coming up of organisations as Ramakrishna Maths and Ramakrishna Missions, all over the world. These Maths and Missions of Ramakrishna composed of the followers of principles of Hinduism as expounded, preached or practised by Ramakrishna as his disciples or otherwise form a cult or sect of Hindu religion. They believe in the birth of sage Ramakrishna in Daishineswar as an Avatar of Rama and Krishna and follow the principles of Hinduism discovered, expounded, preached and practised by him as those conducuive to their spiritual well-being as the principles of highest Vedanta which surpassed the principles of Vedanta conceived and propagated by Sankaracharya, Madhvacharaya and Ramanujacharya, who were earlier exponents of Hinduism. Hence, as rightly held by the Division Bench of the High Court, followers of Ramakrishna who are a collection of individuals who adhere to a system of beliefs as conducive to their spiritual well-being, who have organised themselves collectively and who have an organisation of definite name as Ramakrishna Math or Ramakrishna Mission could, in our view, be regarded as a religious denomination within Hindu religion, inasmuch as they satisfy the tests laid down by this Court in Shri Shirur Mutt case for regarding a denomination as a "Religious denomination".
For the said reasons, we hold that persons belonging to or owing their allegiance to Ramakrishna Mission or Ramakrishna Math belong to a religious denomination within Hindu religion or a section thereof as would entitled them to claim the fundamental rights conferred on either of them under Article 26 of the Constitution of India and answer point 2, accordingly, in the affirmative.
27. Our High Court had occasion to consider this point in the decision reported in Assistant Commissioner, H.R. and C.E., Salem v. N.K.S.E. Mudaliar , Srinivasan, J., as he then was, held in paragraph 30, thus:
As seen from the decision of the Supreme Court, the words 'religious denomination' must take their colour from the word "Religions. It is, therefore, clear that the common faith of the community should be based on religion. It is essential that they should have common religious tenets. The basic cord which connects them should be religion and not anything else....
The said decision was followed in Kuppuswamy Chettiar, T.T. v. State of Tamil Nadu 100 L.W. 1031. In that case, their Lordships were considering the question whether the community called 'Beri Chetty' is a religious denomination. In paragraph 25 of the judgment, the learned Judge said:
...I am not able to comprehend as to how there could be a religious denomination without a "Guru". This itself is sufficient to non-suit the plaintiffs.
In paragraph 32 of the judgment, the learned Judge further said thus:
...P.W. 1 himself has admitted that the community members feel that the temple is the property of the community founded by one of their own members. It is not his case that it was founded by the religious leader of the community for the spiritual benefit the community so as to claim the same as a religious denomination....
The learned Judge further said thus:
...Since the plaintiffs themselves admitted that the idol was brought by one of their own casteman and a Achari, it cannot be said that the suit temple was established and maintained by the religious leader for the spiritual benefit of the Beri Chetty community....
And, finally, the learned Judge summarised the ingredients (in paragraph 33) thus:
A careful reading of the oral as well as the documentary evidence let in on behalf of the plaintiffs go to show that this temple has been maintained by the Beri Chetty caste from time immemorial, but has not been established as a temple for the spiritual benefit of the Beri Chetty caste by any founder of the community. As stated earlier, there is nothing on record to show that Abinava Dharmasivachariar has established the community of Beri Chetty and the suit temple for the benefit of the said Beri Chetti community. To sump up, the plaintiffs have not proved
(i) their community has been formed by a 'Guru';
(ii) the said 'Guru' prescribed certain preaching's and tenets peculiar to Beri Chetty caste,
(iii) such preaching's and tenets are being followed from time immemorial in the suit temple till to-day.
(iv) Special ceremonies or poojas are being conducted exclusively for the Beri Chetty community, without admitting members of other communities.
28. In H.R. and C.E. Administration v. Swaminatha Iyer (1988) 2 M.L.J. 345, the question raised was whether a Brahmin community of Naranammalpuram who claimed themselves to be the managers of Sri Karpaga Vinayagar temple, is a religious denomination. In paragraph 9 of that judgment, the learned Judge held thus:
...There is not even a whisper of an averment either in the plaint or in the evidence that the members of the Brahmin community of Naranammalpuram have a common faith, i.e., a system of beliefs or doctrines peculiar to themselves other than those that are common to the Hindus in general or that they have a common organisation or that they are designated by a distinctive name....
The claim of a religious denomination was, therefore, rejected.
29. In State of Tamil Nadu v. Vilampatti Nadar Uravinmuraikku Pathiyappatta , the question raised was, whether Hindu Nadar community is a separate religious denomination. In paragrah 9 of the judgment, it was held thus:
...In order to hold that the particular community constitutes a religious denomination within the meaning of Article 26 of the Constitution, it must be proved that the said community has a system of beliefs or doctrines which the members of the community regard as conducive to their spiritual well being. It is essential that the members of that community must have common religious tenets peculiar to themselves other than those which are common to the entire Hindu community....
30. On the basis of the abovesaid settled position of law, first I will have to consider whether the plaintiff belongs to a religious denomination. I have already extracted the relevant portions of the plaint. Except for a bald statement that they are having a common faith and a common organisation, how far they differ from the ordinary Hindu tenets is not stated. P.W. 1 has been examined and the only sentence which could be of some use is the one said by him in his chief-examination on 14.12.1992 which reads thus:
Learned Counsel for the plaintiff was not in a position to bring to my notice any other piece of evidence about the speciality that differs them from the general Hindu community. The only sentence which is of some use to the plaintiff says that during Newmoon Day in the month of Masi, the community people use to do some special worship in that temple. The plaintiffs have no case that they have any religious Leader or 'Guru' or that they are following any religious practice as directed by their Leader. They have also no case whether they have any 'Guru' who has preached the tenents which are peculiar to their caste or community and the same are being followed from time immemorial. They have no case that special ceremonies or Poojas are being conducted exclusively for the very community without admitting the members of other communities. They have also no case that their community was formed by a 'Guru'. They have also no case that the entire community is based on a religion and they have common religious tenets.
31. Regarding the origin of the temple, I have already extracted the two paragraphs in the respective plaint which I have said as inconsistent. In the earlier plaint, the plaintiff claims it as a private temple and their ancestors as owners. When we come to the later plaint, we find that it is said that the suit temple belongs to a community. The main reliance is placed on Exs. A-51 and A-52. Ex. A-51 is a judgment of the Civil Court at Salem. In the written statement in O.S. No. 54 of 1984, the appellant has admitted that the dispute was between the predecessors of the plaintiff and the defendants in that case. So, naturally, that will have a bearing in the result of the suit. From a reading of the judgment, it is clear that the dispute was as to the validity of two documents claimed between them. Plaintiff in that case who was the predecessor of the defendants herein, relied on a conditional deed of sale and the plaintiff's predecessor herein relief on another sale deed. In that case, it was held that the sale deed in favour of the predecessor of the plaintiff herein is genuine, and the suit was dismissed. This judgment was confirmed in Ex. A-52. It is on the basis of this judgment, O.S. No. 54 of 1984 itself was filed. I do not find that the plaintiff was asserting a denominational right in that case. The only question in that case was, who was entitled to share in the Poojas. Even when P.W. 1 was examined, he has admitted that the right of 'Dharmakartha' was not an issue in that case, nor was the matter in issue. Whether that was a representative suit is also not a matter in evidence here. Therefore, Exs. A-51 and A-52 will be of no legal consequence so far as the decision in this case is concerned. But, according to me, Ex. A-51 is against the claim of the plaintiff. I will state the reasons in the later portion of this judgment.
32. The only other document over which reliance was placed before the lower appellate court is Ex. A-73. It is an unregistered agreement which is alleged to have come into existence after Ex. A-52 judgment. At the time when the same was sought to be proved, counsel for the appellant objected to the marking of the same and the lower appellate court noted, 'Marked subject to proof.' In cross-examination on 7.1.1983, P.W. 1 said that he could not identify the signatures in Ex. A-73 and he could not even identify the persons who signed the same. He also pleaded ignorance as to who prepared the same. No attempt was made by plaintiffs to prove Ex. A-73 by any other evidence. If so, that document also is of no significance so far as the plaintiff's case is concerned. All other exhibits in this case are after 30.6.1965. On 30.6.1965, plaintiffs' father was admittedly appointed as 'Dharmakartha' by the H.R. and C.E. Authorities. As 'Dharmakartha', he was entitled to correspond with the Department and also manage the Temple. Once he is appointed by the H.R. and C.E. Authorities, law presumes that he was appointed by the Authorities in exercise of their powers under the act and that it is a 'public temple'. At the time when he was appointed, plaintiff's father did not object that he cannot be so appointed in view of Section 107 of that Act. Subsequent to the death of the plaintiff's father, plaintiff was also appointed under Ex. A-16 dated 15.3.1983. All the documents that are filed in this case, except Exs. A-51, A-52 and A-53, lose their importance and need not be considered for deciding the issue in this case. Whether the plaintiff of the community had an anterior right before 1965 is to be decided for which there is no evidence in this case.
33. I have already extracted the legal position as to what is meant by 'religious denomination'. The allegations in the plaint are vague and there is also no evidence to come to the conclusion that the community is a religious denomination.
34. Under Article 26 of the Constitution, a religious denomination is entitled to certain rights only if it is proved that it has established and maintained the temple or institution, as the case may be. To prove the establishment of the Temple, there is no evidence. When P.W. 1 was examined on 17.12.1992, he pleaded ignorance as to who established the temple, but he said that he has heard that it might have been established by his community people. The relevant portion of his deposition reads thus:
Proceedings have been initiated before the Deputy Commissioner, H.R. and C.E. in O.A. No. 101 of 1983. Before the Authority also, plaintiff was examined. While he was examined before that authority, he admitted that various constructions were made in the temple by other persons who have nothing to do with the community. While he was examined in this case, he said that all constructions and donations were made only by the members of the community. Therefore, those portions of the deposition given by P.W.I before the Deputy Commissioner were marked as Exs. B-3, B-4, B-6, B-8, B-10 and B-11. From those portions of the evidence, it can be seen that even strangers have participated in the construction and have also donated funds to the temple. We must note that the plaintiffs wanted to have the temple as a denominational temple under the Act, and it was their application, namely, O.A. No. 101 of 1983 which came up for consideration. The same was dismissed by the Authority under Ex.B-l5. Though subsequent to the institution of the suit, it cannot be discarded as irrelevant. The effect of Exs. A-51 and A-52 were considered in that Order and the Authorities held that the plaintiffs' claim cannot stand. The authority also held that the plaintiff has failed to prove the genealogy, that from the very inception till date only the members of the community are managing the affairs of the temple.
35. In this connection, the decision reported in Azeez Basha v. Union of India , also will have to be considered. In that case, their Lordhsips said that the word 'established' coming under Article 30 of the Constitution means 'bring into existence.' Interpreting both Arts.26 and 30 of the Constitution, their Lordships said thus:
The words "establish and maintain" in Article 26(a) must be read conjunctively and it is only those institutions which a religious denomination establishes which it can claim to maintain. The right to maintain institutions for religious and charitable purposes would include the right to administer them. But the right under Clause (a) of Article 26 will only arise where the institution is established by a religious denomination and it is in that event only that it can claim to maintain it.
36. In the earlier portion of this judgment, I have said that Ex. A-51 is really against the claim of the plaintiff. I also said that I will give the reasons in the later portion of this judgment. In paragraph 3 of Ex. A-51, it is seen that the right of the plaintiffs herein is based on a purchase, and that is the basis of the claim in O.S. No. 54 of 1984. That means, they have not established the institution, but they are claiming only a right by purchase. In that view also, the claim put forward by the plaintiff that it is a 'religious denomination' coming within the definition of Article 26 of the Constitution of India read with Section 107 of the H.R. and C.E. Act, cannot stand. In fact, Ex. A-51 recognised and declared the sale in favour of the plaintiff's predecessor as valid and genuine. The very basis of the plaintiff's claim that the community established or that the predecessor owned the property, therefore, falls to the ground.
37. Learned Senior counsel for the respondents submitted that when the plaintiff and his father and forefathers are in management of the temple, a presumption can be drawn that it was their community which established the suit temple. Learned Senior Counsel submitted that merely because the plaintiffs could not name the person who established the institution or Temple, they cannot be non-suited. Learned Senior Counsel relied on an unreported decision of a Division Bench of this Court in M.R. Venkatachalapathy and Ors. v. The Deputy Commissioner, H.R. & C.E., Tanjore and Anr. W.P. Nos. 804 and 805 of 1957, dated 11.8.1960. Learned Senior Counsel stressed the following passage in that order:
There is no evidence to show who founded the temple and when it was founded. There is, however, ample evidence that all along only the Sourashtra community has managed the affairs of the Temple. A presumption of lawful origin is permissible. We can hold that the Sourashtras have managed the affairs of the temple for over two centuries, because, they were all along entitled to such management. Besides, for over a century, it has been recognised and referred to in documents as a Sourashtra Temple, that is, a Temple belonging to Sourashtras of Kumbakonam.
(Italics mine) On the basis of the above observation, learned Senior Counsel submitted that the decision pronounced by Srinivasan, J., as he then was, and reported in Assistant Commissioner, H.R. & C.E., Salem v. K.S.E. Mudaliar , requires reconsideration. In that case, the learned Judge said that there must he proof as to who established the institution or temple. I do not think there is any inconsistency between the two decisions. In the Division Bench judgment cited by learned Senior Counsel, there is no evidence to rebut that presumption. But in this case, there is no evidence to show as to who was managing the temple prior to 1965 (i.e., before Ex. A-6). That apart, Ex.A-51 rebuts the presumption. It conclusively shows that the plaintiff's predecessor did not establish the Temple. So, the decision cited by learned Senior Counsel for the respondents may not have any application to the facts of this case.
38. In view of the above findings, I hold that the plaintiffs, have failed to prove that the community to which they belong has a separate entity having a distinctive name as 24 Manai Telugu Chettiar Community or that they are a 'religious denomination' as claimed by them. I further hold that the plaintiffs have miserably failed to substantiate their case that they have established the suit Temple and they were managing the same from the very inception. We can find that they were managing the Temple only form Ex. A-6 and not before, and that too on the basis of Orders of the Authorities under the H.R. and C.E. Act.
39. Question No. 2 and substantial questions raised at the time of arguments are found in favour of the appellant and against the respondents/plaintiffs.
40. On question No. 1, no argument was put forward by learned Senior Counsel for the appellant. On a perusal of the records, I do not think that the suit can be dismissed on the ground of Order 2, Rule 2, C.P.C. It is seen that the plaintiff had earlier filed a suit as O.S. No. 90 of 1987 and the same was dismissed for default. Pleadings in that case are not before court, without which it cannot be decided as to whether the suit is barred under Order 2, Rule 2, C.P.C. Question No. 1 is, therefore, found against the appellant.
41. In the result, both the second appeals are allowed. The judgment and decree of the lower appellate court are set aside, and that of the trial court are restored. The appellant is entitled to his costs in all the three courts.