Madras High Court
The Commissioner vs P.M.Raja (Died) on 2 November, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
MADURAI BENCH OF MADRAS HIGH COURT, MADURAI
RESERVED ON : 10.10.2018
PRONOUNCED ON : 02 .11.2018
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
Appeal Suit No.801 of 2002
and
C.M.P.(MD)Nos.380 of 2016 and 9367 of 2018
1.The Commissioner,
Hindu Religious and Charitable
Endowments Administration Department,
119, Uthamar Gandhi Road,
Nungambakkam High Court,
Chennai – 34.
2.The Joint Commissioner,
HR & CE Administration Department,
No.1, Melachithrai Veedhi, Melthalam,
Madurai Nagar. ... Appellants / Defendants 1 & 2
Vs
1.P.M.Raja (Died)
2.Karthik
3.Sivaji Poosari
4.Ramesh Poosari
5.P.Pandian Poosari
6.K.Pandian Poosari
7.P.Maruthupandi
8.Lakshmi
9.Saravana Pandian
10.Rabellao
11.P.Seethalakshmi
12.P.M.Pandiarajan
13.Dhanam
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2
14.P.M.Veerapandiyan
15.K.Ponnan ... Respondents / Plaintiffs
(R7 was brought on record as legal heir of the deceased 5th
respondent vide order dated 23.03.2015 made in M.P.(MD)Nos.1
to 3 of 2015)
(R8 to R10 were brought on record as legal heirs of the deceased
1st respondent vide order dated 15.09.2015 made in M.P.
(MD)Nos.1 to 3 of 2015)
(R11 was brought on record as legal heirs of the deceased 5th
respondent vide order dated 15.09.2015 made in M.P.(MD)No.6
of 2015)
(R12 to R15 were impleaded as respondents vide order dated
13.10.2015 in M.P.(MD)Nos.7 and 8 of 2015)
Prayer: Appeal Suit is filed under Section 70(2) of the Tamil
Nadu Hindu Religious and Endowments Act, 1959, to set aside
the judgment and decree passed in O.S.No.413 of 2000, dated
28.06.2002 on the file of the Principal Subordinate Court,
Madurai.
For Appellants :Mr.V.R.Shanmuganathan
Special Government Pleader
(HR & CE)
R1 and R5 :Died
For R2, R4, R6 and R15 :Mr.V.Sitharanjan Das
For R3 :Mr.D.Jayam
For R7 :No appearance
For R8 to R10 and R12 to R14 :Mr.J.Anandavalli
For R11 :Mr.R.G.Shankar Ganesh
***
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3
JUDGMENT
The defendants, namely, the Commissioner, Hindu Religious and Charitable Endowments Administration Department, Chennai and the Joint Commissioner, HR & CE Administration Department, Madurai, in O.S.No.413 of 2000, are the appellants herein.
2.The suit in O.S.No.413 of 2000 had been filed by six plaintiffs, namely, P.M.Raja, Minor Karthik, Sivaji Poosari, Ramesh Poosari, P.Pandian Poosari and K.Pandian Poosari under Section 70(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, seeking a judgment and decree to set aside the order of the Commissioner, HR & CE Department, Chennai, in S.M.R.No.12/92, dated 24.03.2000, and declare that the plaintiffs are entitled to one half share in the hundial income as their remuneration for the service rendered in the temple and for Paditharam as declared, confirmed, granted and received as per the order of the Deputy Commissioner, HR & CE Administration Department, Madurai in O.A.No.77/80, dated 08.05.1981 and to pass an order of permanent injunction https://www.mhc.tn.gov.in/judis 4 restraining the defendants from enforcing the order of the Commissioner, dated 24.03.2000 and the memo issued by the Joint Commissioner, the second defendant, dated 30.03.2000 stopping the payment to the Poosaris at the rate of one half share of hundial income as they were previously receiving in accordance with the order in O.A.No.77/80, dated 08.05.1981 and for a mandatory injunction directing the defendants to comply with the order of the Deputy Commissioner in O.A.No. 77/80, dated 08.05.1981 and for a direction for payment of costs of the suit.
3.This suit came up for consideration before the Principal Subordinate Court, Madurai. By judgment dated 28.06.2002, the learned Principal Subordinate Judge, decreed the suit. Challenging that judgment, the defendants have filed the present appeal.
4.Pending the first appeal, the 5th plaintiff / 5th respondent, P.Pandian Poosari died and his adopted son, P.Maruthupandi was brought on record as 7th respondent herein. Thereafter, the 1st plaintiff / 1st respondent, P.M.Raja, also died and his legal https://www.mhc.tn.gov.in/judis 5 heirs were brought on record as respondents 8 to 10. Thereafter, P.Seethalakshmi was impleaded as 11th respondent as another legal heir of the deceased 5th plaintiff / 5th respondent. Thereafter, by order dated 13.10.2015, P.M.Pandiarajan, Dhanam, P.M.Veerapandiyan and K.Ponnan were impleaded as respondents 12 to 15. In the meanwhile, the 2nd second plaintiff / 2nd respondent Karthik had attained the age of majority and he was also declared as major and the 3rd plaintiff / 3rd respondent was discharged as guardian.
5.The suit temple is “Arulmigu Pandi Muneeswarar Temple”, which is situated in Melamadai Village, Madurai North Taluk, Madurai. The plaintiffs claimed that they are the hereditary poosari-cum-trustees of the suit temple. They do their pooja service according to their share of 'Murai' rights. The temple is said to be a very ancient temple. In the plaint, it is stated that the temple was managed and administrated and by the ancestors of the plaintiffs, even prior to 1800 AD. They alone also performed the poojas. It was stated that one Pandian Kodangi was the trustee-cum-poosari. After his death, Periasamy Poosari became the trustee–cum-poosari. His wife was https://www.mhc.tn.gov.in/judis 6 Vallilammal. They had two sons, Pandian and Periyannan @ Mahamuni. Valliammal acted as guardian for her minor sons, on the death of Periasamy Poosari. It is also stated that in O.A.No. 459 of 1933, the temple had been declared as excepted temple and that the Trusteeship is hereditary. It had been claimed in the plaint that Valliammal was only a de-facto poosari. Thereafter, on the death of Pandian in 1950, Veeramalai, Sangan, Ponnan, Kodangi and Pandian were entitled to one half share and his brother Periannan @ Mahamuni was entitled to other one half share in the Murai rights. The male hairs of these two branches continued to manage the temple as trustees. They also had a beneficial interest in the income, namely, the hundial collection. It was stated that the hereditary trustees of the suit temple cannot be equated with trustees of other temple, who have a right to manage without any beneficial interest.
6.It had been stated in the plaint that the temple has no immovable properties yielding income, except the land in which the temple and a building have been constructed for the convenience of the devotees. There are no other sources of income for the temple. The only source of income is the cash https://www.mhc.tn.gov.in/judis 7 Kaanikkai offered by the devotees in the hundial placed in the temple. The temple also gets some income by way of rent from the stalls put up near the temple. The plaintiffs stated that they are not paid remuneration for the pooja service rendered by them. They also do not get any continuous, since the pooja 'murai' is divided into 10 shares, out of which, 5 shares go to the heirs of Pandian and 5 shares go to the heirs of Periannan @ Mahamuni. The two branches each one get half right in pooja 'murai'. During these pooja 'murai' days, the poosaris get a small Kanikkai in Thattu. Except this, there is no other income for the poosaris. All the devotees may also not offer money in the Thattu. Consequently, there are occasions when poosaris may not get any income at all. These instances led to disputes among them about the share of the 'murai'.
7. An earlier suit in O.S.No.383 of 1973 was filed before the District Munsif Court, Melur. A compromise decree was passed. The 'muraithars' agreed to be entitled to some share in the income. So far the income from the hundials was concerned, it was agreed that it would be subject to the result of the writ appeal in W.A.No.487 of 1969. The said writ appeal had been https://www.mhc.tn.gov.in/judis 8 filed in connection with the action taken by the department to seal the hundial and allegedly trying to interfere with the right of the 'muraithars'. The writ appeal was disposed of by the Division Bench of the High Court, on 27.04.1974 and it had been held that the hundials, which are kept in the temple and sealed by the department will each have two locks, one put by the department and the other put by the trustees of the temple.
8.It had been further stated in teh plaint that the High Court had directed that the hundial boxes would be opened every Saturday, between 11.00 am and 01.00 pm in the presence of trustees and the amount collection would be handed over to the hereditary trustees. It was stated that in accordance with the said order, the hundials are opened in the presence of Inspector, HR & CE Department, every week and the hereditary trustees are receiving the hundial income and are immediately depositing the amount in the bank in the account of the temple. That amount has been utilised for the expenses for running the day-to- day administration of the temple and also for meeting statutory payments, namely, salaries to temple servants, electricity, charges and such other expenses.
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9. It had been stated that the plaintiffs had no other source of income. They were dependant on and live upon the small amount of Kanikkai, that is received in Thattu during their pooja. They have to provide Vibuthi, Kunkumam, coconuts, oil etc., from their own pockets. It had been stated that it was highly impossible to do service and pooja without receiving a share from the income of the temple. It had been stated that the plaintiffs should be paid a portion of the income of the temple, since the income is earned only on account of the service and maintenance of the temple by the plaintiffs. It was stated that pending the second appeal in S.A.No.1397 of 1978, the parties moved the High Court for appropriate directions in C.M.P.No. 181 of 1980 to receive 2/3rd of the receipt of the hundials, as their remuneration. The petition was dismissed on 02.04.1980. However, the High Court directed the parties to move the Deputy Commissioner, HR & CE Department, under Section 63 of the Hindu Religious and Charitable Endowments Act, 1959.
10.Accordingly, the hereditary trustees / poosaris filed O.A.No.77/1980 before the Deputy Commissioner, HR & CE Department, to decide and direct that poosaris / trustees are https://www.mhc.tn.gov.in/judis 10 entitled to have 2/3rd of the receipts from the hundial as their remuneration for rendering service as poosaris and also for meeting the costs of the Paditharam of the temple. They claimed that they are performing pooja service faithfully and perfectfully. They claimed that they and their family members are dependant on the income of the temple. The Deputy Commissioner, HR & CE Department, Madurai, whose successor in office was the second defendant n the suit, allowed O.A.No.79/1980 and held that the trustees / poosaris are entitled to one half share of the hundial income as remuneration, instead of monthly salary or time scale of pay subject to the condition that the poosaris would be entitled to the share only so long as they do the service properly, faithfully and also subject to the further condition that the expenses to the Paditharam, like, coconuts, oil for lamp, oil for abisekam and other materials are met by the poosaris personally. It had been stated that the trustees have been receiving the remuneration and Paditharam from the hundial income according to the order of the Deputy Commissioner, Madurai in O.A.No.77/1980, dated 08.05.1981. https://www.mhc.tn.gov.in/judis 11
11. It had been further stated in the plaint that the first defendant, the Commissioner, HR & CE Department, initiated suo motu proceedings under Section 69(2) of the Act in C.No. 80911/91-D2, dated 11.10.1981. Thereafter, a note was made that action under Section 69(2) of the Act was not necessary and it was dropped. Another suo motu proceedings was initiated by the first respondent under Section 69(2) of the Act on 06.01.1984. It was observed that the order was passed that the Deputy Commissioner pursuant to the directions by the High Court and that the order relates only to hundial income and that there are 10 shares in the post of poosaris and consequently that suo motu action was also dropped.
12.It had been further stated in the plaint that the first defendant again initiated suo motu proceedings for a third time under Section 62(2) of the Act. According to the Commissioner, the income of the temple cannot be divided among the Poosaris without first depositing the same in the bank account. It was stated that such division of the income was not in consonance with Rule 14 of the Rules frame under Section 116(2)(xxiii) of the Act regarding pay and emoluments of temple servants. It was https://www.mhc.tn.gov.in/judis 12 also found that such division would lead to variation in the shares due to fluctuations in the hundial income. It was also stated that Paditharam expenses should be met only, as prescribed under Section 58 of the Act and appropriation of this expense from the hundial income was against the procedure. The first defendant set aside the order of the Deputy Commissioner in O.A.No.77 of 1980. It had been claimed by the plaintiffs that this order by the first defendant was not a valid order. It had been stated that it was liable to be set aside under Section 70(1) of the Act.
13.It had been thereafter stated that the second defendant had issued a memo to the hereditary trustees directing them not to share the income. This memo was dated 30.03.2000. In view of the earlier order of the Commissioner, dated 24.03.2000, the entire hundial amount was deposited in the bank without giving any share for the poosaris. It was claimed that the order of the Commissioner/first defendant was wrong. It was further claimed that the entire hundial income was deposited in the bank in the first instance and only then, the shares are disbursed by way of cheques by the managing trustees. It was also claimed that the https://www.mhc.tn.gov.in/judis 13 service rendered by the Archakas in the temple has to be properly remunerated by way of payment of emoluments and temple service should not be allowed to suffer. It was stated that the first defendant had not disqualified the plaintiffs from holding the post of Hereditary Poosariship. It was stated that the first defendant had not denied that there is no other income in the temple. The first defendant had ignored the nature of service rendered by the plaintiffs. They also spent amount for Padithram. It was stated that the first defendant had not considered the increasing cost of living.
14.It had been finally stated that owing to the memo issued by the second defendant, their share of the hundial collection had not been given to the poosaris. They were not in a position to purchase the materials for pooja like coconut, oil for lamp etc., and perform pooja effectively. It was stated that the order of the Commissioner, the first defendant, was affecting the entire life of the family of the plaintiffs. It is under these circumstance that the plaintiffs filed the suit under Section 70(1) of the Tamil Nadu Hindu Religious and Endowments Act, 1959, for the reliefs stated above.
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15.The second defendant filed a written statement on his behalf and on behalf of the first defendant. It was stated that the suit temple was governed by the H.R.E. Board. Vide order No. 2074, dated 05.09.1935 in O.A.No.459/1933, the temple was declared to be an excepted temple. It was held that the members of Valliammal family have been in management of the temple and its properties. It had been stated that the suit temple was in possession of lands granted by former Rulers in 1802 as 'Devadayam Maniam'. It was registered in the names of the members of Valliammal's family. The suit temple owned 39 cents of dry lands in S.No.13/1 and S.No.13/3. It was also stated that rental income was received from the stalls adjacent to the temple. It was stated that the temple is a popular 'Prarthanai' temple. The people worship the deity of “Arulmighu Pandi Muneeswarar” and offer 'thattu kaanikkai' to the Poosaris. There was no ticket system, but the hereditary trustees directly receive money from the devotees. They compel the devotees to give money for coconut, fruit abishegam and garlanding the deity and for such other expenses. It was alleged that they extract money from the devotees. It was stated that the defendants are ready to https://www.mhc.tn.gov.in/judis 15 sanction Paditharam expenses as prescribed under Section 58 of the Tamil Nadu Hindu Religious and Endowments Act, 1959.
16.It was further stated in the written statement that the plaintiffs can give a proposal for Paditharam expenses under Section 58 of the Tamil Nadu Hindu Religious and Endowments Act, 1959 and obtain approval from the defendants. It had been stated that in accordance to the order of the Deputy Commissioner, in O.A.No.77/1980, dated 08.05.1981, the plaintiffs have received their remuneration and Paditharam from the hundial income. This order was set aside by the Commissioner, in SMR No.12/92, dated 30.09.1981. The Commissioner initiated suo motu revision and this was challenged in W.P.No.13 of 1993. The said writ petition was disposed of on 30.09.1999 observing that the Commissioner is entitled to proceed with suo motu as and when the interest of public requires such action and as and when the conditions imposed in the order dated 08.05.1981 are violated and when there are change of circumstance in the affairs of the temple. https://www.mhc.tn.gov.in/judis 16
17.It was stated that the Commissioner initiated suo motu revision only in accordance with the direction of the High Court. It was stated that in this very suit, the plaintiffs had filed I.A.No. 195 of 2000 for an order of interim injunction. That application was dismissed on 04.01.2001. Then the plaintiffs filed C.M.A.No. 265 of 2001 before the High Court and by order dated 12.03.2001, the High Court directed the trial Court to dispose of the suit within three months. It was stated that the order dated 24.03.2000 of the Commissioner is still in force. It was based on documentary and oral evidence and was in accordance with the provisions of the Act. It was stated that the plaintiffs are entitled to get salary after getting necessary approval. However, they are not entitled to get a share in the hundial income. It was stated that the suit temple is also in possession of lands. It is a public temple. It was stated in the order dated 05.09.1935 that the enjoyment of maniyam lands was in lieu of pooja being performed. It was stated that the order of the Deputy Commissioner was not based on records. It was stated that under Section 63 of the Act, the Deputy Commissioner / Joint Commissioner has got jurisdiction to decide whether any person is entitled by custom or otherwise to any honour, emoluments or https://www.mhc.tn.gov.in/judis 17 perquisite in any religious institution. It was stated that the plaintiffs have not proved that they were entitled to a share in the hundial income by custom or otherwise. It was stated that from 1964, there has been persistent disputes among the plaintiffs and other Murai pooasaris regarding performing of pooja services in part and over the shares of the income. Their benefit of a share in hundial income commenced only from the order passed by the Deputy Commissioner, in O.A.No.77/1980. It was stated that the entire income from the hundial are contributions made by the devotees to the deity and consequently, it shall be accounted for only in the name of the temple. It was therefore, stated that the suit should be dismissed.
18.On the basis of the above pleadings, the learned Subordinate Judge, framed the following issues for trial:
“1)Whether the order passed by the first defendant / Commissioner, HR & CE Department, is liable to be interfered with?
2)To what other reliefs, the plaintiffs are entitled?” https://www.mhc.tn.gov.in/judis 18
19.During trial, the third plaintiff, Sivaji Poosari, was examined as PW-1. The defendants examined Krishnabhavani official of the However, & CE Department as DW-1. The plaintiffs marked Ex-A1 to Ex-A39. The order in O.A.No.459 of 1933 was marked as Ex-A1. The proceedings of the Commissioner, HR & CE Department, dated 02.11.1972 was marked as Ex-A2. The properties of the temple and the register of the temple were marked as Ex-A3 and Ex-A4. The vouchers were marked as Ex-A5 to Ex-A25. The passbook of the temple was marked as Ex-A26. The order in O.A.No.77/1980 was marked as Ex-A27. The order in SMR No.12 of 1992 by the first defendant, dated 24.03.2000 was marked as Ex-A29. The register of the temple were marked as Ex-A35 to Ex-A37 and another register of the temple was marked as Ex-A38. The defendants marked Ex-B1 to Ex-B5. These included the Hundial register as Ex-B1 to Ex-B4 and another register as Ex-B5.
20.The learned Subordinate Judge considered Ex-A1, which is the order categorizing the temple as excepted temple. It was then observed that from 1981, in accordance with the order of https://www.mhc.tn.gov.in/judis 19 the Deputy Commissioner in O.A.No. 77 of 1980, the trustees and the Deputy Commissioner were getting one half share from the hundial income. This income was utilised by the trustees / poosaris as their salary and also spent towards expenses for pooja materials. The vouchers for such receipts of amount had been produced as Ex-A5 to Ex-A25. The bank passbook had been produced as Ex-A26. It was also observed that the Deputy Commissioner had fixed one half share income from the hundial income and had imposed conditions, namely, that the plaintiffs should do the service properly and faithfully and that they should also bear the expenses of Paditharam like, coconut, oil for lamp and abishekam, etc. The order of the Deputy Commissioner had been marked as Ex-A27.
21.The order in W.P.No.13 of 1993, dated 30.09.1999, was marked as Ex-A28. In that order, three conditions were given under which the order of the Deputy Commissioner can be revised by the Commissioner. The conditions were, (i) whenever the interest of the public requires such action and (ii) when the conditions imposed in the order dated 08.05.1981 are violated and (iii) when there is change of circumstances. The order of the https://www.mhc.tn.gov.in/judis 20 Commissioner, which was under challenge had been marked as Ex-A29. Under Section 69(2) of the Tamil Nadu Hindu Religious and Endowments Act, 1959, any order passed by the Deputy Commissioner can only be revised by the Commissioner suo motu and he also had the power to call for records for examination. However, it was held by the learned Principal Subordinate Judge that in the circumstances of the case, Ex-A27 had been cancelled and set aside by the Commissioner, which was not permissible under Section 69(2) of the Act.
22.It was also found that during evidence, DW-1 admitted that the general public have not given any complaint against the performance and work of the plaintiffs. It was also stated that pooja was performed on all three occasions in the day. There was also place in the temple for the devotees to rest. It was also stated that for the daily poojas, the HR & CE Department had not contributed any amount towards expenses. The learned Principal Subordinate Judge, therefore, found that there were no violations of the conditions prescribed in the order in O.A.No.77 of 1980, and that there was no necessity to set aside the order or cancel it. It was also found that the three conditions prescribed https://www.mhc.tn.gov.in/judis 21 by the High Court in W.P.No.13 of 1993 had not arisen to necessitate the Commissioner / first defendant to pass the order challenged.
23.It was observed that the reasons given for suo motu revision far exceeded the stipulations imposed in W.P.No.13 of 1993. It was also found that on two earlier occasions, the suo motu revision had been dropped by the Commissioner himself on the ground that it was against the spirt of the order in W.P.No.13 of 1993. It was also found that, if the order of the Deputy Commissioner was against the rules, then, no reason had been given as to why on two earlier occasions, suo moto revision had been dropped. The learned Principal Subordinate Judge also considered Ex-B1to Ex-B4, the registers relating to the income of the temple. The commissioner had also examined the said registers and had found that the income was Rs.25,191.90 on 06.05.2002 and Rs,38,356.45 on 13.05.2002. He had therefore, stated that the income of the temple increased day-by-day and had held granting 50% of the hundial income would affect the income of the temple.
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24. With relation to the above finding, the learned Judge considered the arguments of the plaintiffs who stated that Ex-B1 to Ex-B4 related to the income in the month of May and that in the month May, being a holiday month, the number of devotees would increase and the further contention that the defendants had produced documents to their choice to show increase in the income. The learned Sub Judge observed that it was the duty of the HR & CE Department to bring about a standard procedure for the expenses for performing pooja. DW-1 had also accepted that the department does not bear any expenses towards Paditharam. Holding as above, the learned Principal Subordinate Judge set aside the order of the first defendant / Commissioner and decreed the suit.
A.S.No.801 of 2002:-
25.Challenging that judgment, the first and second defendants had filed the present first appeal.
26.Pending appeal, as stated above, the 1st and 5th respondents died and their legal heirs were brought on record. Similarly, the second respondent had attained the age of majority and his guardian was discharged.
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27.The appellants filed C.M.P.(MD)No.380 of 2016 under Order 41 Rule 27 of CPC to receive as additional evidence, the statement of income and expenditure for the Fasli, 1419-24 and the charge memo issued by the Commissioner, dated 21.03.2015.
28.The appellants also filed C.M.P.(MD)No.9367 of 2018 under Order 41 Rule 27 of CPC to receive as additional evidence, 12 additional documents. Among them, the order passed in W.A.No.487 of 1969, order passed in C.M.P.No.181 1980 in S.A.No.1397 of 1978, the copy of the petition in O.A.No.77 of 1980 are documents prior to the institution of the suit. The 12th document is a true extract of accounts of the temple showing income and expenditure under various heads. The other documents are subsequent to the institution of the suit, which included the charge memo, dated 02.03.2016, order of interim suspension of a Trustee dated 02.03.2016, appointment of fit person dated 02.03.2016, appointment of Executive Officer dated 12.05.2016, order removing trustees dated 13.05.2016, the order in W.P(MD)No.10257 of 2016, dated 15.07.2016, the judgment in W.A.No.1133 of 2016, dated 28.03.2017 and the order in W.P(MD)No.5262 of 2016, dated 14.06.2018. https://www.mhc.tn.gov.in/judis 24
29.Heard arguments advanced by Mr.V.R.Shanmuganathan, learned Special Government Pleader (HR & CE) appearing for the appellants, Mr.V.Sitharanjan Das, learned Counsel for R2, R4, R6 and R15, Ms.J.Anandavalli, learned Counsel for R8 to R10 and R12 to R14, Mr.D.Jayam, learned Counsel for R3 and Mr.R.G.Shankar Ganesh, learned Counsel for the R11. There was no appearance on behalf of R7.
30.The points that arise for determination in this appeal are as follows:
“1)Whether the plaintiffs have a right to claim beneficial interest in the income of the suit temple as remuneration for serviced rendered by them and for 'Paditharam' expenses?
2)Whether the plaintiffs have a right to claim a share in the Hundial income of the suit temple as remuneration and towards 'Paditharam' expenses?
3)Whether the HR & CE Department is contributing any money towards daily expenses for the daily poojas conducted in the suit temple?
4)Whether the order of the Deputy Commissioner in O.A.No.77 of 1980 is an order intra vires the provisions of Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959?
5)Whether the suo motu revision in SMR No.12 of 1992 and the order dated 24.03.2000 by the Commissioner is based on the conditions stipulated in the order of the High Court in W.P.No.13 of 1993?
6)Whether the Commissioner, HR & CE Department, had exceeded his powers, while adjudicating SMR No.12 of 1992 in his order, dated 24.03.2000?
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7)Whether the order of the Commissioner, HR & CE Department, in SMR No.12 of 1992, dated 24.03.2000 is legally sustainable?
8)Whether CMP(MD)No.380 of 2016 is to be allowed and if so, what is the procedure to be followed for taking on record the documents filed therein?
9)Whether CMP(MD)No.9367 of 2018 is to be allowed and if so, what is the procedure to be followed for taking on record the documents filed therein?
10)Whether the judgment and decree in O.S.No.413 of 2000, dated 28.06.2002 requires interference?” The above points can be encompassed in the following two main issues :-
(i) The right of the plaintiffs to seek the share in the beneficial income of the temple;
(ii) The sustenance of the order of the Commissioner HR & CE dated 24.3.2000.
Points Discussed:-
31. Arulmigu Pandi Muneeswarar Temple is situated in Melamadai Village, Madurai North Taluk, Madurai. Ex-A1 is an order in O.A.No.459 of 1933, passed by H.R.E. Board, dated 05.09.1935. Even before setting out the history of the temple, it https://www.mhc.tn.gov.in/judis 26 must be pointed out that the Board was conscious of the fact, that even as early as in the year 1935, the temple had been in existence for more than 100 years and there was a duty cast upon the Board to preserve the cultural tradition surrounding the temple. A reading of the order shows that the HRE Board was deeply concerned and was very careful to respect the sanctity attached to the temple in view of the service rendered by the hereditary poosaris. The order was not confrontational in nature. The order tried to give a solution for the issues raised before the Board. It was not an assertion of the supremacy of the Board to supervise the temple administration. Rather, it was an acceptance of the fact that the temple should have its own space and independence to administer affairs by the Poosaris themselves.
32. Arulmigu Pandi Muneeswarar Temple at Melamadai, Madurai North Taluk, was established prior to 1800 AD. As on date, it is more than 200 years old. It can survive for the next 200 years and more only when the authorities in control as established by the Government understand and respect the sanctity of the temple, the poojas done to the deity and https://www.mhc.tn.gov.in/judis 27 incidentally and very importantly, the poosaris themselves. There should be a genuine interest in educating and guiding the Poosaris through correct pathway rather than pressurising and criticizing them and subjecting them to the whims and fancies of the Administrators of the HR & CE Department. One large extended family is performing poojas for centuries now and at every turn of event, they are forced to the benevolence of the administration. The interference by the administration would only work to the detriment of the devotees, who throng to the temple and look upon the poosaris as a medium to address their problems. Village temples, like, the Arulmigu Pandi Muneeswarar Temple must be viewed with eyes of benevolence, understanding and faith.
33.Prior to 1800, Pandian Kodangi was the constituted trustee and since his death, the trusteeship has always been vested in his family and of his successor, the family of Periasamy. On the death of Periasamy, his eldest son succeeded to the trusteeship. It is an admitted fact and also averred in Ex-A1 that the members of the family have always been hereditary trustees. The Jamabandi account extract for Fasli 1212(1802) describes https://www.mhc.tn.gov.in/judis 28 Periyannan as performing pooja to the temple and also as being in possession of 'Devadayam Maniam' lands. The extract of “olugu” account in respect of the temple for Fasli 1215 (1805) shows that the temple Inam was registered in the name of Periyannan. The extract from the Inam Register, dated 12.10.1863, points to the names of Periyannan for Fasli 1212 (1802), Periannan Kodangi in Fasli-1217 (1807) and Veeramalayandi (son) in Fasli 1218 (1808). The Inam statement by the Devadayam Maniam was confirmed in the name of Pandian and it had been recorded in Ex-A1 that he renders poojas every Thursday and Friday. The Inam statement of the Pandian refers to the hereditary enjoyment of the Manibam and the poojas performed every Friday from and out of the income of Manibam lands. The “Inavazhi Kanakku” for Fasli 1329 (1919) for the village, in which the temple is situated shows that the Manibam is registered in the name of Periyasamy Kodangi. Patta was issued for Fasli 1329 (1919) to Periyasamy Kodangi as poosari of the temple.
34.In the judgment in A.S.No.1 of 1925, on the file of the I Additional Subordinate Court, Madurai, it had been observed https://www.mhc.tn.gov.in/judis 29 that the temple was a public temple. The trusteeship was with the members of the family through succession to the office of poosari and not according to the law of primogeniture. Considering all the above facts / documents, the H.R.E Board in the year 1933, in Ex-A1, which is the order in O.A.No.459 of 1933, dated 05.09.1935, held as follows:
“It is clear from the documentary evidence adduced in this case that for successive generations the members of Valliammal's family have been in management of the temple and its properties. They have in effect constituted themselves as trustees of the temple and the succession to the trusteeship has been hereditary and restricted to the members of this family. The temple itself is not in receipt of any tasdik nor has it been at any time under the control of the Government or Committees. We therefore hold that the temple is an excepted one. We do not consider that there is any necessity for framing a scheme at present. The trustee or trustees will be directed to maintain proper accounts and submit the same periodically for the scrutiny of the Board and otherwise administer the temple affairs without giving room to any complaint failing which proceedings for settlement of a scheme will be started.” The temple was declared as excepted temple. In an excepted temple, the hereditary trustees have a beneficial interest in the income of the institution.
35.Before proceeding further, C.M.P.(MD)No.380 of 2016 and C.M.P.(MD)No.9367 of 2018 will have to be considered. https://www.mhc.tn.gov.in/judis 30 Both these petitions have been filed under Order 41 Rule 27 of CPC to receive documents as additional evidence in the appeal. Both the petitions have filed by the appellants.
36.In C.M.P.(MD)No.380 of 2016, the appellants seek to file the proceedings of Commissioner, HR & CE Department, Chennai, in Na.Ka.No.6223/2015/A2, dated 21.03.2005 and the statement of income and expenditure in respect of the temple for the Fasli 1419-1424 (2009-2014) and to receive the same in evidence. In the affidavit filed in support of the said petition, the Joint Commissioner, HR & CE Department, Madurai, stated that the first document, namely, the proceedings of the Commissioner, HR & CE Department, relating to framing of charges under Section 53 of the Tamil Nadu Hindu Religious and Endowments Act, 1959. The second document was with respect to the income and expenditure statement and it was stated that the said document is necessary, since the income of the temple had increased and consequently, granting 50% of the hundial income to the poosaris cannot be justified.
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37. In C.M.P.(MD)No.9367 of 2017 filed under Order 41 Rule 27 of CPC, the appellants had sought permission to file 12 documents. The first three documents are, order in W.A.No.487 of 1969, order in C.M.P.No.181 of 1980 in S.A.No.1397 of 1978 and the copy of the petition in O.A.No.77 of 1980. The 4th to 8th documents related to charge memos issued by the Secretary of the Government, Tourism, Culture and Religious Endowments Department, order of interim suspension of Trustees, appointment of Fit Person, appointment of Executive Officer and the order directing the removal of Trustees. The 9th to 11th documents are orders passed by the High Court in W.P.(MD)No. 10257 of 2016, judgment in W.A.(MD)No.1133 of 2016 and batch and order in W.P.(MD)No.5262 of 2016. The 12 th document is a true extract of the accounts of the temple showing the income and expenditure under various heads.
38.In the affidavit filed in support of the said petition, the Joint Commissioner, HR & CE Department, Madurai had stated that in relation to the allegations against the poosaris charges had been framed under Section 53(4) of the Tamil Nadu Hindu Religious and Endowments Act, 1959 and the Government https://www.mhc.tn.gov.in/judis 32 Orders were passed suspending the trustees, appointing Fit Person and appointing Executive Officer and removing the Trustees. Pursuant to such Government Orders, writ petitions and writ appeal have been filed and judgment of this Court in relation to the Government Orders are sought to be produced as document Nos.4 to 11. It was also stated that the extract of the accounts of the temple under various heads for the years, 2015-16 to 2017-18 are also be considered as being relevant for the disposal of the first appeal.
39.In both the petitions, separate counters have been filed by the respondents 2, 4, 6 and 15 and also by the respondents 8 to 10 and 12 to 14. In both the counter affidavits, they have stated that the issue relating to charges being framed and suspension and removal of trustees, and appointment of Fit Person / Executive Officer are not germane to decide the issue in this appeal. It had also been stated that the accounts which have been produced in both the petitions are also not admissible in evidence. It was stated that these documents are subsequent to the institution of the suit and also subsequent to the filing of the appeal and consequently they cannot be taken into consideration.
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40.I have carefully considered the submissions made with respect to both miscellaneous petitions. Order 41 Rule 27 of CPC is as follows:
"27. Production of additional evidence in Appellate Court:-
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if—
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
41.Insofar as the 1st document in C.M.P.(MD)No.380 of 2016 and the 4th to 11th documents in C.M.P.(MD)No.3967 of https://www.mhc.tn.gov.in/judis 34 2018 are concerned, I hold that by introduction of these documents, the appellants are indirectly attempting to draw prejudice against the respondents and are directly attempting to cause aspersions on the conduct of the respondents as poosaris / trustees. If the poosaris / trustees had acted in violation of any provisions of law, then a part of the blame must also be mulcted the HR & CE Department for not having properly sensitizing the poojaris as to the nature of the duties, which they are discharging and the sanctity of the said duties. It must be kept in mind that the temple is a village temple, and the Poosaris are rustics and a duty was always cast on the HR & CE Board to properly guide them and correct behavioral attitudes. The HR & CE Department officials, appears to be totally detached with reality. They sit in the comfort of conditioned room and judge the poojaris who give their sweat and blood for the benefit of devotees, who seek care and comfort from the presiding deity in the temple.
42. Records reveal that a Fit Person and an Executive Officer, also exercise administrative control. If still the HR & CE Department claims that the poosaris are not reliable then it https://www.mhc.tn.gov.in/judis 35 would only imply that the HR & CE officials themselves have encouraged such activities. Therefore, I hold that the 1st document in C.M.P.(MD).No. 380 of 2016 and the 4th to 11th documents in C.M.P.(MD).No. 9367 of 2018 have been filed only to prejudice the mind of the Court and consequently, without any hesitation I hold that the said documents, cannot be taken in as additional evidence.
43.Insofar as the 2nd document in C.M.P.(MD)No.380 of 2016 and the 12th document in C.M.P.(MD)No.9367 of 2018 are concerned, I again hold that they are self serving documents and they cannot be relied in a first appeal of the year 2002, which relates back to a suit of the year 2000. Both these doubts are rejected, as the issue whether the Poosaris have a claim beneficial interest in the income of the temple will have to be decided, as a concept, and not in relation to the earnings of the temple.
44.With respect to the 1st, 2nd and 3rd documents filed along with C.M.P.(MD)No.9367 of 2018 are concerned, it is seen that a petition under Order 41 Rule 27 of the CPC is not required for https://www.mhc.tn.gov.in/judis 36 the Court to examine these documents. These documents are directly related to the factual aspects and proceedings of the temple leading to the institution of the suit and the judgment under appeal. This Court has a right to examine the 1st and 2nd documents which are judgments of this Court and also the petition in O.A.No.77 of 1980 filed under Section 63(e) of the Act. I therefore hold that both C.M.P.(MD).No. 380 of 2016 and C.M.P.(MD).No. 9367 of 2018 are to be dismissed. But since the 1st, 2nd and 3rd documents are part of the present judicial proceedings, as a matter of right and as a step to enlighten the Court of facts, the said three documents will be discussed in the course of this judgment. Dismissal of Civil Miscellaneous Petitions would not preclude the Court to examine those documents, since they are part and parcel of the judicial records of this case. For the reason stated above, both the Civil Miscellaneous Petitions are dismissed but as stated above, the Court shall discuss the 1st, 2nd and 3rd documents filed along with C.M.P.(MD).No. 9367 of 2018.
45.Coming back to the facts, the next judicial proceedings initiated by the hereditary trustees / poosaris of the temple were https://www.mhc.tn.gov.in/judis 37 W.P.Nos. 1642 and 1643 of 1964. These writ petitions were filed by Periyannan @ Mahamuni, hereditary trustee of the temple. Necessitating to file the writ petitions were that the temple began to attract large crowds on Fridays and worshippers made offerings to the deity in the hundial. On 23.09.1964, the Assistant Commissioner, HR & CE Board had issued a direction that the Executive Officer of the adjacent temple, Sri Kalamega Perumal Temple, Thirumohur, Madurai should supervise the arrangements during every Friday and submit a report. The Inspector, HR& CE board sealed the hundial box. Then W.P.Nos. 1642 and 1643 of 1964 had been filed challenging that act. Hon'ble Mr. Justice Ramakrishnan observed that there was excess execution of the order on the part of the subordinate authority, like the Inspector of the Board in sealing the hundial boxes for a long period thereby, preventing the hereditary trustees from making use of the collection for legitimate purposes of the temple. The learned Judge then suggested that the department can consider providing a double lock for the hundial box, so that it could be opened and the contents counted in the presence of either the Executive Officer or any person authorised by him.
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46.Periyannan @ Mahamuni filed W.A.No.474 of 1967. A Division Bench of this Court was of the view that the orders of the learned Judge should not be interfered with, but, opined that the order of the Assistant Commissioner cannot be construed as authorising the Inspector to seal the hundial box. After the disposal of the writ appeal, on 09.09.1969, the Assistant Commissioner directed that two hundial boxes be set up in the temple and they should be sealed by the Inspector. Complaining that the seal of the hundial box deprived him of the legitimate to use of the collection for day-by-day expenses, Periyannan @ Mahamuni filed W.P.No.2975 of 1969. This came up for consideration before Hon'ble Mr. Justice Ramaprasada Rao. It was held that though the Commissioner had the power of general superintendence, such power would not include passing of orders, to virtually dispossess the hereditary trustees and keep the collection in their custody and make the endowment suffer. It was observed that funds in the hundial must be made available to Periyannan @ Mahamuni to enable him to function as hereditary trustees and poosari. A Writ appeal was filed in W.A.No.487 of 1969. This came up for consideration before the https://www.mhc.tn.gov.in/judis 39 Division Bench, consisting Hon'ble Mr. Justice Kailasam and Hon'ble Mr. Justice Varadarajan. The judgment in this writ appeal was the 1st document referred in C.M.P.(MD)No.9367 of 2018 and which document is part of the Court records.
47.In the said Writ Appeal, C.M.P.No.14497 of 1969 was filed and the Division Bench passed an order directing the Executive Trustee, pending disposal of the Writ Appeal, to break the seal of the hundial every Saturday morning and to allow the hereditary trustees to take the collection after counting the amount of collection. Thereafter, final orders were passed in the W.A.No.487 of 1969. By judgment dated 27.04.1974, it was held as follows:
“There have been no charges of any misuse of the collections. There can be no doubt that the Board has got general power of Superintendence and control over the religious institutions, but that would not mean that it could seal the hundial boxes and deprive the trustees of the income, which would result in the trustees being incapable of discharging their duties like performing poojas etc. The order therefore directing sealing of the hundial boxes cannot be stand and will have to be quashed. But the Religious Endowments Board has a duty to supervise the management of the temple. We feel that in the circumstances the interim order made by the Bench of this Court in C.M.P.No.14497 of 1969 generally meets the requirements of the situation. We direct that the hundial boxes that are kept by the Department will each have two locks, one put by the Department and the other by the trustees and the hundial boxes https://www.mhc.tn.gov.in/judis 40 will be opened every Saturday between 11.00 A.M. And 01.00 P.M. in the presence of both parties and the amount of collections noted and handed over to the hereditary trustee. The Writ appeal is ordered accordingly. There will no order as to costs.” This Judgment is very significant. The Division Bench had recorded that there was no misuse of the collections and that the HR& CE Board can only supervise the management of the temple but cannot deprive the trustees of the income, thereby making them in capable of discharging their duties like performing poojas, etc.
48.In the meanwhile, O.S.No.383 of 1975 came to be filed before the Principal District Munsif Court, Madurai Town. This suit was the result of disputes among the hereditary trustees / poojaris relating to arrangements for establishing a definite cycle for the various branches to do poojas / murai and also with respect to the sharing of the hundial collection and also for the performance of the annual Chithirai festival for a period of 10 days in that month. In the decree in the said suit, the learned Principal District Munsif, established turns once in 10 weeks by cycles commencing from the midnight of every Thursday. The cycles were rotated among the plaintiffs and the contesting https://www.mhc.tn.gov.in/judis 41 defendants even with respect to the hundial collection. It was decreed as follows:
“13.That the above said murai holders are entitled to get all income including hundial collections during their pura murai subject to the result in W.A.No.487 of 1969 on the file of the High Court for hundial collection and the said murai holder incurs all expenses necessary for temple in his particular week and he is also liable for common items of expenditure if any, in respect of the temple.” This decree was passed pursuant to a compromise presented in I.A.No.1040 of 1973. The decree was dated 30.06.1973.
49.The next judicial order directly touching upon the issue under consideration was an order passed in C.M.P.No.181 of 1980 in S.A.No.1397 of 19678, dated 02.04.1980. This order was the 2nd document in C.M.P.(MD)No.9367 of 1978. This Court has to refer to the said order, as it is directly related to the sequence of events and orders passed relating to the share of the income of the hundial. C.M.P.No.181 of 1980 in S.A.No.1397 of 1978 was filed by Periyannan @ Mahamuni seeking a direction to enable him to have a 2/3rd share of all the collections from the hundial towards the share of his income in respect of the temple. Pending disposal of S.A.No.1397 of 1978, which had been filed https://www.mhc.tn.gov.in/judis 42 against the decree in A.S.No.23 of 1976 on the file of the Subordinate Court, Madurai, which had been preferred against the judgment and decree in O.S.No.578 of 1974 on the file of the District Munsif Court, Melur, C.M.P.No. 181 of 1980 was filed. This petition came up for consideration before Hon'ble Mr. Justice Sathyadev, on 02.04.1980 and the Court made the following order:
“In both the Courts below a consistent stand has been take by the State that the suit is hit by Section 108 of Tamil Nadu Act 22 of 1959 and the proper course open to the appellant is to institute proceedings under Section 63 of the Act for deciding as to whether the appellant / petitioner will be entitled to perquisites. In this appeal, both appellant and the first respondent herein have come forward to claim a share in the hundial realisation. Now that the State has come forward to state that the claim has to be and can be decided in proceedings instituted under Section 63 of the Act, it open to the appellant and the first respondent herein if they so desire to file necessary petitions before the concerned Deputy Commissioner, who shall decide the matter within four months from the date of the filing of the applications, and thereafter, the petitioner may move this Court for suitable directions.”
50.This order was the direct cause of action for filing O.A.No.77 of 1980 under Section 63(e) of the Tamil Nadu Hindu Religious and Endowments Act, 1959 before the Deputy Commissioner, HR & CE Department, Madurai, by P.Periyannan @ Mahamuni, P.Sangan, P.Mariammal, P.Kodangi and https://www.mhc.tn.gov.in/judis 43 P.Pandian. The order passed in O.A.No.77 of 1980 was set aside in suo motu proceedings initiated by the Commissioner and that order of the Commissioner was challenged in O.S.No.413 of 2000 on the file of the Subordinate Court, Madurai. The present first appeal has been filed challenging the judgment and decree in O.S.No.413 of 2000. Consequently, the petition filed in O.A.No.77 of 1980 is directly part of the records of the present first appeal and it was the 3rd document in C.M.P.(MD)No.9367 of 2016 and though the said petition has been dismissed, this Court has a right to examine the said document.
51.In the petition in O.A.No. 77 of 1980, the petitioners claimed that they are hereditary Poosaris / trustees. The temple is an excepted temple. The petitioners claimed that their position as hereditary trustees and as poosaris also, entailed them to avail beneficial interest in the income of the temple. They also claimed that their position as hereditary trustees/ Poosaris cannot be equated with that of hereditary trustees of other temples, whose rights would be confined to right of management without any beneficial interest. The hereditary trustees in other temples are also not Poosaris. They further https://www.mhc.tn.gov.in/judis 44 stated that the main source of income for the temple is the cash 'Kanikkai' offered by the devotees in the hundial placed in the temple. They stated that they are not paid any remuneration for the pooja services rendered by them. It was stated that there are 6 hereditary trustees / poosaris. The right of pooja murai had been divided into 10 shares. It was stated that the Kaanikkai in 'thattu' is received only during the said pooja murai and there is no other income for their livelihood during the other days. They admitted in the petition that there were disputes among themselves about the sharing of the murai. They also stated that a compromise decree was effected in O.S.No.383 of 1977, on the file of the District Munsif Court, Madurai Town, which compromise had been dismissed above. They also referred to the judgment of the Division Bench of this Court in W.A.No.487 of 1969, dated 27.04.1974, whereby, the hundial boxes, which are kept in the temple are sealed by the department with two locks and are opened every Saturday, between 11.00 am and 01.00 pm in the presence of all parties. The hundial collection will then be handed over to the hereditary trustees. It was stated that the said arrangements is continuing.
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52. One of the respondents in O.A.No. 77 of 1980, P.Veeramani, had filed O.S.No.578 of 1974 before the District Munsif Court, Melur, seeking a direction to hand over the custody of the hundial of the temple to him during the weeks when he conducted pooja murai. The petitioners had contended that none of the parties can claim personal claim over the hundial, because the same belongs to the temple. As referred earlier, O.S.No.578 of 1974 was dismissed and the appeal in A.S.No.23 of 1977 on the file of the Subordinate Court, Madurai Town, was also dismissed. P.Veeramalai had then filed S.A.No. 1397 of 1978, in which, C.M.P.No.181 of 1980 had been filed, wherein, Hon'ble Mr. Justice Sathiadev had ordered that the claims can be decided in proceedings instituted under Section 63 of the Act. Interestingly in the petition in O.A.No.77 of 1980, the petitioners had drawn a parallel to similar arrangements of payment of income from the temple to hereditary trustees / poosaris in the other temples. They cited as examples the arrangements made and the orders passed by the Commissioner HR & CE in appeals in A.No.123 of 1949 (Chella Subramania Gurukkal vs H.P.E. Board) and in A.No.55 of 1943 (Jakkayya Muthuvel Asara Archaka of the temple vs HRE https://www.mhc.tn.gov.in/judis 46 Board) and in A.No.285 of 1945 (Sannadhiraja Subba Road and another vs Manthena Suryanarayanan Raju and 5 others). It was stated that the HR & CE Board itself had made similar arrangements of grant of income from portions of lands belonging to Sri Koodalaghar Temple, Melagudulur in Periakulam Taluk. Similar arrangements were also made with respect to Sri Malayamman Temple, Kodumudi, Erode. The petitioners, therefore, sought a direction that they were entitled to an 2/3rd share of the receipts from the hundial income and from the buildings and other sources as their remuneration for rendering services as poojaris and also for meeting the costs of the paditharam of the temple.
53.This application came up for consideration before the Deputy Commissioner, HR & CE Department, Madurai. The Order passed dated 08.05.1981 had been marked as Ex-A27. The Deputy Commissioner, after a very detailed discussion on the judicial pronouncement made with respect to similar issue in other temples and also on examining similar arrangements made in other temple and also orders of similar nature passed by the Commissioner, HR & CE Department, observed as follows:
https://www.mhc.tn.gov.in/judis 47 "It is by now well settled by usage that the petitioners and respondent herein are the hereditary trustees-poojaris of the temple in question and there is no dispute with regard to this. It is also not in dispute that they appropriate the offerings made by the worshipping public in "Thattu" at the time of their pooja service and the petitioners are not padi any monthly salary at present. The expenses of padidthram such as coconuts, oampher oil for lamp and Thaila Kappu are now met from the funds of the temple. The cost of which come to Rs.2,00/- as per the receipts and charges statement for Fasli 1388."
54.It was also observed as follows:
"It is also a settled matter that the petitioners and respondent are the hereditary trustee-cum-poojaris and that they are performing the service for nearly more than 60 years and that the right of performing the pooja service had always been vested with the family of the petitioners and respondent and their forefathers. There is no dispute with regard to this subject and as such it is unnecessary to go into in this any further."
55.It was further also observed as follows:
"The petitioners claim is that their right is not only a bare right to admnister the affairs of the temple in question but is mingled with beneficial interest and right. Therefore, it is to be decided whether the petitioners have got any beneficial interest in the income of the temple."
56.It was further also observed as follows:
"It is evident from the facts and details narrated above that there has been a quarrel from among the poojari trustees in sharing the income. On a perusal of all the exhibits filed herein https://www.mhc.tn.gov.in/judis 48 on behalf of the petitioner, the relative merits of every exhibits show that the petitioners and respondent have been discharging their duties and also administering the affairs of the temple with beneficial interest."
57.It was further observed as follows:
"There is no contra evidence. There is also nothing on record to show that they are no entitled to beneficial rights and as such I have no other alternative except to come to the conclusion that the petitioner and respondents do hold that office of the Hereditary Trusteeship with beneficial interest. The office of Hereditary Trusteeship even when no perquisites or emoluments are attached is a legally protected one. Unlawful denial or deprivation or interference with the proper exercise of right is also not proper. Hence, the instant case is one with the beneficial right which had been enjoyed by the parties uninterruptedly and without any question from a very long. Therefore, the next question is what the quantum of the share that may be fixed. The counsel for the petitioners contended that there are ten share holders in the pooja right and that each share sets roughly an income of Rs.145/- only per month if two third of the income is fixed as remuneration. This arguments of the counsel sounds reasonable. Having regard to the various decisions stressing the need to fix a definite remunaration out of the income of the temple is the service holders having beneficial interest in the income of the temple and also having regard to the probable increase that may come to ensuing Fasli. I am inclined to fix one half of the income by way of hundial (cash only) as the remunaration of the poojaries instead of the monthly salary or time-scale of pay. Subject to the condition that the petitioners would be entitled to this share so long as they do their service properly, faithfully and also subject tot eh further condition that the expenses of padithram like coconuts, oil for lamp, oil for abishekam etc., shall be met by the poojaries personally."
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58.This conclusion of the Deputy Commissioner, HR & CE Department, had been vehemently attacked by the learned Special Government Pleader by stating that the final observations were not even pleaded by the petitioners and that the arrangements of granting one half of the income was fixed at a time when such one half share would come to Rs.145/- per month only. I have to voice disagreement with the arguments advanced by the learned Special Government Pleader on this aspect. The observations or conclusions reached by the Deputy Commissioner need not be pleaded, but in judicial or even in quasi-judicial pronouncements, the reasons for the decisions made will have to be given. The reasonings of the Deputy Commissioner was that unlawful denial or deprivation of income of the Poosaris was totally unjustified and was an interference with the rights of the Poosaris. It had also been observed that the Board had categorised the temple as an excepted temple and the hereditary trustees are entitled for beneficial interest in the income of the temple. It had been observed that such a finding is legally protected. Criticism with respect to fixing one half share https://www.mhc.tn.gov.in/judis 50 of the hundial income on the basis of the income prevailing at that time deserves deeper consideration. That share of one half of the income would be just was based on the income of the temple prevailing at that point of time. However as a concept share in the income will have to be granted. The ratio of the share will depend on the actual income and expenditure.
59. Ex-A28, the order in W.P.No.13 of 1993, dated 30.09.1999 requires further analysis. This writ petition was filed by P.Sangan, P.Mariammal and P.Pandiyan against the Commissioner, HR & CE Department seeking a writ of Certiorari to call for the records of the respondent relating to the notice in S.M.R.No.12/92, dated 17.11.1992 and quash the same. The Commissioner had initiated suo motu revision of the order dated 08.05.1981, extracted above in O.A.No.77 of 1980 by the Deputy Commissioner, HR & CE Department, Madurai under Section 69(2) of the Act. It must be mentioned that the Commissioner, HR & CE Department, had initiated similar suo motu revision, which Ex-A27, on 11.10.1981 and had dropped the same. He again initiated proceedings on 06.01.1984 and again dropped the same. He then initiated the third suo motu proceedings on https://www.mhc.tn.gov.in/judis 51 17.11.1992. This suo motu proceeding was challenged in W.P.No.13 of 1993. This writ petition came up for consideration before Hon'ble Mr. Justice P.D.Dinakaran, on 13.09.1999. The entire history of the litigations surrounding the temple was discussed. The learned Judge finally held as follows:
"In fine, the Commissioner is entitled to proceed with the impugned suo motu proceedings (i) as and when the interest of the public relating to the affairs of the respective temple requires such action; (ii) the conditions imposed in the order dated 8.5.1981 are violated and (iii) any change of circumstances in the affairs of the temple requires the revisional authorities to reopen the matter. The petitioners are no doubt entitled to raise all the grounds to substantiate their case before the Commissioner, who shall hear the petitioners and dispose of the case. On merits, without being influenced by the order of this Court, within five months from the date of receipt of a copy of this order. Writ petition is ordered accordingly. No costs."
60.Thereafter, the Commissioner, initiated once again suo motu revision, in SMR No.12/1992 under Section 69(2) of the Act. Section 69(2) of the Tamil Nadu Hindu Religious and Endowments Act, 1959, reads as follows:
"69(2):- Any order passed by one Deputy Commissioner in respect of which no appeal has been preferred within the period specified in sub-section (4) may be revised by the Commissioner suo motu and the Commissioner may call for and examine the records of the proceedings to satisfy himself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed by the Deputy Commissioner in respect of an order passed by the Deputy Commissioner shall be https://www.mhc.tn.gov.in/judis 52 deemed to have been passed by the Commissioner on an appeal preferred to him under sub-section (1)."
61.The Commissioner in the course of his order Ex. A29, dated 24.03.2000, had given the following reasons for initiating suo motu revision.
"1)The income of the temple cannot be directly appropriated towards any expenses without being deposited in the Bank at the first instance.
2)The order of the Deputy Commissioner, Madurai, is not in consonance with Rule 14 of the Rules framed under Section 116(2) (XXiii) of the Act regarding pay and emoluments of the temple servants.
3)Payment of salary from the hundial income is not a regulated one and there is every possibility of variation due to fluctuation in the hundial income.
4)The padithram expenses of the temple shall be, as prescribed under Section 58 of the Act and appropriation of the share from the hundial income towards padithram expenses is against the procedure laid down under the rules."
62. The Commissioner had also narrated the history of the temple and the orders passed by this Court regarding the arrangements and distribution of the income from the hundial. With respect to parallel cases stated in the petition, the Commissioner stated that those cases referred to share of income from the lands granted as inam or derived by the temple. He stated that in none of the above cases, entitlement of the https://www.mhc.tn.gov.in/judis 53 rights of the parties to the establishment in hundial income had been declared.
63.He further observed that the petitioners' right to share in the hundial income flows only from the order of the Deputy Commissioner in O.A.No.77 of 1980 and was not based on prolonged custom and usage. He then stated that under Section 63(e) of the Act, the Deputy Commissioner had got jurisdiction to decide only the question whether any person is entitled by custom or otherwise to any honour, emolument or perquisite. He opined that in the present case, there was no such custom established. He, therefore, observed that the hereditary trustees cannot claim that the right to share the hundial income was an established usage. He therefore set aside the order of the Deputy Commissioner and then held as follows:
"Hence, it is hereby held that the entire income realised from the hundials are contributions made by the devotees to the deity, of the temple in question, and as such it shall be directly accounted for in the name of the temple only. No apportionment of share from the hundial income to anybody is contemplated anywhere under the Act. The order dated 8.5.81 passed in O.A. 77/80 by the Deputy Commissioner is, therefore, hereby set aside."
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64.The order of the Commissioner, HR & CE Department led to the institution of O.S.No.413 of 2000 before the Principal Subordinate Court, Madurai, under Section 70(1) of the Act. As elaborately narrated in the earlier part of the judgment, the suit has decreed and the order of the Commissioner had been set aside. The defendants in the suit, namely, the Commissioner and the Deputy Commissioner, HR & CE Department, have filed the present appeal.
65.Arguments were advanced pointing out the above facts.
66.It is the contention of Mr.V.R.Shanmuganathan, learned Special Government Pleader, that the order of the Commissioner has to be sustained. The learned Special Government Pleader pointed out that the judgment under appeal has to be set aside, since among the reasons given for decreeing the suit was that suo motu revision after a considerable period of time should not have been entertained and particularly should not have been entertained after it was initiated twice earlier and dropped on both occasions.
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67.The learned Special Government Pleader further pointed out that the Commissioner had jurisdiction to invoke Section 69(2) of the Act. The circumstances, which led the Commissioner's action was that there was substantial increase in the income and there was no custom established that the hundial income can be shared by the poosaris and that a practice for convenience beyond the scope of the provisions of the Act cannot be sustained.
68.In this connection, the learned Special Government Pleader relied upon on AIR 1997 SCC 3839 (Sri Jagannath Temple Puri Management Committee represented through its Administrator and another vs. Chintamani Khuntia and others). The Honourable Supreme Court in that case, considered the duties performed by Sevaks, who are temple attendants and examined whether they have a right to get a portion of the offerings made to the deity in the temple and whether such right is a religious right or whether the collecting and getting a share of the offering is a religious rite of the temple.
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69.The Honourable Supreme Court held in the very beginning of the judgment itself as follows:
"Collection and distribution of monies start after the devotees had done their worship and made their offerings to the deity. Offerings of fruit. flower and money are made to the deity by the devotees. This is done as a token of devotion of the pilgrims. But after the worship by the devotees is over, sweeping, collecting and distribution of a portion of offerings to the temple staff are not parts of any religious exercise. The manner of collection and distribution of a portion of the offerings among the temple staff may have a history of long usage but such usage cannot be part of religious practice or a religious right."
70.A careful reading of the said judgment reveals that the Honourable Supreme Court was concerned with the services offered by the temple attendants / sevaks, who commenced their work after the poojas concluded and after the worship by the devotees is over. The sevaks swept the flow and collected and distributed portions of the offerings to the temple staff. This act of the Sevaks in collecting and distributing portions of the offerings, was declared not to be a religious practice. In the present case, we are concerned with the poojaris themselves, who perform the actual pooja and which is certainly an essential part of religious practice. Without poosaris, the temple can never exist. The Honourable Supreme Court in the case cited further https://www.mhc.tn.gov.in/judis 57 observed as follows:
"Collection and distribution of money even though given as offerings to the deity cannot be a religious practice. The offerings whether of money, fruits, flowers or any other thing are given to the deity. It has been said in the Gita that "whoever offers leaf, flower, fruit or water to me with devotion I accept that". The religious practice ends with these offerings. Collection and distribution of these offerings or retention of a portion of the offerings for maintenance and upkeep of the temple are secular activities. These activities belong to the domain of management and administration of the temple. We have to examine this case bearing this basic principle in mind. The offerings made inside the Temple are known as Veta and Pindika. Veta means the offerings that are given to Lord Jagannath at specified places in the Temple. Pindika means offerings that are given on the pedestal of the deities."
71.In para 25, the Honourable Supreme Court examined this issue further, as follows:
"25.The first question that falls for determination in this case is whether the right of the Sevaks to get a share of the Veta and Pindika as recognised in the Record of Rights is a religious right. ...... Moreover, the question in this case is whether any religious right of the Sevaks was interfered with by the new provisions of the Act introduced in 1983 whereby Hundis were placed at different places of the Temple and a declaration was made that Sevaks will not be entitled to any portion of the monies given by way of offerings in the Hundis."
72.It was further observed as follows:
"26......It has been noted earlier in this judgment how the offerings made by the devotees are to be guarded and collected in Gadus (Jugs) by the Sevaks. The Sevaks have to do these jobs https://www.mhc.tn.gov.in/judis 58 because they have ben appointed for this purpose For doing their work, they may be paid salaries. They may also be remunerated by paying a portion of the offerings collected by them. Cleaning of the temple, including the collection of monies lying scattered all over the temple floor and also from the throne cannot be treated as performance of any religious rite. On the contrary, it is an act of pure and simple collection of money for which a prescribed portion is given to those who collect the money. We do not see it as anything but a way of remunerating the Sevaks for the jobs done. The Sevaks cannot be said to be professing, practising or propagating religion by these acts of collection of money for remuneration.
27.Now the Hundis have been installed. Section 28B(4) forbids any person which includes Sevaks to go near the Hundis unless authorised by the Administrator. Devotees may, however, for the purpose of making offerings go near the Hundis. The Sevaks do not have to discharge any duty so far as the Hundis are concerned nor do they get any remuneration by way of a share in the offerings made in the Hundis. It is difficult to see how installation of the Hundis can amount to interference with the religious rights of the Sevaks. It has to be borne in mind that the offerings are made to the deities and not to the Sevaks. The Managing Committee has a right to decide how the monies which have been given as offerings to the deities will be collected and disturbed. .....
28.It is true that placing of the Hundis at different parts of the Temple has the possibility of reducing the income of the Makaps, but simultaneously, their duties and responsibilities have also diminished. They do not have to keep guard over the Hundis nor do they have to collect and deposit the offerings made in the Hundis with the temple authority. Collection of money also carries with it, the responsibility for accounting for the money collected. All these onerous obligations now stand reduced. it is not the case of the Sevaks that they have been asked to work without any pay. Therefore, in our view, there cannot be any question of violation of any religious right guaranteed by Articles 25 and 26 of the Constitution.
29.The Sevaks cannot also invoke Article 300A in the facts of this case. The offerings that are made to the deities are not https://www.mhc.tn.gov.in/judis 59 the properties of the Sevaks. The Sevaks are given a share in these offerings as remuneration for guarding and collecting the offerings. They do not have to discharge these duties in regard to the monies deposited in the Hundis. They are not entitled to any share in these monies as of right. There cannot be any question of deprivation of any right to property of the Sevaks in the facts of this case. Merely because by mistake some monies were paid to 'Dwaitatapatis' as compensation will not confer any right on the Sevaks to get any such compensation. No right can be founded on a mistake committed by the Temple Committee.
73.It was further held as follows:
"31.......The Temple Committee had adopted certain measures like placing closed receptacles in place of Gadu and also Hundis to ensure proper collection of the offerings. The monies are to be used for charitable purposes. The Sevaks cannot be heard to complain that their property and also religious rights had been taken away in the process. The placing of the Hundis may restrict their activities and also reduce their share in the offerings but that does not amount to abridgment of any religious or property right of the Sevaks.
34......The collection of monies and other offerings inside the temple cannot be treated as a practice of religion by the Sevaks. They were simply discharging their duties assigned to them for remuneration. Every activity inside the temple cannot be regarded as religious practice. Moreover, sub-clause (2) of Article 25 of the Constitution has specifically reserved the right of the State for making any law 'regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice'. If there is any financial or economic activity connected with religious practice, the State can make law regulating such activities even though the activity may be associated with religious practice. In the instant case, we are of the view that the various duties assigned to the sevaks are nothing but secular activities, whether associated with religious practice or not. Moreover, the State Legislature has, in any event, power to frame laws for regulating collection and utilisation of the offerings of monies made inside the temple by https://www.mhc.tn.gov.in/judis 60 the devotees."
74.The Supreme Court finally held as follows:
"48.In view of these principles laid down in the aforesaid cases and having regard to the facts of this case, we are of the view that the installation of the Hundis for collection of offerings made by the devotees inside the Jagannath Temple at Puri did not violate the religious rights of the Sevaks of the Temple in any manner even though the sEvaks were denied any share out of the offerings made in the Hundis. Section 28-B of the Act cannot be struck down as violative of religious or property rights of the sevaks."
Placing heavy reliance on the above judgment, Mr.V.R.Shanmuganathan, learned Special Government Pleader pointed out that the ratio laid therein squarely applies to the present case also. It was urged that the respondents herein cannot claim any right to any share in the hundial income.
75. With much respect to the learned Special Government Pleader, I disagree with the said contention. As pointed out, the Honourable Supreme Court was deciding the claim of Sevaks / temple attendants. Their work was sweeping and collecting the offerings and having collected them, they distributed them https://www.mhc.tn.gov.in/judis 61 among themselves and to the temple staff. It was also found that previously they kept guard over the hundials. They also collected the offerings made in the hundial and deposited the same with the temple authorities. They are paid salaries. They were also given the offerings as remuneration for guarding the hundial and collecting the offerings by sweeping them from the floor. It was subsequently found that they do not do that duty now. They did not do such duty, because the temple committee had placed closed receptacles in the place of Gadu and also hundials to ensure proper collection of the offerings. It was also found that the Sevaks cannot claim that collection of money was a religious practice. It had been observed that they do their work, after the pooja is completed and after the offerings are made by the devotees and after the worshiping of the devotees is over.
76. I must state that the case in hand, will have to be distinguished from the case before the Honourable Supreme Court. Here, the hereditary trustees / poojaris perform the actual pooja. This temple is an excepted temple. The hereditary trustees have been declared to have a beneficial interest in the income of the temple. The temple is a listed temple under https://www.mhc.tn.gov.in/judis 62 Section 46(2) of the Act. I also hold that the Commissioner had exceeded his power and had breached the guidelines fixed by the High Court in Ex-A28, the order in W.P.No.13 of 1993, dated 30.09.1999. Hon'ble Mr. Justice P.D.Dinakaran had very clearly stated that the Commissioner can proceed that suo motu proceedings, only :
(i) as and when the interest of the public relating to the affairs of the respective temple requires such action;
(ii) the conditions imposed in the order dated 8.5.1981 are violated; and
(iii) any change of circumstances in the affairs of the temple requires the revisional authorities to reopen the matter.
77.The Commissioner on the other hand, had iniatiated suo motu proceedings on the following ground:
"1)The income of the temple cannot be directly appropriated towards any expenses without being deposited in the Bank at the first instance.
2)The order of the Deputy Commissioner, Madurai, is not in consonance with Rule 14 of the Rules framed under Section 116(2) (XXiii) of the Act regarding pay and emoluments of the temple servants.
3)Payment of salary from the hundial income is not a regulated one and there is every possibility of variation due to fluctuation in the hundial income.
4)The padithram expenses of the temple shall be, as prescribed under Section 58 of the Act and appropriation of the share from the hundial income towards padithram expenses is against the procedure laid down under the rules."
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78. It is further seen that the Deputy Commissioner in his order in O.A.No.77 of 1980, Ex-A27 had laid down the following pre-conditions for seeking a share in the hundial income:
".... so long as they do their service properly, faithfully and also subject to the further condition that the expenses of padithram like, cocunuts, oil for lamp, oil for abisekam etc., shall be met by the poojaries personally."
79.The Commissioner in his order, had not stated that the respondents herein are not performing their services properly and are not meeting the expenses for paditharam personally. The only reason given by the Commissioner to interfere with the order of the Deputy Commissioner was the increase in the income of the temple. The Commissioner has to accept the fact that the increase of the temple was only because the devotees thronged to the temple primarily due to their belief in the Presiding Deity and also because they believed in the strength and sanctity of the poojas performed by the Poosaris. The Commissioner had interfered with the rights of the hereditary trustees / poojaris owing more to jealously over the increase in the share of the income. The Commissioner should have framed an alternative scheme / arrangements by refixing the ratio of the https://www.mhc.tn.gov.in/judis 64 share of the hundial income, to ensure that the poojaris get a source of income for their very livelyhood. Taking into consideration, the increasing cost of living and increasing cost of the pooja materials, the Commissioner should have acted as a Godfather to the poojaris. He should have counselled them. He should have ensured by his own conduct that the poosaris maintain discipline, that they realise the value of discipline. He should have made them realise the advantage of being culturally refined.
80.The temple is a village temple as observed in the earlier judgment of this Court. The tradition of the temple must be maintained. The Commissioner should have noted that the temple has been in existence prior to 1800 AD. He should have noted that over the past two centuries tradition has been established and the villagers and surrounding public and worshipers and regular devotees came to the temple, offering their obeisance to the Deity. This obeisance can be done only through the poosaris. The Poosaris should be respected and not stamped out by rule of authority.
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81.The judgment under appeal has examined the aspect that on two earlier occasions, the suo motu proceedings had been dropped by the Commissioner. The Commissioner had stated that the order of the Deputy Commissioner is not in consonance with Rule 14 Rule framed under Section 116(2) (XXiii) of the Act. This provision reads as follows:
"116(2) Without prejudice to the generality of the forgoing power, such rules may provide for:-
(xxiii)The qualifications to be possessed by the officers and servants for appointment to offices in religious institutions and the conditions of service of all such officers and servants."
The poosaris, who perform their holy work in a village temple do not require educational qualifications.
82. I hold that the order of the Commissioner has to be set aside and was rightly set aside by the learned Subordinate Judge. The first ground stated in the order of the Commissioner was that the income of the temple was not being deposited in the bank. The Commissioner has cited that ground in total ignorance of the earlier orders of this Court directing to put two locks over the hundials, directing to deposit the amount in teh bank to the https://www.mhc.tn.gov.in/judis 66 credit of the account of the temple, directing to open the hundial in the presence of witnesses and such other stipulations. The Commissioner had acted in direct violation of the earlier orders of this Court.
83. The Commissioner had also referred to Section 58 of the Act. Section 58 of the Act relates to fixing the standard scales of expenditure. Section 58 relates to the duties to be performed by the Commissioner. The power of the Commissioner to deny the poosarisa share in the income as their beneficial right is nowhere given. The Commissioner can alter the share. He cannot deny it in entirety. It is clear that the Commissioner, who is the first appellant was motivated to destroy the cultural ethics of the temple and to do so he destroyed the office of the hereditary trustees / poosaris. I hold that the judgment of the trial Court requires no interference. The Deputy Commissioner may be called upon to rework the proportion of income of the share of the hundial income. But as a concept, I hold that the respondents are entitled for a share in the hundial income.
84. DW-1, the Official of the HR & CE Board admitted that https://www.mhc.tn.gov.in/judis 67 the Department is not paying any money towards the expenses of the temple. As a matter fact, DW-1 admitted as follows:
"cz;bay; gzk; thuh thuk; vLf;fg;gl;L tq;fpapy; nlghrpl; nra;ag;gLk;. mjd;gpd;G tq;fpapypUe;J gzj;ij vLj;J NfhtpYf;fhf nrytopf;fg;gLk;. nryTfs; ,iz Mizah; mDkjpAld; nra;ag;gLk;. cz;bay; tUkhdj;ij itg;gPL nra;ahky; Neubahf nryTfs; nra;tjpy;iy. ve;j fhuzj;ijf; nfhz;L Mizah; cj;jutpl;lhh; vd;gJ vdf;F Neubahfj; njhpahJ. tUlhtUlk; Nfhtpy; fzf;Ffs; rk;ge;jkhf Mbl; eilngWfpwJ. gpthrM-5y; rpwg;G G+i[fSk; fhz;gpf;g;gl;Ls;sd. G+rhhpfshy; gbjhu nryTfs; nra;ag;gLfpwJ vd;gJk; mjpy; Fwpg;gplg;gl;Ls;sJ. rpwg;G G+i[fs; tiff;F tq;fp itg;gPLj; njhifapypUe;J nryTfs; nra;ag;gLfpwJ. ....... Nfhtpypy; cz;bay; gjpNtL xd;W guhkhpf;fg;LfpwJ. cz;bay; gjpNtl;by; ehDk; kw;Wk; tUif jUk; mjpfhhpfSk; G+rhhpAk; ifnahg;gk; ,LNthk;. mf;Nlhgh; 2001 Kjy; Vg;uy; 2002 tiuapYk; kw;Wk; [_d; khjj;jpy; tUkhdq;fs; rpy thuq;fspy; vd;d tUfpwJ vd;gjw;fhd cz;bay; gjpNtl;bd; efy; thrhM-39 MFk;.
ghz;b Nfhtpypy; thuj;jpw;F xU G+rhhp FLk;gk; G+i[ nra;thhfs;. 5 bu];b FLk;gq;fs; cs;sd. mth;fSf;Fs; khwp khwp tUthhfs;. ghz;b Nfhtpypy; nghWj;jtiu guk;giu mwq;fhtyh;fSk; mth;fs;jhd;. G+rhhpfSk; mth;fs;jhd;. ghz;b Nfhtpy; Rkhh; 39 nrz;l; tp];juP zj;jpy; mike;Js;sJ. Nkw;gb 39 nrz;l; G+kpia jtpu NtW nrj;Jf;fs; vJTk; jw;NghJ fpilahJ."
85.It is clear from the above admission on oath that the hundial income is deposited into Bank and is not spent directly. It was admitted that the expenses are audited, that the expenses for special poojas are spent only from withdrawals of the Bank account. It is further seen from the above admission that there is a hundial register, which had been marked as Ex-A39. That it is https://www.mhc.tn.gov.in/judis 68 correct that from the Register, the income of the temple can be easily verified. The witness never stated that the income statements are manipulated. The witness also admitted that the arrangements for Puja Murai among the Poosaris continue in accordance with the order in O.S.No.383 of 1973 under Ex-A30. To the credit of the respondents, who had entered into a compromise, they still honour the said compromise. The witness admitted to the same. The witness further deposed as follows:
"ghz;b NfhtpYf;F cz;bay; tUkhdk; jtpu nrUg;G> fil Vyk; tUkhdKk; fpilf;Fk;. 2 filfs; thliff;F tplg;gl;Ls;sd. me;j tUkhdKk; fpilf;Fk;. G+rhhpfSf;F rk;gsk; nfhLf;fg;gl Ntz;Lk;. Jiz Mizah; cj;juTg;gb cz;bay; tUkhdj;jpy; ghjpj;njhif G+rhhpf;F nfhLf;fgl;bUe;jJ. khh;r; 2000 tiuapYk; mt;thW nfhLf;fgl;lJ. nrUg;Gf;fil tUkhdj;jpNyh fil thlifapNyh G+rhpfSf;F vJTk; nfhLf;fg;gLtjpy;iy."
He admitted that the Poosaris are not paid any share from the rental income derived from the few stalls put up in the temple campus.
86.With respect to the expenses for the pooja by the poosaris, themselves the witness admitted as follows:
https://www.mhc.tn.gov.in/judis 69 "Nfhtpypy; 3 fhy G+i[ elf;fpwJ. gbj;ju nryT (G+i[) G+rhhpfs;jhd; nra;aNtz;Lk;. cz;bay; tUkhdj;jpy; nfhLf;fg;gLk; ghj tUkhdk; gbj;ju nryTfSf;Fk; G+rhhp CjpakhfTk; nfhs;sg;gLk;. gbj;ju nryT Nghf kPjj;ij Cjpakhf nfhs;fpwhh;fs;. thuhthuk; G+rhhp khwp khwp tUtjhy; thuj;jpw;F xUKiw cz;bay; tUkhdj;jpy;
ghjpia G+rhhpf;F nfhLf;Fkhw Jiz Mizah;
cj;jutpl;Ls;shh; vd;why; rhpjhd;."
He categorically admitted that the expenses for poojas are not only by the Possaris.
87.The evidence extracted above, very clearly shows that the Commissioner had exceeded his power. He had violated the order in W.P.No.13 of 1993. The grounds to initiate suo motu proceedings are actually even according to DW-1, who is the witness for the HR & CE Department, cannot be substantiated, and the order passed thereunder is wholly unsustainable. There are no merits in this appeal.
88. In the Commissioner HR & CE (Admn.) Department Vs. Senthamarai Kannan (died) and others https://www.mhc.tn.gov.in/judis 70 reported in 2004 -2-L.W. 695, Section 6(11) of the Act which defines 'hereditary trustee' had been considered. It had been held as follows:-
“6. A reference to Section 6(11) of the Act, which defines 'hereditary trustee' is apposite:
“Section: 6 – Definitions:
(1) to (10) ...
(11) “hereditary trustee” means the trustee of a religious institution, the succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by the founder, so long as such scheme of succession is in force.
7. As per the above definition, hereditary trustee of a religious institution would be by the succession to whose office devolves by hereditary right; or is regulated by usage; or is specifically provided for by the founder. Therefore, suffice it for the persons who claim hereditary trusteeship to prove any one of the said provisions.” https://www.mhc.tn.gov.in/judis 71
89. In Babu Gurukkal v. Commr. For H.R. & C.E Board, 1964(1) MLJ 384, held as under:
“Small temples in South India often have only poojaris who by long custom or usage look after the affairs of the temples where they serve as gurukkals; they function in a dual capacity, namely poojari cum trustee.
Such a combination of offices is not necessarily opposed to public policy or contrary to law. In the case of such small temples, there is a presumption that the poojari himself is the hereditary trustee and there is nothing illegal in the hereditary trusteeship and poojariship being combined in the same person in such small temples. When the documentary evidence including the Inam Register shows that for more than three generations the poojariship cum trusteeship in a temple was in the same family and descended from father to son and there is no evidence https://www.mhc.tn.gov.in/judis 72 to show that this was not so or could not be so, the presumption is all the greater, and it must be held that the members of the family are hereditary trustees of the temple.”
90. Again in Ranganatha Pillai v. The Commr. H.R & C.E., 1979 (1) MLJ 24 short notes held that:
“The definition f a hereditary trustee in Section 6(11) of the Tamil Nadu Religious and Charitable Endowments Act is very wide in its amplitude. Hereditary trustee is not to be understood as from father to son or from son to his son.
Having regard to the comprehension definition, it is enough if a usage is established for a long number of years evidencing exercise of hereditary trusteeship of a particular temple or temples by members of a family.” https://www.mhc.tn.gov.in/judis 73
91. In Muthuswamy v. Aiyaswami, 1964 (II) MLJ 560, a Division Bench of this Court, referring to the earlier decisions of this Court in (I) Ramaswami v. Ramaswami, (1892) 2 MLJ 251; and (ii) Andavar v. Periathambi Padayachi, (1951) 2 MLJ 232, held as follows:-
“There is nothing illegal in hereditary trusteeship and pujariship being combined in the same person, especially in the case of small temples where there has been no interference or control by any of the villagers of the place. In the case of small village temples, where the temple property is of insignificant value and the income is hardly sufficient even to meet the routine expenses of the temple, if the archaka or the poojari is left in management of the temple lands and the affairs of the temple without any interference by any of the villagers for a long number of years, it has to be presumed that with the consent and acquiescence of the worshipers of the village the pujari is the trustee as well.
https://www.mhc.tn.gov.in/judis 74 In such a case it must be held that the poojari managing the lands and affairs has made out his right to hereditary trusteeship and the interests of the temple are not likely to suffer, when the person concerned admits that the lands, are temple lands and has never set up any rights to them as his own property.”
92. In Venkataraman v. L.A. Thangappa, AIR 1972 Madras 119, held that in the case of small temples with meager income, there is nothing illegal in the hereditary poojariship and trusteeship being vested in the same individual.
Points Answered:-
93.In view of the above discussion, with respect to the points framed for determination, I hold that;
1)the plaintiffs have a right to claim beneficiary interest in the income of the suit temple as remuneration for service rendered by them and for 'Paditharam' expenses. https://www.mhc.tn.gov.in/judis 75
2)The plaintiffs have a right to claim a share in the Hundial income of the suit temple as remuneration and towards 'Paditharam' expenses.
3)The HR & CE Department is not contributing any money towards daily expenses for the daily poojas conducted in the suit temple.
4)The order of the Deputy Commissioner in O.A.No.77 of 1980 is an order within the provisions of Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959.
5)The suo motu revision in SMR No.12 of 1992 and the order dated 24.03.2000 by the Commissioner is not based on the conditions stipulated in the order of the High Court in W.P.No.13 of 1993.
6)The Commissioner, HR & CE Department, had exceeded his powers, while adjudicating SMR No.12 of 1992 in his order, dated 24.03.2000.
7)The order of the Commissioner, HR & CE Department, in SMR No.12 of 1992, dated 24.03.2000 is not legally sustainable.
8)The judgment and decree in O.S.No.413 of 2000, dated 28.06.2002 requires interference.
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94. I further hold that the Joint Commissioner, HR & CE Department, can revise the percentage of the share from the hundial income for the Poosaris / Trustees taking into consideration all factors like the increase in hundial income as on date the rising of cost of living, the rising cost of the paditharam expenses and the rights of hereditary trustees / poosaris to lead a life with dignity.
95.With these observations, the appeal is dismissed with costs. The judgment and decree passed in O.S.No.413 of 2000, dated 28.06.2002 on the file of the Principal Subordinate Judge, Madurai, is confirmed. The Civil Miscellaneous Petitions in C.M.P.(MD)Nos.380 of 2016 and 9367 of 2018 are dismissed.
Index :Yes/No 02.11.2018
Internet :Yes/No
cmr
To
1.The Principal Subordinate Judge, Madurai.
2.The Section Officer, VR Section, https://www.mhc.tn.gov.in/judis 77 Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 78 C.V.KARTHIKEYAN, J., cmr Pre-Delivery Judgment made in Appeal Suit No.801 of 2002 02.11.2018 https://www.mhc.tn.gov.in/judis