Madras High Court
Kumaru Reddiar(Minor) vs The Commissioner on 7 September, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 07.09.2018
RESERVED ON: 04.09.2018
PRONOUNCED ON:07.09.2018
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
A.S.No.341 of 1994
Kumaru Reddiar (died)
1.Kumaru Reddiar(minor)
2.Ganesh(minor)
(Appellants 2 and 3 are impleaded as L.Rs of
the deceased 1st appellant vide order dated
23.09.1987 in C.M.P.No.14225 of 1986) ... Appellant
-Vs-
1.The Commissioner,
H.R.&C.E. (Admn)
Department, Nungambakkam High Road,
Madras
2.The Deputy Commissioner, H.R.&C.E.
(Adm) Department) Gokhala Road,
Chokkikulam, Madurai.
3.The Assistant Commissioner, H.R.&C.E.
(Adm) Department, Cokhala Road,
Chokkikulam Madurai.
4.M.Alagarsamy Naidu
5.P.Venkatasamy Naidu
6.Rathinam alias Arjunan ...Respondents
PRAYER: Appeal Suit is filed under Section 70(2) of the H.R.&C.E Act, 1959,
against the judgment and decree dated 26.09.1977 in O.S.No.248 of 1975 on the
file of the III Additional Subordinate Judge, Madurai.
!For Appellant : Mr.G.Sridharan
^For R1 to R3 : Mr.J.Gunaseelan Muthiah
Additional Government Pleader.
For R4 & R6 : Died
For R5 : Dismissed
:JUDGMENT
The plaintiff is the appellant before this Court. The plaintiff has filed an appeal against the dismissal of O.S.No.248 of 1975 by judgment and decree dated 26.09.1977 by the Sub Court, Madurai.
2.The suit had been filed by the plaintiff, Kumaru Reddiar under Section 70(2) of the Hindu Religious and Charitable Endowment's Act, 1959 against the Commissioner H.R.&C.E., Deputy Commissioner, H.R.&C.E., the Assistant Commissioner, H.R.&C.E., M.Alagarsamy Naidu, P.Venkatasamy Naidu and Rathinam alias Arjunan seeking to set aside the order, dated 01.12.1973 passed by the first defendant in A.P.No.69 of 1973 and for a declaration that the properties do not constitute a mutt or a temple within the meaning of the above said Act. There are three properties in the schedule to the plaint.
(i)the first property is Door No.90 comprised in T.S.No.106/2 in North Veli Street, Madurai Town.
(ii)the second property is Door No.91 comprised in T.S.No.106/1 in North Veli Street, Madurai Town.
(iii)the third property is Door No.92 comprised in T.S.No.105/3 and 7 in North Veli Street, Madurai Town.
3.According to the plaintiff, in the first item of suit property, he resides there with his family in a portion of the property. There is a Samadhi with the image of Lord Vinayagar. It is known as Thindumasthan Madam. A retired gentleman was residing there and doing gurupoojai. In the second item of the suit property, a tyre company is doing commercial business and paying rent to the plaintiff. In the third item of the suit property, there is a Ayurvedic Medical Shop. It was actually sold to one Karuppiah.
4.The third defendant assumed that the first item of the suit property is a mutt and passed an order dated 24.12.1968 and appointed the defendants 4, 5 and 6 as trustees. The plaintiff claims that notice was not given before such order was passed. The plaintiff further claims that the defendants 4 to 6 attempted to take possession of not only item No.1 but also of items 2 and 3 as if they constituted Thindumasthan Madam. Hence, the plaintiff filed O.A.No.5 of 1969 before the second defendant under Section 63(a) of the HR&CE Act, 1959. The second defendant passed an order on 09.06.1972 dismissing the plaintiff's petition. The plaintiff then filed an appeal in A.P.No.69 of 1973 before the first defendant. That was also dismissed on 01.12.1973. The plaintiff then filed O.S.No.248 of 1975 before the Sub Court, Madurai. He claimed that all the orders have been erroneously passed and stated that there is no mutt in the first item of the suit property and that the second and third items of the suit property are commercial complexes.
5.The suit was resisted by the defendants by filing written statement wherein they have stated that the suit item is several decades old. It was stated that regular pooja was being conducted in the suit temple. The public used to offer worship in the temple. It was stated that the suit temple is a temple within the meaning of Section 6 (20) of HR&CE Act. It has been stated that the orders of the Assistant Commissioner and the Deputy Commissioner are justified.
6.On the basis of the above pleadings, the learned Sub Judge, Madurai framed the following issues:-
?(i)Whether the suit properties do not constitute a Mutt or temple?
(ii)Whether the order dated 01.12.1973 of the first defendant is liable to be set aside?
(iii)To what relief, if any, is the plaintiff entitled??
7.The learned Sub Judge took up the issue No.1 for consideration and held that all the three schedule properties were known as Thindumasthan Madam. The learned Judge further held that the contentions of the plaintiff cannot be accepted, since the defendants had already passed orders against the plaintiff. During the trial, however, oral evidence was not adduced by either side. The learned Judge based his findings on the evidence recorded by the third defendant, namely, Assistant Commissioner. Further, no oral evidence was let in by any of the parties before the learned Sub Judge.
8.The questions that arise for consideration in this appeal are as follows:-
?(i)Whether Item Nos.1 to 3 of the suit properties are a mutt?
(ii)Whether the order of the trial Court can be sustained when it was based on the evidence recorded by the third defendant?
(ii)Whether the order of the trial Court is to be interfered with??
9.Heard arguments advanced by Mr.G.Sridharan, learned counsel for the appellant and Mr.Gunaseelan Muthiah, learned Additional Government Pleader for the respondents 1 to 3.
10.The plaintiff is residing in Door No.90, North Veli Street Item No.1 of the suit property. It is a residential house. In a portion of the house, there is a Samadhi. It is not a Samadhi of any relative of the plaintiff but it is a Samadhi which had been in existence for a long time. However, in the Samadhi, there is a Vinayagar Idol. It was called Thindumasthan Madam. It is claimed that a retired gentleman was doing Guru Poojai to the Samadhi and Idol. However, the date and year on which, the Samadhi was erected or even the name of the person so consecrated and the date and year on which the Vinayagar Idol was erected have not been established by letting in admissible evidence.
11.As a matter of fact, there is no oral evidence at all. The details of Poojai which is being done has not been established before the trial Court. It is also not known whether the Poojai is being conducted on some regular intervals and who is performing it as on date. The trial Court relied on the evidence let in before the Assistant Commissioner who is the third defendant. The trial Court could have summoned any official from the HR&CE Department to substantiate their stand. There is absolutely no evidence to substantiate the facts claimed in the written statement. Even otherwise, the orders of the Assistant Commissioner and Joint Commissioner were in appeal before the trial Court, and it can hardly be appreciated of the trial Court simply repeats the findings recorded by them and had not thought it fit to call upon the parties to independently prove the averments made by them in the pleadings. The parties might have even resiled from their stands. The trial Court has based its findings on evidence recorded by an Authority whose order was challenged in the suit and the vires of which order, the trial Court had been called upon to adjudicate.
?20. In Soundarathammal v. The Thiruchirapalli Mavattam Mahasuruli Alaya Bakthargal Madya Sangam by its President Balamuthu Servai and others (1977 1 MLJ 125), it had been held as follows:-
?Before a temple or a shrine or other holy place can be accepted and recognised as a place of public religious worship there must be evidence of dedication of the same for the benefit of the Hindu Community or a section thereof. The guidelines are that it should be a place of public worship, there should be acceptable proof of dedication for the benefit of the Hindu Community or a section thereof and/or the worshippers have been using as of right the religious institution as a place of public religious worship. The building of a Vinayagar Temple on one side of the Samadhi and the consecration of a Vel on the other side in the instant case can only be considered adjuncts to the Samadhi and not factors which have the effect of elevating the Samadhi to the category of a temple.?
21. In 1986 4 SCC 162 (Hari Bhanu Maharaj of Baroda Vs. Charity Commissioner, Ahmedabad) the Honourable Supreme Court had held in paragraph 10 as follows:-
?10. Once materials are found to warrant a conclusion that a Math or Mandir was private in character at the time of its origin, then unless there is clear and definite evidence to show that there had later been a dedication of the institution for the use of the public, the private character of institution will not get effaced. Even if at some subsequent point of time, the owners of the Math had permitted the members of the public to visit the Math and worship at the Mandir; it will only mean that the members of the public would have visited the Mandir as invitees and nothing more.?
22. In 1997 2 LW 477 (MVPB.Nammalwar Vs. The Commissioner, HR&CE, Madras), this court had to decide the status of a Samadhi of Michael Siddar, who was a Christian for whom Vedanayagam Sami is his Guru. It was called Dakshinamoorthy Madam. There was a Samadhi for Kamal Sami, a Christian for whom also poojas were done. There was also a Vedanayagasami Samadhi. These Samadhis were sought to be declared as Maths by the HR&CE Board. This court had held as follows:-
?The nomenclature of the institution is immaterial and merely because the institution is called Math, it will not become a Mutt as defined under the Act. But, the Court has to look into the recitals in the documents creating the institution and come to an independent conclusion whether the recitals in the documents constitute a Mutt or not.?
24. In 2002 3 MLJ 398 (R.Padmanabhan and others Vs. Sri Vidhya Vakeesa Theerthar and another) , this court had an occasion to deal with Sri Vyasaraja Mutt. Vyasaraja was a Saint and Philosopher of Madhwa Community.
Whenever such saints attained Mukthi, their mortal remains were interned and Samadhis were constructed and guru poojas are conducted. These Samadhis were held in reverence by the devotees. Daily poojas were also done. Abhisegams were also carried out. Lord Krishna was worshipped as their Presiding deity in the temple in the Mutt. All Hindus joined and offered worship. The Samadhis and the temple in the branches in Mutts have become places of public worship. While discussing the Samadhi of Vyasaraja, this court stated as follows:-
?24. ... There is absolutely no evidence of endowment of any property by any public. Simply because a temple is put up adjoining the Samadhi and some Guru Poojas are performed on particular days, it cannot be construed as a religious institution?.
26. In 2001 2 MLJ 737 (Commissioner, HR&CE, Madras Vs. N.Sundaraswamy Gounder and another), this court had an occasion to deal with installation of an Idol of Vinayagar called Ishta Sidhi Vinayagar by a single family and building a temple. This judgement assumes importance since in this case, the learned Government Advocate stated that there was a Vinayagar Idol in the Samadhi of Parameswara Gnaniar as is evidenced in the present case. It was held in paragraph 9 as follows:-
?9. .... it is clear that the suit temple is situated within the compound of the 1st Respondent's property and that access to the temple is through the same gate through which one enters the residential premises of the 1st Respondent. It is also clear that to enter the temple,, one has to obtain the permission of the 1st Respondent and also obtain the keys from him.Therefore, access is only upon the permission and pleasure of the founder and his family members. The absence of Hundi also shows that no contribution from the public is received at the temple. ..... Another crucial feature is that the Samadhi of the ancestor of the family lies very close to the temple. No doubt, there is presumption that private temples are very rare in South India, but it does not mean that there cannot be any private temple.?
12.In the present case, there is no evidence to show that there has been dedication for the benefit of the public of the mutt. There is also no evidence to show the general public offer their prayers. There is also no evidence to show that the trial Court had arrived at an independent conclusion with respect to item No.1 of the suit scheduled property.
13.In view of all these reasons, I hold that Item No.1 cannot be categorized as a mutt or a temple. In the plaint, it has been clearly stated that in item No.2 of the suit scheduled property, a tyre company is doing business. It has also been stated in the plaint that Item No.3 property had been sold to one Karuppiah and earlier, there was an Ayurvedic Shop. It is clearly seen that commercial activities are being conducted in Item Nos.2 and 3. By no stretch of imagination, they can be categorised either as mutt or temple.
14.In the result, I hold that the judgment and decree of the trial Court has to be interfered with and accordingly, it is set aside and the suit is allowed. Consequently, the appeal suit is allowed, however, in the circumstances of the case, without costs.
To
1.The III Additional Subordinate Judge, Madurai.
2.The Commissioner, H.R.&C.E. (Admn) Department, Nungambakkam High Road, Madras
3.The Deputy Commissioner, H.R.&C.E. (Adm) Department) Gokhala Road, Chokkikulam, Madurai.
4.The Assistant Commissioner, H.R.&C.E. (Adm) Department, Cokhala Road, Chokkikulam Madurai.
5.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
.