Madras High Court
The Commissioner vs Arulmighu Kottar Ezhava Oor
Author: S.Srimathy
Bench: S.Srimathy
A.S.(MD).No.197 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved On Judgment Pronounced On
01.07.2024 27.08.2024
CORAM:
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
A.S.(MD).No.197 of 2016
and
C.M.P.(MD).No.12157 of 2016
The Commissioner,
Hindu Religious and Charitable
Endowment Department,
Chennai. ...Appellant
--Vs--
1. Arulmighu Kottar Ezhava Oor,
Arumughaperumal Pillayarswamy Kovil,
Kottar, Vddiveeswaram village,
Temple Agasteeswaram Taluk,
Kanyakumari District.
2.S.Manikumar
3.K.S.Muthu
4.B.Subramanian ...Respondents
(Respondents 2 and 4 are Trustees of
Arulmighu Kottar Ezhava Oor,
Arumughaperumal Pillayarswamy kovil
is substituted vide order dated 15.04.2004
made in C.M.P.(MD)No.2198 of 2024 in
A.S.(MD)No.197 of 2016)
https://www.mhc.tn.gov.in/judis
1/36
A.S.(MD).No.197 of 2016
PRAYER: Appeal Suit filed under Section 96 of C.P.C., to set aside the
Judgment and decree dated 15.12.2014 in O.S. No.96 of 1990 on the file of the
Learned Principal Subordinate Judge, Nagercoil.
For Appellants : Mr.P.T.Thiraviyam
Government Advocate
For R1 to R4 : Mr.A.Arumugam
*****
JUDGMENT
The First Appeal is filed by the HR&CE Department who was the defendant in the suit to set aside the Judgment and Decree dated 15.12.2014 passed in O.S.No.96 of 1990 on the file of the Principal Sub Court, Nagercoil. The plaintiffs in the suit are the respondents herein and the defendant in the suit is the appellant herein.
2. The suit in O.S.No.96 of 1990 is filed to set aside the order dated 26.02.1989 passed in A.P.No.19/1983 by the Commissioner of Hindu Religious & Charitable Endowment Department (hereinafter referred to as HR&CE Department), Madras declaring Arulimighu Kootar Ezhava Oor Arumuga Perumal Pillayar Swamy Kovil (hereinafter referred as temple) Kottar, Nagercoil, Agasteeswaram Taluk, Kanyakumari District as a religious institution https://www.mhc.tn.gov.in/judis 2/36 A.S.(MD).No.197 of 2016 and to declare the said temple is Private Temple which belongs to 52 Ezhavas families mentioned in the Udambady.
3. The plaintiff submitted that the temple was in existence for more than 100 years and when there was interference by the HR&CE Department, the litigation started between the temple and the department. The Deputy Commissioner, HR&CE Department had initiated suo motu proceedings for framing a scheme of administration for the temple in O.A.No.10 of 1967. The then trustees had filed O.A.No.24 of 1967 under section 63(a) of the HR&CE Act to declare the institution is not a religious institution. The Deputy Commissioner, HR&CE (Judicial) had dropped the proceedings in O.A.No. 10/1967. And dismissed the O.A.No.24/1967, against which the trustees had preferred appeal in A.P.No.31/1973 on the file of Commissioner HR&CE. The said appeal was allowed and the case was remanded back to the Deputy Commissioner, HR&CE, Tirunelveli. The said application was renumbered as O.A.No.3 of 1975 and the same was dismissed on 29.05.1976. Again, the Trustees had filed appeal in A.P.No.139/1976 under section 69(1) of the Act and the case was remanded back to Deputy Commissioner, HR&CE, Tirunelveli vide order dated 23.04.1979. On remand the case was numbered as O.A.No.31/1979, https://www.mhc.tn.gov.in/judis 3/36 A.S.(MD).No.197 of 2016 thereafter the Deputy Commissioner had inspected the temple after issuing notice dated 29.08.1981, but again dismissed the case on 08.12.1981. Again, the trustees had preferred appeal in A.P.No.19 of 1983 and the same was dismissed on 26.02.1990. After issuing notice dated 26.03.1990 under Section 80 of Civil Procedure Code, the trustees had preferred O.S.No.96 of 1990 on the file of Sub Court, Nagercoil inter alia praying to set aside the order dated 26.02.1990 passed in A.P.No.19 of 1983. The said suit was dismissed on 31.03.1997, aggrieved over the Trustees had preferred A.S.No.831 of 1998 before High Court. The said First Appeal was allowed vide judgment and decreed dated 26.11.2009, wherein the case was remanded back to the Trial Court for fresh disposal with a direction to the Deputy Commissioner, HR&CE to forward all the documents filed in A.P.No.19 of 1983 and O.A.No.37 of 1979 to Sub Court, Nagercoil. The Trial Court was directed to grant opportunity to both the parties to adduce evidence, if any and to consider the issues afresh.
4. In the Trial the plaintiff had examined witnesses PW 1 to 5 before remand and PW 7 to 9 after remand. Likewise, DW 1 was examined before remand and DW2 after remand. Plaintiff had marked Exhibits A-1 to A-10 before remand and Exhibits A-11 to A-33 after remand. Likewise, defendants https://www.mhc.tn.gov.in/judis 4/36 A.S.(MD).No.197 of 2016 had marked Exhibits B-1 to B-4 before remand and Exhibit B5 after remand. Exhibit C1 to C2 (Commissioner report and sketch) were marked as Court documents. After full-fledged enquiry the suit was decreed on 15.12.2014 and the temple is declared as private temple, the order is A.P.No.19 of 1983 was set aside. Aggrieved over the same the present First Appeal is preferred by the HR&CE Department.
5. The historical facts and other facts as stated in the plaint are that the temple administration is based on the registered Udambady dated 19.06.1088 M.E. (1088 Malayalam calendar year is 1912 English calendar year). The temple even though it is known as “Sri Arumugha Perumal Pillayar Swamy Temple” is not a religious institution as defined in the HR&CE Act, XX11 of 1959, since it is worshiped by the plaintiffs and members of their families. The temple has “Mahalingam Samadhi” where the holy saint Mahalingam’s mortal remains were interned in the land belonging to the Ezhavas long ago. The said Mahalingam is a holy saint and godly man for the Ehavas of Kottar and they had great respect and regard and was held in veneration and worship. The said Samadhi is prior in point of time to that of Arumugha Perumal Pillayar Deity. The members of the Kottar Ezhava families are conducting Guru pooja to the Mahalingam Samadhi https://www.mhc.tn.gov.in/judis 5/36 A.S.(MD).No.197 of 2016 every year in the month of Margazhi and the said Gurupooja has nothing to do with the Suchindrum Temple. The deity of Pillaiyar was installed by the side of the Samadhi before 1096 M.E (English calendar year 1920), but the deity was adjunct to the Mahalingam Samadhi was in existence even prior to 1056 M.E. (English calendar year 1880), which is evident from documents. The aforesaid facts are admitted by the authorities and the said facts would indicate the institution was never a religious institution coming under the HR&CE Act. Further there are some historical and social reasons, wherein the temples in Travancore and their precincts are treated as sankotham (sannityam) and was not open to the non-caste Hindus, even some caste Hindus were denied access to temples. It was at such point of time the people who are Ezhavas had their own ways of worship. This institution does not have any of the essential ingredients i.e. Hundial and there is a no Dwajasthambam and there is no Palipeedam and there are no Utsava idols to be taken out in procession and there is no Praharam. Long back there were only the Mahalinga Samadhi as its adjunct the Arumugha Perumal Pillayar Samy idol. The remaining space remained vacant. So, the physical features of the institution do not bear out any of the trappings of the public religious institutions. Further this institution is not a place of public religious worship, hence the institution will not come with the definition of https://www.mhc.tn.gov.in/judis 6/36 A.S.(MD).No.197 of 2016 "religious institution" under the Act and it is outside the purview of Act. There is nothing to show that this institution is being used as a public religious worship without any let or hindrance. Nobody except the Ezhavas of Vagayadi Street, Kottar has right to come and offer worship in the temple.
6. Further the registered Udampady of the year 1088 M. E. dated 19.6.1088 signed by 52 persons of the Ezhava residents who are the owners of this institution would clearly show that the institution belongs to the said Ezhava residents. In the said Udambady the things that are to be carried out at the Mahaingam Samadhi is mentioned, wherein it is mentioned that daily lighting, special pooja on full moon days, Gurupooja for Mahalingasamy Samadhi in the month of Margazhi etc. The said Udambady had also mentioned who had endowed the properties, who had constructed the Samadhi for Mahalingam, to upkeep and maintenance of the Samadhi and its adjuncts. Further the plaintiffs had produced number of documents to prove and establish the institution is a family institution having private nature and not for the benefit of a section of the community. The HR&CE Authorities had instituted proceedings under Section 63 (f) and (g) stating that some of the charities mentioned in the Udambady are religious and some non-religious. When O.A. under section 63 (a) was filed, the https://www.mhc.tn.gov.in/judis 7/36 A.S.(MD).No.197 of 2016 allocation of funds for religious and non-religious charities were dropped. Even though the said Udambady was registered on 19.06.1088 M.E., the ledger for the year 1076 M.E. was available which is 12 years before the registration of the Udambady. The question whether the Samadhi is prior to the Arumugha Perumal Pillayar does not arise, since Samadhi would not be constructed by the side of idol. But idol of Pillayar or Shiva would be installed over the Samadhi as per Hindu customary practice. Further before 1096 M.E., the space occupied by the Vinayagar temple and other adjuncts including the portrait of Narayana Guru was a vacant site, there was no construction whatever. There was no mandapam, Artha mandapam or Mani mandapam and these came later and were subsequent additions that too after Narayana Guru had installed the idol of Pillayar and the same will not take away the characteristics feature of the institution, as a Samadhi of Mahalingam. Plaintiffs are able to produce accounts for 1096 M.E. mentioning the expenses for inviting Narayana Guru for installation of the Vinayagar in 1096 M.E., which would indicate that the Samadhi was first and the Vinayagar was next. Further the institution was never used as a place of public religious worship and no outsider has ever come to this temple for worship. The Ezhava are also called "Illathu Pillaimar", and the name derived from Illathar. In 1076 Ledger the name is used is Kottar Vagayadi Street, https://www.mhc.tn.gov.in/judis 8/36 A.S.(MD).No.197 of 2016 Illathargal Oor. It connects only the area or locality inhabited by the Illathars and it cannot be equated to a village where all castes of people or out-castes resides. The inspector himself has admitted the existence of the Samadhi as prior in point of time to the Pillayar idol. The Poojas are done by a Ezhava, and there is no Brahmin Poojari and the Poojas are according to their own conviction, belief and practices. They had never gone to the Suchindram temple or any of the incorporated temples. This is not an institution included in the list of temples, published by the department. The plaintiffs / the ancestors, by diligence of their hard work and industry and their enthusiasm to uplift themselves under the strong advice of Shri. Narayana Guru had come up in life. There is no contribution from the general public. Therefore, it is unreasonable to hold the institution had liberal contribution from worshiping public and collection by way of kanikkai from them. Physical features do not proclaim the institution as a religious institution. All the reasoning stated by the defendants are mere conjectures and surmises. Hence the suit is filed to set aside the impugned order.
7. The defendants had filed written statement denying the averments stated in the plaint and submitted that Mahalinga Swamy, the saint was not belonging to the Ezhava community. The Ezhavas are not the descendants of the https://www.mhc.tn.gov.in/judis 9/36 A.S.(MD).No.197 of 2016 saint. The Mahalingam Swamy belongs to Ezhava Community and they came from Ezham or Ceylon are not correct. The Ezhava community is a section of Hindu community. The origin of the said Mahalinga Samadhi and Arumugha Perumal Pillayar temple, could not be traced. There is no scheme to manage and administer the institution, except the “Udambady” made on 1088 M.E. The defendants deny that the poojas are first done to Samadhi. The temple is having all features of public religious institution. The moolavar deity Vinayagar is installed, separate Sannadhi for Natarajar and Sree Narayana guru is installed. There is a Vimanam over the Garbagrahan, Prakaram, Madapalli attached to the temple. The wet lands stands in the name of Arumuga Perumal Pillayar temple. There are regular paid poojaris in the temple and daily “erandu kalam” poojas are performed regularly. All Hindu public have got every right to worship the deities in the temple. The worship conducted in the temple is similar to the worship conducted in other temples in this District. The poojas are done in the same way and in the same manner in any other public temple and after Dheeparadhana, Prasadhams are distributed to all worshipping in public, no discrimination is shown either in worship or in distribution in Prasadham and all the member of the Hindu community are freely allowed to Worship in the temple. Thus, it falls under the purview of the H.R. & C.E. Act 22 of 1959. The https://www.mhc.tn.gov.in/judis 10/36 A.S.(MD).No.197 of 2016 main entrance of Arumugha Perumal Pillayar is facing Cape Road a busy location and all the Hindu public are seeing the temple and worshipping the presiding deity. There is no restriction for worship and in distribution of prasadam. The Hindu community is freely allowed in the temple and they are worshipping from the time immemorial as in other Hindu public temples. Hence the temple would come under the definition of “temple” under section 6 (20) of the HR&CE Act.
8. As per the Udambady they can administer the temple and the income derived from the temple properties made for the poojas and other expenditure. The election of the Manager and Committee members is not a statutory body. The lighting and daily pooja expenditure for Arumugha Perumal Pillayar temple is also mentioned in the Udampady. The structure and construction of this temple and the public worship conducted and other things associated with the public religious institution will clearly prove that it is a religious institution as defined under H.R & CE Act and thus they cannot claim right of private or individual over of the institution. The HR&CE Authorities have every right to take every action for better administration of the temple. The Commissioner had scrutinized the documents and went through the history of the institution, https://www.mhc.tn.gov.in/judis 11/36 A.S.(MD).No.197 of 2016 thereafter had uphold the decision of the Deputy Commissioner, Tirunelveli in O.A.No.37 of 1979 dated 08.12.1981. The application filed under section 63 (a) of the HR&CE Act was dismissed as it is a religious institution and the appeal filed under section 69 (1) of the Act in A.P.No.19 of 1983 was also dismissed on 26.2.1990. Both the Deputy Commissioner and the Commissioner have passed their orders after verifying the entire records and arguments advanced by the institution. The public are freely allowed to worship in the institution without any restriction. There is no deed of foundation, succession to trusteeship and no scheme and hence the institution is a religious institution as defined in HR&CE Act and prayed to dismiss the suit.
9. As stated supra earlier the suit was dismissed, then the trustees had preferred appeal in A.S.No.831 of 1998 and the same was allowed and remanded for fresh disposal. After consider the case the Trial Court had allowed the suit. Aggrieved over the same the present First Appeal is filed by the defendant / HR&CE Department.
10.Heard Mr.P.T.Thiraviyam, the Learned Government Advocate https://www.mhc.tn.gov.in/judis 12/36 A.S.(MD).No.197 of 2016 appearing for the appellant / defendant and Mr.A.Arumugam, the Learned Counsel appearing for the respondents / plaintiffs. After hearing the arguments of both the sides and after perusing the pleadings and documents, this Court is passing the following judgment.
11. The primary contention of the defendant / HR&CE Department is that the plaintiff had not proved that there is Samadhi in the suit property. Further in paragraphs 8, 9 and 10 of the Advocate Commissioner report and the sketch which are marked as Ex.C1 and C2 only states that the word ‘Samadhi’ is superscripted over the door frame with paint and there is no Samadhi except Sivalingam idol on the right side of the Arthamandapam and Vinayagar idol as main deity and both sanctums are having Vimana with Kumbam, hence the temple is public temple. To consider this plea the relevant paragraphs 8, 9 and 10 of the commissioner report are extracted hereunder:
“8. With this background of the physical features of the temple which is more particularly located in the outline map prepared for the purpose the points of investigation have to be answered in seriatum. a. To note the existence of the Samadhi and idols of Vinayakar and Sivalinga as appendages to the Samadhi.
9. On the right side of south of Artha Mandapam facing east under a reinforced concrete roofing is housed Mahalinga Swamy Samadhi. It is a Sivalinga in the form of a Kasilinga with “Aayudaya” erected over a https://www.mhc.tn.gov.in/judis 13/36 A.S.(MD).No.197 of 2016 masonry dais 18 to 24 from ground floor. It has iron grilled shutters. On the right side of Sivalinga a small stone idol of Pillayar and behind it is a Nagar Idol. On the felt side of it two Nagars are found. This Pillayar is called Arumughaperumal Pillayar. It is suprescribed over the door frame of the Samadhi in white paint in Tamil “Mahalingaswami Samadhi” b. To note the Vinayagar idol placed on the right side wherein the date 1096 M.E. and the construction of Mandapam in front of it.
10. West of Arthamandapam facing east is the main shrine of Arumughaperumal Pillayar installed over a mansonry dais of 15 to 18 inches height from floor. It has its side walls put up with polished stones blocks and whose exterior is ornate with paintings and designs and it is roofed by a mini gopuram. It has a wooden ornamental door fastened to a stone frame wherein is found that engraving 1096-6-10 M.E. there is a moving space or prakaram around the shrine. On the south western corner of it is enshrined a small Pillayar within a RCC cellar. On the left side of the shrine is the sub shrine of Lord Subramonia seen with his two consorts facing east. There is an inscription of it being erected on 08.02.1985. In front of the shrine is seen embedded on floor a peacock statue.”
12. On perusal of the Advocate Commissioner’s report, it is seen that the report states that there is Samadhi and also there is word ‘Samadhi’ superscripted over the door frame in white paint. In the sketch the samadhi place in marked, wherein there is a construction and Sivalinga erected over a masonry dais 18 to 24 from ground. The Commissioner report also states that the Gurupooja would be conducted with annadhanam (mass feeding) on the Gurupooja day. After considering the arguments, the documents and the Commissioner report this Court is of the considered opinion that when there is a construction in the place earmarked as ‘samadhi’ with superscripted in the door https://www.mhc.tn.gov.in/judis 14/36 A.S.(MD).No.197 of 2016 frame, the same is sufficient to state there is ‘samadhi’. Further conducting Gurupooja festival confirms the fact that there is samadhi, since Gurupooja would be conducted only to Samadhi and not for idols / deities in the temple.
Furthermore, the Gurupooja festival is conducted with annadhanam on the Gurupooja day, which is the primary festival in temple is conclusive proof to state that Samadhi is primary and other poojas comes thereafter.
13. Further the statement of the Poojari namely Shri.Sathya Vasakam son of Arunanthisivam also confirms the same and the relevant portion of the statement is extracted hereunder:
27.12.1990-y; ehfHNfhapy; rg; NfhHl;by; O.S.No.96/1990-y; fkp\dH> T.fdf rig ml;tNfl; Kd;ghf> Nfhl;lhW <otH rKjha MWKfg;ngUkhs; gps;isahH Rthkp rKjhaNfhapy; G+rhhp A-13> KjypahH tlf;Fj;njUtpy; jhk]k;
mUz;ee;jp rptk; mtHfs; kfd; rj;jpathrfk; rj;jpakhfTk; cz;ikahfTk; $Wk; cWjpnkhop> ehd; gpwg;gpy; rpthrhhpahH kuigr; rhHe;jtd;. gpu];jhg Nfhapypy; ,d;iwf;F gjpd; %d;W tUlq;fSf;F Kd;gpUe;Nj rhe;jpg; gzpGhpe;J tUfpNwd;. vdf;F Kd;dhy; rKjhaj;ij rhHe;j rq;fuypq;fk; vd;gtH mg;gzp Ghpe;jhH.
fhiyapy; cjafhiy G+i[ 7.30 f;F nra;fpd;Nwd;. Nfhapy; eiljpwg;gJ fhiy 5 kzpf;F> cr;r fhiy G+i[ fpilahJ.
khiyapy; 5 kzpf;F eil jpwf;fg;ngw;W rhahyh i\G+i[ ,uT 7.30f;F eilngWk;. mh;j;j rhk G+i[ fpilahJ. irt rka Mrhug;gb G+i[ Kiwfs; elj;jp tUfpNwd;.
https://www.mhc.tn.gov.in/judis 15/36 A.S.(MD).No.197 of 2016 ehd; G+i[ elj;Jk; rd;dpjhdq;fshtd:- 1) kfhypq;fRthkp rkhJ>
2) fd;dp tpehafH> 3) 10.06.1096 Fwpaplg;gl;l kz;lgj;jpYs;s gps;isahH> 4) = Rg;gpukzpaRthkp> 5) eluh[H> 6) ehuhazFU cUtg;glk;. mr;rd;dpjhdq;fSf;F rkhjpypUe;J njhlq;fp thpirg;gbNa ehuhazFU tiu Muhjidfs; nra;J tUfpd;Nwd;.
irt Mfkg;gb kfhypq;f Rthkp rkhjpaUfpy; ,Uf;Fk;
MWKfg;ngUkhs; gps;isahiu topgl;l gpd;dNu rkhjpf;F
Muhjidfs; nra;fpNwd;. rkhjpapy; MTilahH kPNj fhrpypq;fk; fhzg;ngWfpwJ. gps;isahH tpf;fpufk; mjd; tyg;Gwj;jpy; jiuapy; fhzg;gLfpwJ.
rkhJf;F Mz;LNjhWk; FUG+i[ khHfop khjk; tsHgpiw jpuNahj rpj;jpapy; eilngWk;. gpwe;jehs; tpoh eilngWtjpy;iy. me;j e\j;jpuk; vJntd;W njhpahJ. ,J jtpu khje;NjhWk;
ngsHzkpad;W tpNr\ myq;fhu G+i[fs; eilngWk;. FUG+i[f;F rhJf;fSf;F md;dg;gilay; cz;L. gps;isahUf;F jdp cw;rt tpf;fpufk; fpilahJ. ve;j tpf;fpufj;jpw;Fk; Ch;tyj;jpw;F thfdKk; fpilahJ. Jt[];jk;gk; fpilahJ. Fhzpf;if ngl;b ,y;iy. cz;bay; ,y;iy.
Nkw;$wpa ahTk; cz;ik> A.rj;jpathrfk;
Nfhl;lhW
14. The said Poojari had stated that he belongs to Sivachariyar family and he was doing pooja for the past thirteen years, prior to him a person from the community of Ezhava was carrying on the pooja. This would indicate that the poojas are performed as per their wishes and convenience. Hence the institution is not following any customs prescribed for the temples to bring under the control of HR&CE. The said poojari also stated that the daily poojas would be conducted first for the Samadhi and thereafter the poojas would be conducted https://www.mhc.tn.gov.in/judis 16/36 A.S.(MD).No.197 of 2016 for other deities and the same would indicate that there is Samadhi, hence the contention of the defendant that there is no Samadhi is incorrect and the same is rejected. Further the contention of the defendant that the plaintiff ought to prove there is samadhi is rejected.
15. The defendant plea that except the word “samadhi” superscripted in door frame there is no other evidence is absurd. Such plea of the defendant gives an impression that the defendant would accept only if the mortal remains of the holy person is excavated and shown to the defendants.
16. Generally if temple is constructed first then the mortal remains of any person would not be brought inside the existing temple. While on the other hand, if samadhi is built with the mortal remains, then definitely Sivalingam would be consecration over the Samadhi or nearby Samadhi. In the present case even according to the defendants there is Sivalingam over the Samadhi. Therefore, the plea of the defendants that the plaintiff had not proved that Samadhi is not on any evidence but only presumption.
https://www.mhc.tn.gov.in/judis 17/36 A.S.(MD).No.197 of 2016
17. The issue of whether the Samadhi can be considered as Temple is elaborately considered in the case of Sri Ramanasramam by its Secretary and others Vs. the Commissioner HR&CE reported in 1960 II MLJ 121 and the relevant portion is extracted hereunder:
“Reference was made in the judgment to the decision of Viswanatha Sastri J. in Ramaswami v. Board of Commissioner Madras Hindu Religious Endowments reported in (1950) 2 MLJ 511, where on account of the long public religious worship what were originally memorials for heroes or martyrs had subsequently developed info-temples and came to he recognised as temples. In Bodendraswami Mutt V. President of Hindu Religious Endowments Board reported in (1955) 2 MLJ 60, it was held that a Samadhi of a holy man and a saint cannot ordinarily evolve into a temple for public religious worship and that the mere presence of idols of Gods, and recognised deities in the Matam round the Samadhi and the festivals which have grown up around such Samadhi inevitable in the case of all tombs of saints and great men in this country, would not bring it within the definition of a temple and that a Samadhi is not a temple. We have already referred to the Supreme Court decision in which it was held that the dedication of property for worship at a tomb is not sanctioned by Shastraic practices and is not valid amongst Hindus. A number of decisions of this court were referred to with approval, viz, Kunhamutty V. Ahmad Musaliar (1935) 68 Mad LJ 107 : (AIR 1935 Mad 28), A. Draiviasundaram Pillai v. Subramania Filial, 1945-2 Mad LJ 328 : (AIR 1945 Mad 217) and Veluswami Goundan v. Dandapani, 1946-1 MLJ 354 :
(AIR 1946 Mad 485), for the position that the building of a Samadhi or tomb over the remains of a person and the making of the provision for the performance of Gurupoojas and other ceremonies in connection with the same, cannot be recognised as charitable or religious purposes according to Hindu Law.” When the Courts had rendered a categorical finding that the Samadhi is not temple and Samadhi cannot be recognized as charitable or religious purposes https://www.mhc.tn.gov.in/judis 18/36 A.S.(MD).No.197 of 2016 according to Hindu Law, the contention of the defendant in the present case is against such propositions laid down by the Courts in the aforesaid judgments.
18. Further the defendant is confused and confusing the Court by stating that Vimana and Kumbam are constructed over the Sivalingam etc. and hence the same is temple and not samadhi. On perusing the sketch, it is seen the samadhi is placed south-east portion of the land and over the samadhi the idol of Sivalingam, Pillayar and Nagar idols are placed and there is no Vimanam or Kumbam for the said idols and the Samadhi. On the other hand, a Pillayar Vigraham was placed on the western portion of the land, wherein the said Vimanam and Kumbam are there. Likewise, Lord Subramanian along with his consorts Valli and Devaiyani are there on the north-western corner which contains Vimanam and Kumbam. Lord Nataraja idol is there on the northern side and opposite to samadhi. On the north-eastern corner the portrait of Narayana Guru is available. This description of the places would indicate that the said Vimanam and Kumbam is not in the Samadhi. Therefore, claiming that there is Vimanam and Kumbam in the other places would not be sufficient to prove the temple is public in nature.
https://www.mhc.tn.gov.in/judis 19/36 A.S.(MD).No.197 of 2016
19. The next contention of the defendant is that Trial Court had shifted the burden to prove that there is no Samadhi in the suit property on the defendant and the same is erroneous. As stated supra the temple cannot come into existence first, if Temple is constructed first, then the mortal remains of any person would not be brought inside the temple and the said custom is followed in Hinduism. If the defendant plea is against the said custom, then the defendant ought to be prove that temple came first. And the Trial Court is right is fixing the burden on the defendant / appellant. Therefore, the said plea of burden of proof of the defendant is rejected.
20. The next contention of the defendant is that the institution is a temple where general public are allowed to visit the temple. But the contention of the plaintiff is that the said temple is not even belonging to their Ezhava community, but it exclusively belongs to the 52 families and its members. Even though the plaintiffs and their families belong to Ezhavas (also called as "Illathu Pillaimar), their own community people would not be allowed to worship in the temple but only the said 52 families and their members are allowed and hence the temple is not public temple and also cannot be stated the temple belongs to one community. The plaintiff is relying on the Ex.A1 which is the Udambady https://www.mhc.tn.gov.in/judis 20/36 A.S.(MD).No.197 of 2016 executed within the 52 families. The defendant is disbelieving the Udambady and stating there is no scheme formulated by any competent authority. On perusing the said Udambady it is seen that the 52 families have affixed their signature and it also mentions the things that are to be carried out at the Mahaingam Samadhi, wherein it is mentioned that daily lighting, special pooja on full moon days, Gurupooja for Mahalingasamy Samadhi in the month of Margazhi etc. The said Udambady had also mentioned who had endowed the properties, who had constructed the Samadhi for Mahalingam, to upkeep and maintenance of the Samadhi and its adjuncts. Even if scheme ought to be formulated then the said Udambady would be one of the documents, to prove the rights of the plaintiffs. Therefore, the contention of the defendant against Udambady is unacceptable. Further if the plaintiff is managing the temple without giving room to any allegations of mismanagement or misappropriation, then the same cannot be interfered with.
21. The next contention of the defendant is that when the plaintiff had subjected themselves to the provisions of the Act and jurisdiction of the Act by paying amount to the HR&CE Department for superintendence, which is marked as Ex.B1 to 4, then the defendants have jurisdiction over the plaintiff temple. https://www.mhc.tn.gov.in/judis 21/36 A.S.(MD).No.197 of 2016 This contention of the defendant ought to be rejected outrightly, since any consent would not confer jurisdiction to any authority. And anybody cannot assume jurisdiction based on the consent of parties. Hence this contention of the defendant is rejected.
22. The next contention of the defendant that any place of public religious worship is a temple within the meaning of Section 6(20) of the Act. Further the presence of Sannadhis, Karpa Grahams, Vimanams, Prakarams, Madapalli etc., engaging regular Poosaris and doing daily poojas, festival and functions and other charities and conducting Maha Sivarathiri, Prathosam, Sathurthi, Sankatahar Sathurthi, Vinayaga Sathruthi, Varugha Athishegam etc. would establish the temple is public temple. On the other hand, the contention of the plaintiff is that when there are no hundials, dwajasthambham, palipeedam, procession of utasava idols, vahanam etc., the same would indicate that the disputed temple is not a public temple but a private temple. The said issue was considered in Thanimalayaperumal Mudaliar and others Vs. the Commissioner HR&CE reported in 1975 MLJ 310 wherein it is held as under:
“10. The inspection report of the Commissioner, which is to the effect that there is no gopuram, no dwajasthambham, no procession of the utasava https://www.mhc.tn.gov.in/judis 22/36 A.S.(MD).No.197 of 2016 idols, no hundi, no vahaham and no bell, cumulatively taken, give the impression that the temple is a private one…” Therefore, the aforesaid factors would not be a deciding factor to declare the temple as public. The contention of the defendant to declare the temple as public is on the basis of irrelevant factors.
23. The issue of relevant factors to declare the public temple is already considered by the Hon’ble Division Bench in the case of Commissioner, HR&CE Board, Nungambakkam and another Vs. T.S.Palanchami and seven others reported in 2003 (1) CTC 65 wherein it is held that the character of the temple has to be decided based on the evidence adduced in each and every case and the crucial factor for determining the character of the temple is whether, there has been dedication to public and the right of public to offer worship at the temple as a matter of right and it is observed as follows:
“22. ...... What is crucial for the purpose of deciding as to whether the temple is a public temple or private is the dedication to the public and the right recognised in public to offer worship at the temple as of right. That question is to be decided on a consideration of the oral and documentary evidence in the case and not on the basis of any non-statutory presumption.” https://www.mhc.tn.gov.in/judis 23/36 A.S.(MD).No.197 of 2016 Following the aforesaid judgment, this Court is of the considered opinion that the other facts stated supra cannot be a factor to declare the temple as public temple. The temple would be considered as public if the general public have uninterrupted ingress and egress without any permission. In the present case even the Ezhava community people have no uninterrupted ingress and egress and it is only the 52 families and the members of the said family have such right.
Therefore, the said temple cannot be declared as public temple.
24. The Hon'ble Supreme Court in the case of Radhakanta Deb and another Vs. The Commissioner of Hindu Religious Endowments, Orrisa, reported in AIR 1981 SC 798 had held to determine the temple in question is a public or private temple then the said temple should be subjected to four tests. The relevant portion is extracted hereunder:
.....
“The four tests are (1) whether the user of the temple by members of the public is as of right; (2) whether the control and management vests either in a large body of persons or within the members of the public and the founder does not retain any control over the management; (3) Whether the dedication of the properties is made by the founder who retain the control and management and whether control and management of the temple is also retained by him; and (4) where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by the members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the https://www.mhc.tn.gov.in/judis 24/36 A.S.(MD).No.197 of 2016 endowment.” … “The concept of a private endowment or a private trust is unknown to English law where all trusts are public trusts of a purely charitable and religious nature. Thus, under the English law what is a public trust is only a form of Charitable Trust. Dr. Mukherjee in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trusts (1952 Edition) has pointed out that in English law the Crown is the constitutional protector of all properties subject to charitable trusts as these trusts are essentially matters of public concern. The learned author has further pointed out that one fundamental distinction between English and Indian law lies in the fact that there can be religious trust of a private character under the Hindu law which is not possible in English law. It is well settled that under the Hindu law, however, it is not only permissible but also very common to have private endowments which though are meant for charitable purposes yet the dominant intention of the founder is to install a family deity in the temple and worship the same in order to effectuate the spiritual benefit to the family of the founders and his descendants and to perpetuate the memory of the founder. In such cases, the property does not vest in God but in the beneficiaries who have installed the deity. In other words, the beneficiaries in a public trust are the general public or a section of the same and not a determinate body of individuals as a result of which the remedies for enforcement of charitable trust are somewhat different from those which can be availed of by beneficiaries in a private trust. The members of the public may not be debarred from entering the temple and worshipping the deity but their entry into the temple is not as of right”.
If the aforesaid four tests are applied to the present case, it is seen the entry to the general public is not as a matter of right, the management is within the family members of the 52 families, the endowment is within the control of the said 52 families. Therefore, the temple in question is only private and not public temple.
https://www.mhc.tn.gov.in/judis 25/36 A.S.(MD).No.197 of 2016
25. In the case of Kuldip Chand and another Vs. Advocate General to Government of H.P. and others reported in (2003) 5 SCC 46, the same tests were adopted by the Hon'ble Supreme Court to determine whether the temple is public or private.
26. In the case of Commissioner HR&CE Vs. A. Krishna Iyer filed in A.S. (MD)No.105 of 2005, the Hon’ble High Court vide judgment dated 03.10.2018 had held as under:
“19. One of the further important ingredients required to declare a temple as a public temple is that there must be dedication for the benefit of the Hindu community as a place of public religious worship. In the present case, there is no evidence of such dedication. It has been the consistent stand of the plaintiffs that the temple had been worshiped only by the members of the first plaintiff trust and its samudayam and the general public do not have a right to worship.
20.In 1972 of SSC Page.329, T.D.Gopalan Vs Commissioner of Hindu Religious and Charitable Endowment, Madras, the Supreme Court held as follows:
(a) that origin of the mandapam had been proved to be private.
(b) That its management had remained throughout in the members of the Thoguluva family; and
(c) that there was complete absence of any endowed property. The temple has to be declared as a private temple.?
21. In the present case, the origin of the temple is obscure. But it is seen from Exs.A11 to A14 that the Travancore Samasthanam have given a specific grant to the community at Parvathipuram village and that the management of the Sree Venugopalaswamy Temple had been vested with the members of the Brahmin community in the village. It is clear that the temple is a private temple. It is also seen that DW-1 had admitted that Exs.A11 to A14 relate to the grant made by the Travancore Samasthanam https://www.mhc.tn.gov.in/judis 26/36 A.S.(MD).No.197 of 2016 to the temple more than 150 years ago. It is also seen that DW-1 had admitted that in the schedule of incorporated and unincorporated temples in the Travancore Cochin Hindu Religious Institutions Act, Sree Venugopalaswamy Temple was not included. Thereafter, even after the territories had been transferred to Tamil Nadu and the said Act has been repealed by the Tamil Nadu Hindu Religious and Charitable Endowment (3rd Amendment) Act, in schedule-1 of the Act, Sree Venugopalaswamy Temple, Parvathipuram is not included as an incorporated or unincorporated temple.
22. The above points clearly establish that Sree Venugopalaswamy Temple, Parvathipuram is a private temple belonging to the first plaintiff Trust. It is under the exclusive management of the members of the trust. The defendants have not produced any evidence contradicting these facts established by the plaintiffs. It is also seen that the inspection report had not been produced which goes to the root of the case. The plaintiffs did not have any opportunity to cross examine the defendant's witness on the issues raised in the said report. It is to be presumed that the report had not been produced only because it was adverse to the stand of the defendants.”
27. The next contention of the defendant is that the general public would worship in the temple in question. In the case of Sree Panimoola Devi Temple & others Vs. Bhuvanachandran Pillai and others, the Hon'ble Supreme Court after referring to the following observation of the Privy Council in Babu Bhagwan Din had taken note of the fact that Hindus generally do not turn away the people who come to worship and that by itself would not be sufficient to enable a determination that the temple in question is a public temple:
“In these circumstances it is not enough in their Lordships' opinion, to deprive the family of their private property to show that Hindus willing to worship have never been turned away or even that the deity has acquired considerable popularity among Hindus of the locality or among persons resorting to the annual mela. Worshipers are naturally welcome at a temple https://www.mhc.tn.gov.in/judis 27/36 A.S.(MD).No.197 of 2016 because of the offerings they bring and the repute they give to the idol: they do not have to be turned away on pain of forfeiture of the temple property as having become property belonging to a public trust. Facts and circumstances, in order to be accepted as sufficient proof of dedication of a temple as a public temple, must be considered in their historical setting in such a case as the present; and dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference if made from the fact of user by the public is hazardous, since it would not in general be consonant with Hindu sentiments or practice that Worshipers should be turned away; and as worship generally implies offerings of some kind it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity.” Following the aforesaid judgment the contention of the defendant that the general public would worship in the temple in question and hence it has to be declared as public temple is rejected, since Hindus generally do not turn away the people who come to worship and that by itself would not be sufficient to enable a determination that the temple in question is a public temple.
28. In the case of Kuppuswamy vs. The Commissioner HR & CE and another reported in 2011-1-L.W.351 and in the case of Commissioner, HR & CE and another Vs. Sri Ayyappa Baktha Sabha represented by its Secretary K.V.Thangappan Nair reported in (2011) 1 MLJ 971 the Court after referring to various pronouncements and after taking into account the definition of the terms “Religious Institution” as well as “temple” in the Act had held that the https://www.mhc.tn.gov.in/judis 28/36 A.S.(MD).No.197 of 2016 architecture of the temple, performance of Pooja, distribution of prasatham and even presence of hundials cannot make the temple to public, if it is otherwise private.
29. In the case of Sri Ayyappa Seva Samajam Vs. the Commissioner HR&CE reported in 2017 (1) CTC 212, the Court vide order dated 02.01.2017 had held as under:
“29. Upon considering the evidence on record, I am of the considered opinion that the vital ingredients namely, the dedication of the temple to the public and the fact that the public had the right to worship have not been established. Though certain factors like resemblance in architecture, distribution of prasadam etc. have been established, they are only indicating the factors and not determining the factors. The cardinal point namely, right of the public to worship has not been established. Even assuming that the statements made by the individuals that they had been worshiping the temple, as rightly pointed out by Mr.T.R.Rajagopalan learned Senior counsel, appearing for the appellant and as per the decisions of the Hon'ble Supreme Court, unless it is shown that such worship is of right, the temple in question cannot be considered to be a public temple.”
30. This Court had considered the similar issue in W.P.(MD)No.2327 of 2016 (Selva Rajakumar Vs. the Commissioner HR&CE and others) and vide order dated 25.04.2024 had held as under:
https://www.mhc.tn.gov.in/judis 29/36 A.S.(MD).No.197 of 2016 “From the above it is evident if the creator of the Trust is intended for himself and his family, then the same is sufficient. Incidentally if some public is benefited the same would not change the character of the Trust from private to public. While offering annadhanam, some public had taken the annadhanam will not change the character of the private trust. Further the public cannot claim the same as a matter of right and in the present case the public cannot claim annadhanam as a matter of right. Therefore, the twin test to determine private trust or public trust would be whether the donor had created for the benefit of himself, his family and relatives and if the answer is yes, then the same is private trust. Next test is whether the general public can claim as a matter of right and if the answer is no, then the same is private trust. In the present case, the twin test is in favour of the petitioner and hence the Subbiah Nadar Settlement is a private trust and the provisions of HR&CE Act has no application at all.”
31. In the present case the land belongs to the 52 families and it is not put up in any public land. There is no Hundials, no gopuram, no dwajasthambham, no procession of utasava idols, no vahanam, no palipeedam kept in temple. There is no evidence of dedication of the temple to the public. The management of the temple is being done by the said 52 families which is evident from the Ex.A1 Udambady. Though certain factors like resemblance in architecture, doing pooja, conducting festivals are only indicating the factors and not determining the factors. The cardinal point of right of the public to worship has not been established. Even assuming that the statements made by the individuals that they https://www.mhc.tn.gov.in/judis 30/36 A.S.(MD).No.197 of 2016 had been worshiping the temple, as rightly pointed out by the Learned Counsel appearing for the plaintiff and as per the decisions of the Hon'ble Supreme Court, unless it is shown that such worship is of right, the temple in question cannot be considered to be a public temple.
32. The next contention of the defendant is that in Tamil Nadu all temples are presumed to be public temple and the person claiming the temple is private ought to prove the same is private temple and relied on the judgment rendered in Hindu Religious and Charitable Vs. N. Sivarawajan Nadar reported in 2001 (2) CTC 513. But the said contention was refuted by the Learned Counsel appearing for the plaintiff wherein he had submitted that the issue was considered by the subsequent Division Bench in the case of the Commissioner, HR&CE Board, Nungambakkam and another Vs. T.S. Palanchamy and seven others reported in 2003 (1) CTC 65, wherein the Hon’ble Division Bench had clarified that the popular perception among the Courts to the effect that temples in South India except those are transferred from Malabar region are all presumed to be public temples and the burden of proving contrary is on the person who asserts is not correct, since the presumption on which the State wants to rely upon, is thus a presumption which had been wrongly assumed to exist by the misreading of the https://www.mhc.tn.gov.in/judis 31/36 A.S.(MD).No.197 of 2016 judgements delivered, way back in the year 1920. But the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1956 does not create any such presumption. The relevant portion is extracted hereunder:
“13. Thus the entire foundation for the assumption made that there is a presumption that all the temples in Madras Presidency are public is founded only on this statement of Seshagiri Aiyar, J. who did not decide the case before him on the basis of any presumption, but who after deciding the case with regard to the evidence placed before him, considered it necessary for him to make certain general observations to the effect that outside public have not established kattalais or built chatrams for private temples in southern India except Malabar.
14. The observations so made are clearly not to the effect that there is a presumption that the temples in the Madras Presidency are public temples.
What was actually said was that the Learned Judge and also the Counsel who appeared in the matter were not aware of cases where public had established kattalais or built chatrams for the accommodation of the travellers in private temples. The observation in AIR 1934 PC 230 that Seshagiri Aiyar, J. had stated that in the greater part of the Madras Presidency private temples are ‘practically unknown’ is factually incorrect.
15. The words Madras Presidency are not used in the observations of Seshagiri Aiyar, J. who referred to south India and who nowhere stated that there was such a presumption and who certainly did not invoke such presumption for deciding that case.
16…
20. The presumption on which the State wants to rely is thus a presumption which has been wrongly assumed to exist by the misreading of a judgment delivered way back in the year 1920. On appeal heard by the Privy Council from that judgment Privy Council did not refer to any presumption and the case was decided on the basis of the evidence adduced in the case. The judgment of Seshagiri Aiyar, J. was misread and was stated as the source of authority for a proposition which he had not laid down in AIR 1934 PC. The Privy Council in that case AIR 1934 PC 230 had no evidence on basis which lay down that the Court should presume that the temples in Madras Presidency are public temples.
https://www.mhc.tn.gov.in/judis 32/36 A.S.(MD).No.197 of 2016
21. It is evident that it is only the erroneous observation made in AIR 1934 PC 230 that has formed the foundation for the statement made in some of the judgments of this Court that there is ‘presumption’ or that the ‘law is well settled’ even when it is not, that the temples in greater part of Madras Presidency are public temples. The apex court in more than one decision has warned against reading observations in judgments as if they formed part of the statue. Such a warning has been administered in numerous cases and very recently in the case of Gangadhar Behera v. State of Orissa 2002 AIR SCW 4271, wherein it has been observed that, “There is always peril in treating the words of a judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case”
33. On perusal of the judgment rendered in N. Sivarawajan Nadar’s case it is seen that the Hon’ble Court had decided the case based on the presumption to the effect that all the temples in South India are presumed to be public temples, unless the contrary is proved. But the subsequent Hon’ble Division Bench judgment in the case of the Commissioner, HR&CE Vs. T.S. Palanchamy had rendered a categorical finding that it is only presumption and there is no statutory backing. Therefore, this Court is of the considered opinion that the contention of the defendant that in Tamil Nadu all temples are presumed to be public temple and the person claiming the temple is private ought to prove the same is private temple is only based on the presumption and judgment rendered in N. Sivarawajan Nadar case and other judgments rendered based on the said presumptions cannot be relied on.
https://www.mhc.tn.gov.in/judis 33/36 A.S.(MD).No.197 of 2016
34. For the reasons stated supra, this Court is of the considered opinion that the vital ingredients namely, the dedication of the temple to the public and the fact that the public had the right to worship have not been established. Therefore, the subject temple is only a private temple and is not coming within the provisions of Hindu Religious and Charitable Endowments Department. The judgment and decree passed by the Trial Court is confirmed and the present appeal is dismissed. No costs. Consequently, connected Civil Miscellaneous Petition is closed.
27.08.2024 NCC : Yes / No Index : Yes / No Internet : Yes Tmg https://www.mhc.tn.gov.in/judis 34/36 A.S.(MD).No.197 of 2016 To
1. The Principal Subordinate Court, Nagercoil.
2. The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 35/36 A.S.(MD).No.197 of 2016 S.SRIMATHY, J., Tmg Pre-Delivery Judgment made in A.S.(MD)No.197 of 2016 27.08.2024 https://www.mhc.tn.gov.in/judis 36/36