Andhra HC (Pre-Telangana)
Chennamilla Chenna Basavaiah vs The Deputy Commissioner Of Endowments ... on 22 March, 2004
Equivalent citations: AIR2004AP467, 2004(4)ALD638, AIR 2004 ANDHRA PRADESH 467, (2004) 4 ANDHLD 638
Author: Bilal Nazki
Bench: Bilal Nazki
JUDGMENT Bilal Nazki, J.
1. The plaintiff filed a suit being O.S.No.559 of 1982 seeking a declaration that Neelakantaiah Samadhi in one acre of site situated in M.Nos.6-1-22, 23, 23-1 was not public religious institution. They also sought a decree for setting aside the order No.4 of Deputy Commissioner of Endowments, Andhra Pradesh, passed in O.A.No. 54 of 1977 on 11.3.1982.The plaintiff also asked for an injunction against the defendants, restraining them from interfering with his peaceful possession and enjoyment of the suit property. The suit has been dismissed. Therefore, the appellant filed this appeal.
2. The facts on the basis of which the suit was filed were that the plaintiff was the owner of the land measuring one acre within the Municipal limits of Tandur town, situated in Survey Nos.22, 23 and 23-1. The area in which the land is situated is known as 'Tarkari Baxar'. The plaintiff also claimed that he was in possession of the suit property. The suit property belonged to the family of fore-fathers of the family of the plaintiff. One late Sivalingaiah was the plaintiff's great-grandfather and Neelakantaiah was his grandfather. Neelakantaiah had four sons Veeraiah, Mallaiah, Sivalingaiah and Siddaramaiah. The family was a joint family but Veeraiah got separated from the family and severed his connections even during the lifetime of his father. Mallaiah had one son by name Basalingaiah. Plaintiff is the son of Sivalingaiah, the third son of Neelakantaiah. After the demise of Neelakantaiah the head of the family, Mallaiah the 2nd son of Neelakantaiah became the head of the family and managed the joint family property.
3. Mallaiah was paternal uncle of plaintiff. He had acquired one acre of site in Tandur town on behalf of the joint family. The family of the plaintiff belongs to the Community of Lingayats and as per the custom in vogue in the family, the mortal remains of Neelakantaiah were buried in the property belonging to the family and the family members used to pay homage to their ancestors by offering prayers in the place of burials. A small tomb was constructed for Neelakantaiah and a Shivalingam was placed on the tomb, where family members used to gather and offer prayers. Late Mallaiah applied and got assignment of one acre of land adjacent to the tomb of Neelakantaiah. As per custom, late Mallaiah was also buried in the same place and the family members were paying respects to the members of their elders. Thus, the area where the tomb of Neelakantaiah was located and the area where late Mallaiah was buried, were the private property of the family. The one acre of land acquired by Mallaiah on behalf of the family was assigned in his favour by Jagir administration. The area came to be known as 'Neelakantaiah Samadhi'. The Municipal taxes and other taxes were being paid by the family members and the family was in exclusive possession and enjoyment of the property for several decades.
4. After the death of Mallaiah, there were disputes in the family and the family separated. For the purpose of partition, written deeds and family arrangements took place and the plaintiff got one acre of site adjacent to the tomb exclusively. The plaintiff therefore, was the exclusive owner and was in possession of the suit property. He had been paying taxes. He applied and got permission from Tandur Municipality for construction of petrol pump and Saw-Mill in 1952. In between, he leased out the premises to some other persons also. The Municipality filed O.S.No. 93 of 1968 for recovery of Municipal dues in respect of site bearing No.6-1-22, 23 and 23-1 and recovered taxes from the plaintiff. The father of defendants No.3 and 4 had falsely represented to the endowment authorities that the suit site was a religious institution. Father of defendants No.3 and 4 Rajaiah was the brother of plaintiff's father. The Assistant Commissioner of Endowments of Medak and Ranga Reddy Districts, issued proceedings on 22nd June 1976, appointing non-hereditary trustees on the presumption that the Samadhi was a temple. He did so without verifying the facts, on the basis of report submitted by the Assistant Commissioner, who submitted the report without verifying the facts. Against the said order of Assistant Commissioner, plaintiff preferred a revision before Joint Commissioner of Endowments in R.P.No.36 of 1976. The Joint Commissioner rejected the revision on 08.12.1977, but held that the Deputy Commissioner was the proper authority to make inquiry under Section 77 of the Endowment Act. Thereafter, the plaintiff filed application under Section 77 of the Endowment Act before the Deputy Commissioner, which was numbered as O.A.No.54 of 1977. The father of defendants No.3 and 4 got impleaded themselves as party respondents and contested the petition filed by the plaintiff. Evidence was adduced on both sides. The Deputy Commissioner held that Neelakantaiah Samadhi and the site acquired by Mallaiah were religious institutions within Section 2 Clause 22 of the Endowments Act. This order passed by the Deputy Commissioner is challenged in the suit.
5. In the Written Statement filed by defendant No.1, it is stated that the suit property was an endowment property and the property was being used as a place of religious worship and was notified as Mastur-Ul-Amal-Wakf under Section 11 of the old Endowments Act. The suit property belongs to Neelakanteswara Swamy temple and Neelakantaiah Samadhi, but was not the private land of plaintiff. It was absolutely false to state that the plaintiff had the exclusive possession of the suit property. Neither the plaintiff nor his forefathers had anything to do with the suit property. The suit property is under Government's supervision and the plaintiff's family rendering puja in the temple and to the Samadhi. Suit property was a public place of worship for Lingayats and a Dharmasala was also constructed for the convenience of travelers and devotees. With respect to assignment of land to Mallaiah, it was stated that an ancestor of plaintiff applied to the Collector with a request to obtain permission for construction of Dharmasala in one acre of land adjacent to the temple and on the recommendations of the Tahsildar, the Collector permitted Jangam Mallaiah for construction of Dharmasala in file No.23/1323 Fasli subject to the condition that it will be used for the convenience of travelers and devotees of the temple. Therefore, the contention of plaintiff that Mallaiah acquired the land for family, was not correct. The District Collector had allotted the land only for construction of Dharmasala to the temple. Neelakantaiah was a saint and Lingayat therefore members of Lingayat community pay their homage to him by offering prayers at the place of his burial and also by worshiping Neelakanteswara deity. The Municipal taxes were always being paid on behalf of the temple only. Since the suit property belonged to the temple which is a religious institution, the defendant No.2 constituted the Trust Board to set right the affairs of the temple as it was being mis-managed. Neelakanteswara Swamy temple where the Shivalingam is placed, was constructed in the said property by the original saint himself. In an application which was filed by Mallaiah for grant of land, it was stated by him that the suit temple is Neelakanteswara Swamy temple.
6. On the basis of these pleadings, the following issues were framed by the trial Court :
"1.Whether the suit property is a public place of religious worship and Endowment property or is private property of the family of plaintiff ?
2. Whether the order of the Deputy Commissioner in O.A.54 of 1977 dated 11-3-1982 is liable to be set aside ?
3. To what relief ?"
7. Additional issue was framed on 26.6.1985 :
"Whether the suit is properly valued and the court fee paid is correct ?"
8. On 20th July, 1988, another additional issue was framed :
"Whether the plaintiff is entitled to the declaration and injunction as prayed for ?"
9. Issues No.1 and 2 were decided in favour of defendants and the suit property was held to be a public place of religious worship and other issues were not decided.
10. Now the main question which will have to be answered in this appeal is, whether the property was private property or it was a place of public worship and thereby an endowment property. Plaintiff examined PWs.1 and 2 and exhibited Exs.A-1 to A-21. Defendants examined DWs.1 to 3 and exhibited Exs.B-1 to B-8. One of the contentions in the suit has been that the one acre of land adjacent to the Samadhi was assigned to the predecessor in interest of the plaintiff. It was contested by the defendants who claimed in their written statement that one acre of land was assigned to Mallaiah for building a Dharmasala for the benefit of the visitors and devotees. Answer to this controversy would be of much importance because if the land was sought to be assigned for the purposes of building a Dharmasala for the visitors and devotees, then it would be difficult to assume that the property was private property therefore, this Court would like to deal with that aspect in the first instance.
11. Documents in Exs.B-1 to B-8 have been exhibited by the defendants. Before going to the statements of witnesses, some of the documents need to be mentioned. Ex.B-1 is a letter written by Collector to Tahsildar on 12th Bahman 1324 Fasli. This letter reads as under :
"Sub:- Application of Mallaiah Jangam regarding award of Land for the house of Dharmashala.
Sir, While forwarding a copy of letter of letter of the Secretariat of this Estate No.85/Sadar/No.82, Intezami dated 10th Dai, 1324 Fasli, I have to state that according to the plan enclosed herewith, the applicants are given permission for Dharmashala with the condition that this construction will be made merely for the convenience of the travelers and devotees, in which case NO. Nusul will be collected. In case it is used for other purposes, the Nuzul shall have to be paid which will be binding upon the applicants, and supervision be kept over the fact that no land in excess of the plan should be tress-passed. According to the condition mentioned in the copy of the said letter, an agreement bond initially be taken from Mallaiah Jangam, and then he will be competent to construct the Dharmashala.
Copy given to the applicant as an authority.
Yours faithfully Sd/- ALI ABBAS Officiating Collector."
12. When this order was passed, Mallaiah gave an affidavit which is annexed to Ex.B-1, in which he stated that he agrees with the conditions of assignment that the land was being allotted to Neelakantam Mandir and it is being allotted exclusively for constructing a Choultry (Dharmashala) for Yatrees and the land is being exempted from the taxes as a special case because it has to be used exclusively for the purpose of Yatrees. He also undertook that if the land is misused or utilized contrary to the undertaking and agreement, the Government was authorized to levy any tax or take any action in accordance with rules and regulations. Ex.B-4 is an agreement between Chanmalla Baslingappa S/o. Mallaiah and Chanmalla Rachaiah S/o.Siddaramaiah and Chanmalla Chanbasaiah S/o. Baslingaiah. They divided their properties excluding three properties which include the suit property also. The agreement stated, "So far as Item No.3 garden land and Samadhi of Neelakantaiah is concerned, is kept for religious purposes so its division is not advisable. As such this land of garden and Samadhi shall be in the joint possession of all the three persons without any partition. We all are responsible to meet the expenses jointly for the maintenance of this property. We agree to keep this property in good condition and shall make arrangement for the lighting and other improvement in the building etc. None of us have any right to utilize its income for ourselves."
13. Now coming to the statement of the plaintiff himself, he reiterated whatever he had stated in his plaint. But in his cross-examination he stated that the Deputy Commissioner examined him and recorded his statement, Ex.B-2 was his deposition. He further stated, "It is true that in Ex.B-2, I admitted that J. Mallaiah got this land under assignment from the Govt. for the construction of a Dharmashala. That fact is correct. Our ancestors acquired this property as an assignment under Ex.B-1. It is not correct to say that Jangam Mallaiah constructed a Dharmashala in the suit site as per the plan Ex.B-3. But Jangam Mallaiah constructed the red marked portion shown in Ex.B-3. The red marked consists of Neelakantaiah Samadhi and the compound walls. I do not know whether in the plan Ex.B-3 it is mentioned as Deval and not Samadhi. Ex.B-4 contains my signature. It is a family arrangement containing two sheets. Ex.B-4(a) is the English Translation of Ex.B-4. This document dt.21st Amardad 1349 Fasli. This family arrangement is in between me, Rachaiah the father of D-3 and D-4 and Basavalingaiah son of Mallaiah. As per that document the property was not divided and it was kept as mentioned in the document Ex.B-4."
14. He had also accepted that in 1963, Tahsildar made inquiry with regard to suit property and he participated in the inquiry, but did not know what were the findings. He did not know whether the Tahsildar had passed an order in terms of Ex.B-5. He did not file any appeal against the order of Tahsildar. Here it may be noted that the Tahsildar after hearing the parties including the plaintiff, had passed an order to the following effect, "In view of the above facts the aforesaid Samadi and its property may be taken under a Wakff under Section 23 and 11 of the Dastoor ul amal Wakf and Notification be issued through the Gazette under Section 5 of the said Act. Hence proposals to this extent may be sent to the Collector Endowment for early action."
15. He accepted that in Ex.A-16 i.e. the plan which he had submitted to Municipality, he had shown a temple in the suit land. In the cross-examination by defendants No.3 and 4, he admitted that their family in Tandur was respected for a long time by their community. The Lingayat community used to come to them for advice. Shivalingaiah was a very good writer. His poems were published. The book is called Chanmalla Shivaling Shatakam and every Hindu read this Shatakam with respect. Shivalingaiah was recognized a great person. He was blind. Neelakantaiah was his son. There would be a Rudra Bhoomi for burial of Lingayats and Jangams and if they own land, they would be buried in their own land by the side of Neelakanta's Samadhi. There was a meditation room under the Samadhi. Over the Samadhi, a room had been constructed and Shivalingam was installed in the Samadhi and Nandi idol was also installed infront of Shivalingam. The evidence of plaintiff himself leaves no room for any doubt that the property was always treated as a public temple and the land adjacent to it i.e. one acre of land was granted in favour of the temple for specific purpose of constructing a Dharmashala. Ex.B-7 has also been exhibited which is a receipt of Municipal tax for the year 1968. It was also issued in favour of Sri Neelakanta temple and not in the personal name of plaintiff or his father.
16. Various judgments were cited by the plaintiff/appellant. We do not think those judgments are necessary to be discussed. But since they have been produced, we make a brief reference to them. These judgments are only cited to show as to what a religious endowment would mean in terms of Hindu law.
17. An argument was made that creation of a Samadhi and perpetual settlement of property for worship of a tomb, is invalid therefore it could not be at all termed to be an endowment. The main judgment on which reference is placed is reported in Saraswathi Ammal and another V. Rajagopal Ammal1 wherein the Supreme Court was considering the earlier three judgments of the Madras High Court and a Full Bench of Madras High Court had held, "Erection of tombs for deceased persons and endowment of properties for the upkeep thereof and for the performance of worship thereat were common amongst Hindus of certain communities and that it is believed by them to redound to their spiritual benefit, and that the validity of such endowments have been recognized by the Courts.
18. But the Supreme Court found that the High Court had based its opinion on an earlier judgment reported in Muthukana Ana Ramanadham Chettiar Vs. Vada Levvai Marakayar [34 Madras 12 (H)]. The Supreme Court found that, that judgment was concerning Muslims and not Hindus. In the case before the Supreme Court, it found that there was no practice of Samadhi being used as a worship place. It held, "In the present case also, no question has been raised that in the community to which the parties belong there was any such well-recognized practice or belief. The defendants in the written statement make no assertion about it."
19. In para 6, the Supreme Court analysed the whole law :
"(6) It was held in the Madras decisions above noticed that the building of a Samadhi or a tomb over the remains of a person and the making of provision for the purpose of gurupooja and other ceremonies in connection with the same cannot be recognized as charitable or religious purpose according to Hindu law. This is not on the ground that such a dedication is for a superstitious use and hence invalid. Indeed the law of superstitious uses as such has no application to India. The ground of the Madras decisions is that a trust of the kind can claim exemption from the rule against perpetuity only if it is for a religious and charitable purpose recognized as such by Hindu law and that Hindu law does not recognize dedication for a tomb as a religious or charitable purpose. It is, however, strenuously argued by the learned counsel for the appellants that the perpetual dedication of property in the present case as in the Madras cases above referred to, must be taken to have been made under the belief that it is productive of spiritual benefit to the deceased and as being somewhat analogous to worship of ancestors at a sradh.
20. It is urged, therefore, that they are for religious purposes and hence valid. The following passage in Mayne's Hindu Law, Edn. 11, at p.192, is relied on to show that "What are purely religious purposes and what religious purposes will be charitable must be entirely decided according to Hindu Law and Hindu notions."
21. It is urged that whether or not such worship was originally part of Hindu religion, this practice has now grown up and with it the belief in the spiritual efficacy thereof and that Courts cannot refuse to accord recognition to the same or embark on an enquiry as to the truth of any such religious belief, provided it is not contrary to law or morality. It is further urged that unlike in English law, the element of actual or assumed public benefit is not the determining factor as to what is a religious purpose under the Hindu law.
22. Now, it is correct to say that what is a religious purpose under the Hindu law must be determined according to Hindu notions. This has been recognized by Courts from very early times. Vide ---'Fatma Bibi v. Advocate-General of Bombay', 6 Bom 42 (D). It cannot also be disputed that under the Hindu law religious or charitable purposes are not confined to purposes which are productive of actual or assumed public benefit. The acquisition of religious merit is also an important criterion. This is illustrated by the series of cases which recognize the validity of perpetual endowment for the maintenance and worship of family idols or for the continued performance of annual sradhs of an individual and his ancestors. See - 'Dwarkanath Bysack v. Burroda Persaud Bysack', 4 Cal 443 (E) and - 'Rupa Jagashet v. Krishnaji', 9 Bom 169 (F). So far as the textual Hindu law is concerned what acts conduce to religious merit and justify a perpetual dedication of property therefore is fairly definite. As stated by the learned author Prananath Saraswathi on the Hindu Law of Endowments at page 18-
"From very ancient times the sacred writings of the Hindus divided works productive of religious merit into two divisions named 'ishta' and 'purtta', a classification which has come down to our own times. So much so that the entire object of Hindu endowments will be found included within the enumeration of 'ishta' and 'purtta'."
23. The learned author enumerates what are 'ishta' works at pages 20 and 21 and what are 'purtta' works at page 27. This has been adopted by later learned authors on the law of Hindu Religious Endowments and accepted by Subrahmania Ayyar, J., in his judgment in - 'Parthasarathy Pillai v. Thiruvengada Pillai', 30 Mad 340 at p.342 (G). These lists are no doubt not exhaustive but they indicate that what conduces to religious merit in Hindu law is primarily a matter of Shastraic injunction. To the extent, therefore, that any purpose is claimed to be a valid one for perpetual dedication on the ground of religious merit though lacking in public benefit, it must be shown to have a Shastraic basis so far as Hindus are concerned. No doubt since then other religious practices and beliefs may have grown up and obtained recognition from certain classes, as constituting purposes conducive to religious merit. If such beliefs are to be accepted by Courts as being sufficient for valid perpetual dedication of property therefore without the element of actual or presumed public benefit it must at least be shown that they have obtained wide recognition and constitute the religious practice of a substantial and large class of persons. That is a question which does not arise for direct decision in this case. But it cannot be maintained that the belief in this behalf of one or more individuals is sufficient to enable them to make a valid settlement permanently tying up property. The heads of religious purposes determined by belief in acquisition of religious merit cannot be allowed to be widely enlarged consistently with public policy and needs of modern society."
24. This judgment is not going to help the appellant because the appellant himself asserted that a tomb was created, where people were going for worshiping and along with the tomb, Shivalingam was also placed. In his plaint, he stated, "The family members used to pay homage to their ancestors by offering prayers in the place of burials. A small tomb was constructed for Neelakantaiah and a Sivalingam was placed on the tomb where family members used to gather and offer prayers."
25. In his statement before the Court, the plaintiff stated that there was a room beneath the Samadhi therefore in our view, this judgment goes against the plaintiff because the judgment nowhere lays down if there was a practice in a community to establish tomb and offering worship, then it can not be dedication of property in perpetuity for the performance of religious ceremonies.
26. The judgment reported in M.R. Goda Rao Sahib Vs. The State of Madras2 is also not applicable because it merely says, "In order that there may be an endowment within the meaning of the Madras Hindu Religious and Charitable Endowments Act, the settlor must divest himself of the property endowed."
27. The judgment reported in Veluswami Goundan v. Dandapani3 is not relevant in view of the judgment of Supreme Court (1 supra). And in fact, this judgment was one of the judgments considered by the Supreme Court in 1953 SC 491 (1 supra). The judgment reported in Ramanasramam Vs. Commissioner for Hindu Religious and Charitable Endowments, Madras4 is also in conformity with the judgment of Supreme Court in 1953 SC 491 (1 supra) and in fact it relied on it.However, we are tempted to reproduce paras 37 and 38 of the judgment :
"(37) When this is borne in mind, I do not think that the case law presents any peculiar difficulties. A Samadhi over one who comes to be regarded as of the illuminati, or even the tombs of heroes may solve in course of time as a shrine of Hindu public religious worship. relates to such instances. Nor is the existence or consecration of an idol, a prerequisite. See . But in all such cases, what must be essentially regarded, and never lost sight of, is the character of Hindu public religious worship evinced at such shrines, whether this has grown through the decades and attached itself to the institution, or whether it was the full-fledged purpose at the birth of the shrine. Where this is present and undeniable, it will not matter that the origin is unsastraic, that the temple evolved from a samadhi, though ordinarily this conception is not in harmony with Hindu concepts, as emphasized in or if the Agama Sastras had been adhered to or not.
In my view it is with this background that we should comprehend and appreciate the dicta of Varadachariar J. in 1939-1 Mad LJ 134 : (AIR 1939 Mad 134) to the effect that the test was not whether the foundation conformed to any particular school of Agama Sastras, or of Viswanatha Sastri J. in that it was sufficient that the worshippers considered themselves likely to be the recipients of the bounty or blessings of a Divine presence, which they believed to exist at the place. Divorced from their contexts, such observations ought not to be interpreted as supporting a theory or thesis which would be opposed to the very purpose and scheme of the Hindu Religious and Charitable Endowments Act.
(38) But though Hinduism is a pervasive creed, with a genius for the assimilation of protestant movements which sprang up from its own field, where such movements still retain their individuality and character, they ought not to be confused with it. Thus, I do not think that it could be seriously maintained that a Jain or Buddhist temple is a "Hindu temple", though the founders of these creeds were Hindus conscious perhaps of a purificatory evangelism, but not of a mission to destroy the background of religion that gave them birth.
Equally I do not think that it could be justifiably argued that a meditation hall of a Theosophical Society, or the Durga of a Muslim Saint with Characteristic appanages (Firs) is a "Hindu temple" within the scope of the definition, merely because the Hindus also worship there in public on certain occasions. We must remember that the core of Hinduism is tolerance of all creeds, and a tendency to bow the knee at the shrines of all faiths. Surely, the legislature never intended that shrines or places of congregation and prayer or mediation, essentially non-Hindu in purpose and spirit, should be assimilated to Hinduism, or to Hindu religious institution by a kind of legal fiction. That is not the purport of the Act at all."
28. Thus there is sufficient evidence on record to show that the Samadhi which also had an idol installed was intended to be used for public religious purposes and in fact it has been the case of the plaintiff himself that a Samadhi was created and even an idol was installed. When the land was sought from the Government, it was sought for the purpose of building a Choultry for the benefit of the devotees. Therefore, the judgment of the trial Court cannot be faulted with.
29. The appeal is accordingly dismissed. The judgment of the trial Court is upheld. In the peculiar circumstances of the case, no order as to costs.