Madras High Court
P. Natesa Achar And Anr. vs Parasamaya Kolerinatha Madam, Through ... on 29 April, 1999
Equivalent citations: (1999)2MLJ585
JUDGMENT A. Subbulakshmy, J.
1. The appeal is directed against the judgment and decree passed by the learned single Judge in C.S. No. 2 of 1983. Defendants 1 and 2 in the suit are the appellants in this appeal. The plaintiff filed the suit for declaration and for delivery of possession.
2. The case of the plaintiff is as follows:
The plaintiff-mutt was established as early as 7th century A.D. in Tirunelveli. The members of the Vishwa Karma Community in Tamil Nadu and other southern states are the disciples of the plaintiff mutt. The first Madathipathi was one Sri Anavaratha Sounderraja Perumal Swamigal and the successors were elected by Vishwa Karma Community. In the beginning of the 20th century, disputes arose and hence a suit for framing a scheme for regulating succession and administration of the mutt and its properties was filed in O.S. No. 58 of 1922. A scheme was finally framed by order dated 2.5.1925. As per the provisions of the scheme, the Head of the Mutt is to be elected by the Viswakarma Community of Tamil Nadu and other adjoining areas in the erstwhile Madras State. Srimath Rajarathna Swamigal was unanimously elected as the Head of the plaintiff mutt and by order dated 10.9.1927, the Sub-Court, Tirunelveli declared the said Srimath Rajaratna Swamigal as the Head of the plaintiff mutt and directed vesting of the mutt and its properties including the suit property in the said Rajaratna Swamigal. Komaleeswaranpettai in the Madras City was largely inhabited by the members of the Viswakarma Community. So, the plaintiff mutt opened a branch in Chandra Banu Street, Komaleeswaranpettai in A schedule property. Till 17th century, the A schedule property was only a mutt intended for the stay of the Head of the plaintiff mutt whenever he visited the city. The disciples of the mutt were permitted to use the building for religious purposes. The mutt was in charge of a person belonging to the. Viswakarma Community of Komaleeswaranpettai, nominated by the Head of the plaintiff mutt. The said nominee is called Sri Karyam. Some other members of the Community were also appointed to help the mutt agent. In 18th century, the then Head of the plaintiff mutt was touring in Northern India. He desired to instal an idol of Visalakshmi with the same divinity as hallowed in Kasi. Tradition goes that Goddess appeared before him and directed him to instal a deity in the mutt of Komaleeswaranpettai. Accordingly, 200 years back, an idol for Goddess Meenakshi was installed in the mutt. Stone image of the Head of the mutt was also installed in the mutt. In course of time, idols of Lord Vigneswara and Lord Muruga with Valii and Deivanai were also installed in the suit property. So, from the 18th century, the mutt is having idols for the worship of its disciples. After installation of idols, more people were attracted and it became necessary to associate local people in the management of the affairs of the mutt. After the previous Madathipathi attained Samadhi on 9.12.1979, the present Madathipathi was elected on 21.9.1980 and installed on 17.4.1981. The previous Madathipathi appointed R. Venugopal Achari as his agent to manage the affairs of the mutt and temple. The movables described in B schedule were handed over to him. He was also asked to submit accounts every month. In July, 1982, the present Madathipathi visited Madras and sent for the said R. Venugopal Achari to enquire about the affairs. He met the Madathipathi and represented that he handed over the management to Thiru Kangasabapathy Achari who in turn handed over the management to Thiru P.Natesa Achari and Thiru T.R. Nataraja Achari, residents of Komaleeswararpettai and defendants 1 and 2. When the Madathipathi visited the mutt, the second defendant alone was present. The other defendants did not turn up. Though the A schedule property vests in the Madathipathi and has been under his control and management, the defendants have allowed R.Kanniah Pillai and others to publish a notice that Kumbabishekam would be performed on in the temple/in the A schedule property. The Madathipathi alone is entitled to arrange and perform'Kumbabishekam and without his knowledge and consent, Kumbabishekam has been arranged. The Madathipathi came to understand that defendants 1 and 2 developed an hostile attitude towards the head of the mutt and wanted to be independent. The suit property is the property of Parasamaya Kolerinatha Madam, Tirunelveli. It is primarily a mutt. Only the plaintiff has been controlling the affairs of the suit mutt and the temple. In the year 1981, the defendants have published notice for Navarathiri festival to be conducted. Only the plaintiff has got right in the suit property. Till recently, the plaintiff's right was not disputed. The defendants have no manner of right over the suit property. Hence, the suit is filed for declaration of title and right of management of the plaintiff to the suit property and directing the defendants to deliver possession of A and B schedule properties or deliver possession of A schedule property and pay Rs. 81,040 being the value of movables described in B schedule.
3. Defendants 1 and 2 filed written statement contending as follows:
The plaintiff mutt is governed by the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act (Act 22 of 1959) and the plaintiff has to agitate its rights only under the provisions of the said Act. These defendants have already filed a petition under Section 64(1) before the Deputy Commissioner to frame a scheme for the said Meenakshi Amman Temple in Komaleeswaranpet and it is pending in appeal before the learned Commissioner in "A.P. No. 27 of 1980. In the said proceedings, the plaintiff filed a petition under Order I, Rule 10 of C.P.C. and got themselves impleaded as parties. The character of the Institution has to be decided and the suit is not maintainable. Sri Meenakshi Amman temple situate in Chandra Banu Street, Komalees-waranpet, Madras-2 is a denominational one and it has been in existence for the benefit of Viswakarma Community living in Komalees-waranpet. There is no mutt existing in the area where the temple is located. The plaintiff mutt has no connection with the said temple and its properties. The defendants are the people belonging to the Community living in Komaleeswaranpet and were not parties to the scheme decree said to have been passed in the year 1927. The temple at Komaleeswaranpet is dedicated to Sri Meenakshi Amman and since Srimad Parasamaya Kolerinathaswamy was a great saint in the Viswakarma Community, the said temple is also usually called in the name of the said Swami. The temple itself was founded from and out of the personal efforts of the members of Viswakarma Community without taking any contribution from outsiders either for its construction or for its day-to-day management. There are about 80 houses of Viswakarma members residing in Komaleeswaranpet. Only for the exclusive worship by the Viswakarma Community, the temple was constructed by taking liberal donations from and out of the members of the said Community. The Community temple has always been under the management of the members of the Community through their elected representatives from time to time. The trustees and committee members are elected by the members of that Community. One Athimoola Achary was functioning as trustee and he was replaced by one Duraivelu Achari who was also elected by the Community people. In the year 1963, the Community has elected one Kangasabai Achary, a member of the Community to function as trustee in the Community temple in question. In the year 1969, the first and second defendant together with one Nithyananda Achariar were elected to function as trustees in the Community temple in question. The first and second defendants are the present trustees duly elected by the members of the Community at large. The suit temple is situate in the personal property of the Community in question. The entries in the permanent Land Register also clearly indicate that the temple belongs to the Community. The temple is possessing of three shops and getting a monthly rent of Rs. 89 which income is hardly sufficient for the routine expenses of the temple. A gurukkal was appointed by the members of the Community for monthly salary to perform daily poojas. The members of the Community used to collect funds from and amongst the members of the Community and carry on the day-to-day affairs of the institution. The suit property does not belong to the plaintiff mutt. It belongs to Meenakshi Amman temple. The suit property is not a mutt. The idol of Sri Meenakshi Amman and the stone image of the Swami were erected by the people of the Viswakarma Community living in Komaleeswaranpet and it has nothing to do with the plaintiff mutt. At no time, the plaintiff mutt exercised any control over the temple in question. One Venugopal Asary residing at Komaleeswaranpet wanted to take the temple property on lease for which the temple trustee and other people refused and so, out of personal enmity, the plaintiff appears to have created some self-serving documents. The plaintiff mutt neither had the authority nor did in fact appoint anybody as agent. The Madathipathis never visited Madras and they never enquired into the affairs of the temple. The entire Community members at Komaleeswaranpet have authorised the control and management of the temple and its properties by these defendants who are the elected trustees. The people of the Community at Komaleeswaranpet decided to perform Kumbabishekam in the temple on 21.1.1983 and accordingly, it was performed on that day with the blessings of His Holiness Sri Kanchi Kamakoti Peetadhipathi Sri Jayendra Saraswathi Swamigal who graced the occasion and presided over the religious functions on 20.1.1983. The suit property is a temple property and is not mutt. The Institution has got all the characteristics of a temple and not a mutt. The plaintiff has nothing to do with the suit property. The plaintiff mutt had never claimed any right over the suit property all these years. The movables described in the plaint schedule are all the properties of the temple. So, the suit has to be dismissed.
4. The learned single Judge decreed the suit as prayed for.
5. Aggrieved against the judgment and decree, defendant 1 and 2 have preferred the present original side appeal.
6. Points that arise for consideration are:
(i) Whether the plaintiff is entitled to declaration of title and right for management of the suit properties.
(ii) Whether the plaintiff is entitled to delivery of possession of A and B schedule properties.
(iii) Whether the suit is not maintainable as contended by the defendants.
(iv) Whether there is no mutt existing in the suit property and only a temple is located.
7. The plaintiff claims title to A schedule property as belonging to the plaintiff mutt which is situate in Tirunelveli. The plaintiff mutt was established as early as 7th Century A.D. in Tirunelveli, and the members of Viswakarma Community are its disciples. The vacancies in the post of trustees and committee members are filled up by election from among the members of the Viswakarma Community. In the beginning of 20th century, some disputes arose and O.S. No. 58 of 1922 was filed in Sub-Court Tirunelveli for framing a scheme for regulating succession and administration of the mutt and its properties. The scheme was framed in that suit by order dated 2.5.1925. As per the provisions of the scheme, the head of the mutt is to be elected by the Viswakarma Community people. An advocate Commissioner was appointed and election was held on 5.9.1927. Srimath Rajaratna Swamigal was unanimously elected and by order dated 10.9.1927 in O.S. No. 58 of 1922 of the Sub-Court, Tirunelveli, the said Rajaratna Swamigal was declared as head of the plaintiff mutt directing vesting of the mutt and its properties in the said Swamigal. One of the properties vested in the head of the mutt is the suit property described in schedule A. The suit property is item 2 of 5th schedule in O.S. No. 58 of 1922. Exs.P-1 and P-2 are judgment and decree in O.S. No. 58 of 1922. The plaintiff claims that as per the scheme decree in O.S. No. 58 of 1922, the suit property is vested in the head of the mutt. Ex.P-1 recites that there will be a preliminary decree declaring that the Parasamaya Kolerinatha Madam situate in Akkasalai Vinayagarkoil Street, Tinnevelly Town is a public religious and Charitable foundation for the benefit of the five sections of Viswa Brahmana Community of Tamil Districts of Southjndia as also in Travancore Cochine and British Malabar entitled to some of the plaint properties. Ex.P-2 final decree shows that the suit property is vested in the Madathipathi of the plaintiff mutt. The plaintiff claims the suit property which was originally a branch of the plaintiff mutt which was used mostly for the stay of the head of the mutt whenever the Madathipathi came to Madras. The plaintiff further states that in the 18th century when the head of the plaintiff mutt was touring north India, he felt that an idol of Visalakshi to be installed in the mutt premises and about 200 years ago, the idol of Goddess Meenakshi was installed in the suit premises by the then Head of the mutt and subsequently, the other idols, viz., Lord Vigneshwara, Lord Muruga with Valli and Deivayanai were installed and the people of Vishwa Karma Community were allowed to worship these deities in the suit premises. The plaintiff further states that as the Head of the mutt was having his stay permanently at Tirunelveli, he appointed some agents to manage the affairs of the suit property, where idols were installed, and previously one Venugopal Achari, and then one Kanagasabapathy Achari belonging to Viswakarma Community were looking after the affairs of the suit property and now, defendants 1 and 2 are managing the affairs of the same, but, only the plaintiff has got exclusive right over the suit property and defendants 1 and 2 are only managing the affairs of the suit property. On the other hand, defendants I and 2 contend that they are the trustees of Meenakshi Amman temple and the suit property is a temple and it has nothing to do with the plaintiff mutt and the temple was constructed by the Viswakarma Community people residing in Komaleeswaranpet and it is a denominational temple in existence for the benefit of the members of Viswakarma Community.
8. The defendants filed documents Exs.D-1 to D-42 pertaining to the period from the year 1938 to substantiate their contention that the suit property is a temple and the plaintiff mutt has nothing to do with that temple. In Exs.D-1 to D-10, it is stated as "Meenakshi amman Devasthanam". In Ex.D-1, it is stated as Devasthanam of Meenakshiamman located in Kolerinatha Swamigal mutt. Ex.D-3 Gurupuja Pathirikai also recites that Mahabishekam to Guruswami in the mutt of Meenakshiamman Devasthanam. So, even though there is mention of Meenakshiamman temple in these documents, there is also mention with regard to mutt and the temple being located in the mutt. In the plaintiff's documents, Exs.P-6, P-9, P-10, P-13, P-15 and P-17, it is mentioned as mutt and. Meenakshiamman temple. These documents go to establish that there were mutt and temple. Even though the term mutt is mentioned in the documents filed by the plaintiff and the defendants, the documents reveal that there is existence of temple and festivals are conducted in that temple. Ex.P-6, Navarathiri Mahotsava Pathrika recites that Abisheka Alankaram, Sodasobasara Deeparathanai and Dasami Utsavam were going to be conducted from 17.10.1963 and the devotees were requested to come and worship the deities. The names of Ubayakarthas are also mentioned in Ex.P-6, i.e., who performs Ubhayams during festival days for 13 days. Ex.P-6 was prepared by the Meenakshiamman Devasthanam. Ex.P-7 Gurupuja Pathirikai also recited that Abisheka Aradhanai was to be conducted for Meenakshiamman and also Gurupuja was to be conducted. Ex.P-8 receipt issued by Meenakshiamman Devasthanam shows that a sum of Rs. 3 as kovil kattalai was received from one Loganatha Achariyar of Perambur. Ex.P-8 was issued by the administrative trustee on behalf of Sri Meenakshiamman Devasthanam. Ex.P-9 invitation for navarathiri festival recites that navarathiri kolu was to commence from 27.9.1981 and there would be Abishekam and Alankaram for Sri Meenakshiamman and the devotees were requested to come and worship. The names of Ubhayakarthas were also mentioned in that. This invitation was prepared by the Meenakshiamman Devasthanam. Ex.P-12 receipt issued by the lorry conductor shows that he has received the lorry rent for taking articles in respect of Meenakshiamman temple. The invitations Exs.P-13 and P-14 also relate to Meenakshiamman Devasthanam. Ex.P-15 shows that Mandalabhishekam was done to Meenakshiamman in pursuance of Kumbabishekam. Ex.P-17 shows that Meenakshiamman Thirukalyanam was conducted in that temple. Ex.D-1 is the notice regarding appointment of trustee and committee members. In Ex.D-1, it is specifically stated that the key for Meenakshiamman Devasthanam and the affairs of the Devasthanam were handed over to the newly appointed trustee. It is further recited therein that after that function, and the pooja to Goddess Meenakshiamman, 'Vibuthi' and 'Kumkum' were given. The trustee has signed in Ex.D-1 as per the directions of the Devasthanam committee members. Ex.D-2 letter was given by the trustee of Meenakshiamman Devasthanam asking the committee members to attend to the Devasthanam work. Ex.D-3 Gurupuja Pathrika was also prepared as per the directions of the committee members of the Devasthanam. Ex.D-4 is the notice with regard to the resignation of the trustee. In Ex.D-5 also it is specifically stated as trustee of Meenakshiamman Devasthanam. Ex.D-6 recites that on 31.3.1938, one Adhimoolachary was appointed as the trustee and the committee members were also appointed and a meeting was to be convened with regard to that and the Viswakarma Community people had to attend that meeting. Ex.D-7, is the navarathiri mahotsava pathrika of Meenakshiamman Devasthanam relating to the year 1941 wherein the names of Ubhayakarthas are also mentioned. Thiru Adhimoolachary was the trustee for the Devasthanam at that time. Ex.D-7 also proves that only Meenakshiamman temple is situate in the suit premises and the navarathiri Utsavam has been conducted in that temple. Ex.D-8 is the Kanda Sashti Soorasamhara Utsava pathrika. In this also, Meenakshiamman temple and the names of the Ubhayakarthas are mentioned. Ex.D-9 is the resignation letter of the trustee wherein also Meenakshiamman Devasthanam is mentioned. Ex.D-10 the account book of Devasthanam shows the salary paid to Gurukkal of Meenakshiamman Devasthanam. Ex.D-11 letter sent by the office of the H.R.& C.E. Board, Madras shows that the trustees of the temple were directed to cause production of the account schedule of properties, audit report, lease deeds, etc. for faslis 1354 and 1355 i.e., 1.7.1944 to 30.6.1945 and 1.7.1945 to 30.6.1946 relating to the temple at the office of the Board at Nungambakkam on 22.8.1946 and also a statement of abstract of receipts and charges for faslis 1354 and 1355 duly verified and signed by the trustee. For that the trustee of Meenakshiamman temple has sent the section registers and the statement of receipts and payments. Ex.D-13 is the special notice issued by the corporation of Madras to the trustee of Meenakshiamman temple. Ex.D-14 is the quit rent receipt issued to the temple. Ex.D-16 relates to the appointment of the trustees. In that also it is stated as Meenakshiamman Devasthanam and the trustees of Meenakshiamman Devasthanam. Ex.D-17 list relating to handing over of Devasthanam articles to the trustees of Meenakshiamman Devasthanam also shows that only temple is situate in the suit property. The trustees have also intimated the Assistant Commissioner, H.R. & C.E., Madras, under Ex.D-19 that they had taken charge of the trusteeship of Sri Meenakshiamman temple of Komaleeswaranpet. After the appointment as trustees, they have informed the H.R. & C.E. Board regarding their appointment. Ex.D-20 dated 26.3.1946 shows that one Kuppuswamy Chettiar had agreed to attend to the repair work of Rajagopuram, Karpakruka gopuram, compound wall of the temple of Meenakshiamman Devasthanam and the repair work of pillaiar mandapam and for white-washing and for that he received Rs. 5. Ex.D-21, is the advice slip issued by the Madras Electricity System to Meenakshiamman temple. Ex.D-22 is the resignation letter given by Kanagasabapathy. It recites that he has handed over the trusteeship to Brahmath Nithyanandha Achary and tendered his resignation. He has also requested the said Nithyanandha Achary to do 'seva' to deity of Meenakshiamman and also to inform the other committee members with regard to the new trusteeship. Ex.D-23 is the notice of prosecution issued by the Assistant Revenue Officer, Corporation of Madras to the trustee of Meenakshiamman temple with regard to the property tax. Ex.D-26 is the certificate issued by the Tahsildar wherein also it is mentioned as Meenakshiamman temple. Ex.D-26 reveals that it was an extract from the permanent land register. In Ex.D-26 in the column revenue payable, it is stated that, "To be held rent free so long as the land is used for the purpose of the temple" and the name of the owner is mentioned as C.V.Raju Achari Dharmakartha of the time being of Meenakshiamman temple. Ex.D-27 was also issued to the Dharmakartha of Meenakshiamman temple. Ex.D-27 is an extract from the permanent land register. Ex.D-28 is the letter given by Tamil Nadu Viswakarma Mahajana Central Association to Natesa Achariar wherein also the term temple is mentioned. Ex.D-29 is the book containing list of articles in possession of the temple. In Ex.D-29, the names of Moola Murthi's are mentioned as Sri Meenakshiamman Moolavar, Sri Chokanathar, Vinayakar, Thandapani, Veerapathirar, Nagaprathistai, Kali Amman, Kolerinatha Swamy, Dhwaram Ganapathy, Shanmugam Ammans Navagrahas, Simham, Balipeedam and Dwajasthambam. Ex.D-29 also recites that, Meenakshiamman of the temple, Vinayakar, and Subramanay Murthy's along with Valli and Deivanai. Ex.D-29 list also contains, the names of jewels, vessels, etc. It also recites that the Archakar should reside in the backyard of the temple and he should put up a shed at his own expenses and he should spend for electrification at an expense of Rs. 150 and that amount has to be reimbursed by Devasthanam. It is also stated in Ex.D-29 that income for this temple is from the two shops adjacent to the temple and the rent from the godown in the backyard and income from the hundial. The recital in Ex.D-29 is that this temple was found by the Viswakarma Community and the idol of Meenakshiamman is there with 'Prabhai" of that Goddess.
9. The exact version found in Ex.D-29 is extracted below:
10. Ex.D-31, Kandar Sashti Festival notice also recites as Meenakshiamman temple. The names of Ubhayakarthas are also mentioned therein. Ex.D-32 Navarathiri Mahotsava Pathirika also recites that during Navarathiri festival, there will be Alankaram and Deeparadhanai to Goddess Meenakshiamman. The names of Dharmakarthas are also mentioned therein. That notice was prepared by the then Dharmakartha of Meenakshiamman Temple. Ex.D-33 is the notice with regard to convening a meeting in that Meenakshiamman temple. Under Ex.D-34, the Urban Land Tax Office has issued notice to the then Trustee of Meenakshiamman temple relating to Urban Land Tax. Ex.D-36 is the letter sent by the Assistant Commissioner, H.R. & C.E. to the Trustee of that temple which shows that in the suit premises, Meenakshiamman Temple is in existence. Ex.D-3 7 is the office copy of the letter sent by the Managing Trustee of Sri Meenakshiamman Temple to Thiru P.M. Natarajan of Adyar. Ex.D-37 recites that the said Natarajan undertook the construction of nine sculptures in the kolu mandapam of Sri Meenakshiamman temple and the sculptures are (1) one Gajalakshmi sitting in the Lotus (2) two elephants (3) two ladies (with Vensamaram) (4) two Yali's all these above the main entrance of the Garba Graha (5) two gate keepers (Dwarapalakars) each one by the side of the entrance of the Garba Graha to an height of approximately 5 feet and he undertook to construct a canal starting from outside wall of the Garba Graha and to come around in a clock-wise direction and that the materials for the construction will be supplied by the temple trustees and the said Natarajan also undertook to plaster the inner wall of the kolu mandabam facing the opposite side of the entrance which is the outer side of the Garba Graha and the said Natarajan had also agreed to attend to that work and received the payment. The temple has again written letter to the said Natarajan under Ex.D-38 with regard to the nature of the construction. Ex.D-39 is the receipt issued by Sthapathi P.M. Natarajan for the advance received by him for the construction work in the Gopuram and for other construction works and for installation of 76 Dolls (Bommai's) Exs.D-40 and D-41 are the demand notice under Section 92 of the Tamil Nadu Act 22 of 1959. These notices were issued to Meenakshiamman Temple for payment of contribution and audit fee due to the Commissioner. Ex.D-42 is the printed invitation for the Kumbabishekam of Meenakshiamman. The documents filed on the side of the plaintiff and the defendants pertaining to the period from 1938, prove that Meenakshiamman temple is in existence for over a long period and poojas are being conducted.
11. Counsel for the appellants submitted that the suit property is a place of worship founded for the Viswakarma Community and the trustees are also elected from that Community people and the suit institution possesses all the characteristics of a temple and poojas are conducted daily and as the public is also coming and worshiping in that temple and festivals are being conducted, the suit institution clearly falls under the definition of temple and it does not constitute a mutt and the plaintiff has no right over the suit property. He further submitted that the temple is in existence in the suit property for a long period and it is not at all pertaining to mutt and so, the plaintiff's claim is not at all sustainable. He has also submitted that Ex.P-2 final decree does not confer any title on the plaintiff and the scheme itself was framed with regard to the appointment of Madathipa this and that will not entitle the plaintiff to declare the institution as belonging to the plaintiff mutt and as there is existence of the temple for more than 100 years, the suit property is only a temple and not a mutt.
12. Counsel for the respondent/plaintiff submitted that the suit property belongs to the mutt and by virtue of the scheme decree under Ex.P-2, Srimath Rajarathna Swamigal was unanimously elected as Madathipathi of the said institution and he was declared as Madathipathi and the properties of the said institution, described therein including the suit property vested with him and he appointed some agents to look after that property and the Madathipathi was staying in the suit property whenever he was on tour and so, the suit property belongs to the plaintiff mutt. The Evidence of P.W.2 is that the Madathipathi was staying in the temple premises. Later, he has stated that he does not know as to whether actually he was staying in the temple premises. P.W.2 has further stated that he did not verify any records as to whether the suit property belongs to the plaintiff mutt. P.W.3 does not know with regard visit of the Head of the mutt prior to 1960. The plaintiff is also not able to produce any record to show that the plaintiff has been administering the suit property. Even though P.W.3 has stated that there are some documents to show that the suit property belongs to the mutt, those documents were not filed before the court. The plaintiff has not fled any documents to show that only the plaintiff is entitled to the suit property and is administering the mutt. The evidence of D.W. 1 is that he was told by the elders that there was a mutt about 200 years back and in the permanent land register, the property stands in the name of the trustee of the temple and in the main place in the temple, there is Amman idol and idols of Ganapathy, Sri Valli Subramaniam and also a small idol of Meenakshiamman and Gurukkal is doing poojas and a house was also constructed by the temple for that Gurukkal and the Upayadharargal spend for the festivals. He further states that the Viswakarma Community in Komaleeswaranpet were administering the temple and during the visit of the Head of the mutt in the year 1982, he was honoured as per the temple formalities. So, the evidence of D.W. 1 is that the suit property is a temple and the plaintiff is not entitled to the suit property. "Math" is defined under Section 6(13) of the Tamil Nadu H.R. & C.E. Act as a Hindu religious institution with properties attached thereto and presided over by a person, the succession to whose office devolves in accordance with the direction of the founder of the institution or is regulated by usage and
(i) whose duty it is to engage himself in imparting religious instruction or rendering spiritual services; or
(ii) who exercises or claims to exercise spiritual headship over a body of disciples; and includes places of religious worship or instruction which are appurtenant to the institution;
Section 6(2) of the said Act defines the term "temple" as a place by whatever designation known, used as a place of public religious worship, and dedicated to, or for the benefit of, or used as of right by, the Hindu Community or of any section thereof, as a place of public religious worship;
So, the crucial point for determination is whether the suit property is a mutt or a temple.
13. A perusal of the documents amply go to establish that in the suit property, there is a temple and it possesses all the characteristics of a temple. The quit rent receipt was issued in the name of the temple and repairs have also been done for the Garpo graha, Rajagopuram and Kumba-bhishekam was also done as evidenced by the documents. All the documents amply prove that the suit property is a temple and festivals are being conducted and Hindu Community people go and worship in that temple. In the case of Tulasiram v. Ramprasanna A.I.R. 1956 Ori. 41, it was held that, Where an institution in its origin is a math, it cannot be treated as a temple merely because the trustee consents to its being so treated. A math includes a place of religious worship other than a temple; it is a place for rendering charitable and religious services in general. The distinction is that there may be idols in a math but it is not a place of public religious worship.
14. Counsel for the respondent/plaintiff submitted that if the suit property is to be held to be a temple, the property must stand in the name of the deity and that being absent, it cannot be considered as a temple.
15. The quit rent receipt. Permanent land register and other documents stand in the name of Meenakshiamman temple and the trustee for the time being. So, those documents go to establish that only the trustees of the temple were dealing and managing the property. The trustees were managing the properties and they were also collecting donations and periodically conducting poojas, navarathiri kolu, etc., In the case of Vidyapurna Thirtha Swami v. Vidyanidhi Thirtha Swami 14 M.L.J. 105. It has been observed that, In the case of mutts the ideal person is the office of the spiritual teacher (Acharya) which, as is it were, incarnate in the person of each successive Swami who for the time is a real owner and not a mere trustee.
The plaintiff has not discharged the burden of proving that the suit property belongs to the mutt. On the other hand, the documents filed on the side of the plaintiff and the defendants go to establish that the suit property is only a temple and public go and worship in that temple. The Apex Court has laid down in its decision, in the case of G.G.V. Narashima Prabhu v. Assistant Commissioner H.R. & C.E. , that, the temple was one dedicated to or for the benefit of a section of the Hindu Community and as such was covered by the definition in Section 6(17). The law is now well settled that the mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right.
In the decision A. Palaniandi Pilial v. Commissioner H.R. and C.E. Madras 93 L.W. 12, it has been laid down that, From the evidence of P. Ws. 1 and 2, it is seen that the Melatheri Chetti Community in the town of Padmanabhapuram is a separate religious denomination and the Community or Samudayam owns the temple absolutely and it is managing the temple by donations from the members of that Community. This managements dates back to 1913. The documents referred to supra are more than 30 years old which support the case that the temple was in the management of the Samudhayam for over 30 years exclusively and there is absolutely no evidence contra to show that any other religious group either contributed or managed the temple.
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The evidence amply proves that the Samudayam alone has right in the temple even though the Hindus in that place generally visit the temple for worship. Therefore the temple in question will have only sectional character and is entitled to a declaration that the suit institution belongs to the religious denomination called Thalakulam Melatheru Chetti Samudayam.
In the decision Swami Harbansa Chart Ji v. State , it has been held that, Math in ordinary language signifies an abode and residence of ascetics. In legal terminology, it connotes a monastic institution established for the use and benefit of ascetics belonging to a particular order. It is presided over by a superior. The Hindu Maths were for the first time established by Shankar. Math is clearly distinct from the other religious trust known as Debuttar, the essential element of which is a deity or an idol. The presiding element in a math is an ascetic or religious teacher. With his disciples and co-disciples, he forms a spiritual family. Both these institutions owe their existence to grants of property made by pious benefactors. In the case of Debuttar, the grantee is an idol. In the case of Math, the beneficiary of fraternity of religious men headed by superior or Mahant represents the entire institution. The primary object of Debuttar is to perpetuate the worship of a deity. Since the preceptors of this monastic institution (Math) combined only high standard of spiritual knowledge with moral purity, large grants of land were made in their favour by princes and noblemen. The worship of God was not excluded if it was essential as a part of the religious teaching of a particular Math. It cannot, however, be said that there cannot be a Math without an idol. In case of a temple or a shrine of deity, a property vests in the idol as a juristic person. In case of a Math, a property does not vest in the Mahant as it vests in the idol.
This Court has held in T.V. Durairajulu Naidu v. The Commissioner H.R. & C.E. Madras, 99 L W. 630, that, The founder had built this Sri Ramar Madalayam. According to him, it was built as a charity for the salvation of his soul. He dedicated the same to the public and required under the will to use as a temple and a mutt. Nothing more is necessary than this unequivocal dedication for the public to enjoy as of right. In several places he uses the word "Sannadhi"; firstly with regard to the honours, secondly with regard to the lighting during pooja days, offering prasadam and distribution of the same, the cooked rice being distributed as Prasadam.
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The presence of idol is solely unnecessary and this Mutt in question should answer the definition of "temple".
If a sense of reverence is created by the place in the belief that God resides there or if an edifice devoted to divine worship, that would be enough to attract the definition of "Temple" under Section 6(2) of the Act. In other words, it is a sense of reverence that is very important. It may be stated that this very definition has been repeated under the Act right from Act 2 of 1927, again in Act 19 of 1951 and also the present Act (Tamil Nadu Act 22 of 1959). Nowhere the requirements as are ordinarily expected of a temple are insisted upon. It is faith that it is the abode of God that matters. It is that compelling faith, that by offering prayers, one will be the object of bounty, that is important. 1 consider these elements being present in this case.
A Division Bench of this Court has held in Nallakarupan v. Commissioner H.R. & C.E. , that, number of families constituting the section in each case was adequate and sections were sufficiently distinctive, in whose favour dedication must necessarily be inferred. Both the temples were, therefore, "public temples" within the definition of Section 6(17) especially in the absence of any evidence of any intention to exclude the right of the outsiders to worship in the temples.
The Apex Court has held in Sri Vishwothama Thirtha v. State of Mysore (1962) 2 M.L.J. 464, that, The Shri Krishna Mutt in Shivalli Village in South Kanara District, is a temple as defined in Section 2(1) of the Madras Temple Entry Authorization Act, 1947. In the absence of good evidence that temple is a private one, the mere fact that it is visited by a large number of persons among the Hindu a public without any restraint for a number of years, will be good evidence of the fact that the temple had been dedicated to the Hindu public and was for its benefit. On the evidence the institution in suit is neither a Mutt nor a temple appurtenant to a Mutt.
In the above decision, it has been observed by the Apex Court that the finding that "the Hindu public had a right to worship in this temple is sufficient to make the institution a temple within the definition of that term in the Act (Madras Act V of 1947), even if the temple be appurtenent to a Mutt."
It has been laid down by the Supreme Court in Narayan v. Gopal , that, The question of intention to dedicate the place for the use of the public or of the user by the public, being as of right is necessarily a matter for inference from the nature of the institution and the nature of the user and the way the institution had been administered. Once a long course of user by the public for the purpose of worship is established, and the fact of a separate endowment in trust for the deity is also proved, it is fair to infer that the institution must have been dedicated for user by the public (unless the contrary is established) - Particularly when the character of the temple, its construction, the arrangement of the various parts of the temple and the nature of the deities installed there are similar to what obtains in admittedly public temples. Similarly, when user by the public generally to the extent to which there is a worshipping public in the locality is established, it is not unreasonable to presume that the user by the public was as of right, unless there are circumstances clearly suggesting that the user must have been permissive or that the authorities in charge of the temple have exercised such arbitrary power of exclusion that it can only be ascribed to the private character of the institution.
A Division Bench of this Court has held in Ramaswamy Naidu v. Commissioner H.R. & C.E. (1974) 2 M.L.J. 133, that Where it is clear that by long usage and acceptance the public were visiting a temple and performing poojas therein and participating in the processions and daily poojas, this by itself raises a very strong presumption against the private character of the temple. The existence of Moolasthanam, Mahaman-dampam, Prakaram, idols of Chief and other deities, uthsavamoorthis, daily poojas, special poojas and procession during Navarathiri festival, worship by the local belonging to different communities are all factors which positively give the undoubted impression that the temple is a public one.
16. The oral and documentary evidence prove that the temple was founded for the Viswakarma Community and is being managed by the trustees elected by the Viswakarma Community and the performance of poojas and conducting of festivals for over a long period clearly establish that the suit property is only a temple. The documents referred to supra are of more than 60 years old which support the case of the defendant that the suit property is a temple and it was managed by the trustees elected from the Viswakarma Community people exclusively. For festivals, the Upayadharars spend for conducting festivals during the festival seasons. The temple has also been repaired and Kumbabhi shekam was also done. It is also borne out by evidence that there is Dwajasthambams and garbagrahas. in that temple. The expenditure for the temple is borne by the rental income of the two shops and also the hundial amount. These things establish the status of the suit institution as temple. No documents is filed by the plaintiff to establish that the suit property belongs to the mutt. The plaintiff is not able to prove by acceptable evidence that the suit property is only a mutt property and mutt alone is being carried on there. There is also no evidence to show that the suit property is place for rendering charitable and religious services. The Orissa High Court in Tulasiram v. Ramprasanna A.I.R. 1956 Ori. 41 has made a distinction between "temple" and "mutt". It has observed that there may be idols in a math, but it is not a place of public religious worship. In the instant case, it has been amply established by the oral and documentary evidence that festival are being conducted and daily poojas are also being performed by the Gurukkal and it possesses all the characteristics of a temple.
17. The learned single Judge has found that even assuming for argument sake that the idol of Goddess Meenakshi was installed by the Viswakarma Community people of Komaleeswaranpet, in the suit property, that will not give them any right over the suit property because the suit property is a property of the mutt and the installation of the idol of the Goddess and worshipping of that Goddess cannot extinguish the right of the plaintiff mutt or create new right for defendants 1 and 2 or anyone living in Komaleeswaranpet. The documents filed plaintiff and by the defendants clearly prove that the suit property is only a temple. The quit rent receipt Ex.D-14 stand in the name of Meenakshiamman temple. Exs.D-26 and D-27 also prove that the land and the suit property are registered in the name of the trustee of Meenakshiamman temple for time being. The learned single Judge has found that all these documents cannot extinguish the right of the plaintiff and the prescription right is claimed by the defendants. The H.R. & C.E. Department has also sent communication to the temple to produce its accounts and accordingly the accounts were also produced. The oral and documentary evidence go to establish that the suit property is only a temple and not a mutt. When there is ample documentary evidence to prove that the characteristics of this institution is of a temple, we find that the reasoning and conclusion arrived at by the learned Single Judge that the installation of Goddess Meenakshi cannot extinguish the right of the plaintiff mutt cannot be held to be sustain-able.
18. Counsel for the appellant further submitted that in a suit filed under Section 92, C.P.C., there cannot be a declaration decree and as the defendants are not parties to that suit, that judgment and decree Exs.P-1 and P-2 are not binding on the defendants. The decision in Khaja Hassanulla Khan v. Royal Mosque Trust Board (1947) 1 M.LJ. 395 : I.L.R. 1948 Mad. 257.
A decree passed in a suit filed under Section 92 of the Code of Civil Procedure framing a scheme is binding on all and it prevents every person, whether a party to the suit or not, from asserting in a subsequent suit rights which conflict with or attack the scheme.
The scheme decree is a judgment in rem and is binding on all.
19. Counsel for the plaintiff submitted that the suit property is vested in the Madathipathy and the plaintiff mutt is entitled to the suit property. He stressed on the words "vesting". A Full Bench of the Allahabad High Court has dealt with the word "vest" and has held in Uma Shankar v. Salig Ram , that, As the word "vest" not only includes vesting of possession but vesting of other right too, that is intangible or abstract right, a direction under Section 92(C) can be given vesting the right of management and office and all other incidental rights related thereto in favour of the shebait, who is the trustee of the endowed property. Inasmuch as Clause (cc) (as inserted in 1956) relates to an order directing possession to be given to trustees from erstwhile trustees, directions regarding possession must be held to be covered by Clause (cc).
In the instant case the scheme decree was framed with regard to the appointment of madathipathi under Ex.P-2 and a direction is given that the suit property and other properties vest with the madathipathi. The decree under Ex.P-2 is a scheme decree under Section 92, C.P.C. Section 92(c) relates to vesting of property in a trustee. Under Ex.P-2, the appointment of madathipathi was ordered and thereby vesting the property in him. Merely vesting of the property in the madathipathi does not in any way constitute title in favour of the plaintiff in as much as there is no proof entitling the plaintiff to the suit property. Absolutely there is no acceptable evidence to prove that only the plaintiff mutt is entitled to the suit property and it is under the management of that mutt.
20. The oral and documentary evidence amply establish that the Viswakarma Community people alone have got right in the temple and it is managed by the trustees elected from along the Viswakarma Community people and they are doing Upayams during the festivals. Even though other Hindus also do Upayams for the festivals, the Viswakarma Community people, through the trustees, managed the temple and there is public religious worship. A perusal of the entire evidence goes to establish that the characteristic of mutt is absent in the instant case as there is public worship in the suit institution and as festivals are being conducted. So, it can be safely concluded that the suit institution falls within the definition of temple under the H.R. & C.E. Act.
21. In the instant case, it has been amply established by oral and documentary evidence that in this institution, there is religious worship by the public and poojas, archanas and navarathiri festivals are being conducted in the temple and the suit institution possesses all the characteristics of a temple. Applying the principles laid down by the Apex Court, we hold that the suit institution is a temple. The judgment and decree passed by the learned Single Judge is liable to be set aside.
22. In the result, the original side appeal is allowed setting aside the judgment and decree passed by the learned Single Judge, C.M.P. 1596 of 1994 is closed. No costs.