Madras High Court
Sri Chennapuri Devanga Sangham vs The Commissioner on 11 June, 2010
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.06.2010 CORAM: THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH A.S.No.414 of 2000 and C.M.P.No.185 of 2009 Sri Chennapuri Devanga Sangham, By its President, K.Sambiah .. Appellant/plaintiff Vs. The Commissioner, HR & CE Department, Chennai-34. .. Respondent/Defendant Prayer:- This appeal filed under Section 96 of C.P.C against the Judgment and Decree of the V Asst. City Civil Court, Madras in O.S.No.9169 of 1992 dated 28.08.1999. For Appellant : Mr.A.Venkatesan For Respondent : Mr.M.R.Murugesan, (Spl.G.P. For HR & CE.) JUDGMENT
This appeal is preferred against the judgment and decree passed by the lower Court in O.S.No.9169 of 1992 dated 28.08.1999. The plaintiff before the lower Court is the appellant herein who lost the case filed before the lower Court under Section 69 of HR & CE Act, challenging the order passed by the Commissioner in A.P.No.73 of 1990 dated 10.4.1992.
2. The brief facts of the case of the plaintiff before the lower Court would be as follows:-
2(1) The plaintiff is a society registered under the Central Act XXI of 1860. Sri Kannikalamma Temple situate at No.3, Namasivaya Mudali Street, Korukkupet, Old Washermenpet, Madras600 021 was founded and established by Devanga Community in the property owned by K.Alavandar Naidu and K.Venkatapathy Naidu and the property is maintained by Hindus.
2(2) The members of the Devanga Community residing at Madras formed themselves into a Society in the name of Sri Chennapura Devanga sangham, subsequently registered under the Central Act XXI of 1980.
2(3) The membership for the said sangham Society is open exclusively to the members of the Devanga Community. K.Alavandar Naidu and K.Venkatapathy Naidu, who were the owners of the land, on which the temple was founded, executed an agreement and registered the same as Document No.4438 of 1975 dated 16.06.1975 providing therein that the President and Treasurer of the Plaintiff's sangham would be Ex-officio President and Treasurer of the temple and also that in the circumstances the management of the Temple came to be vested ultimately with the Plaintiff sangham.
2(4) The Plaintiff therefore sought a declaration under section 63(b) of the Act, before the Deputy Commissioner, Hindu Religious and Charitable Endowment (Administration Department) Madras 34 in O.A.No.58 of 1985, as the founder of the Temple and Managing the temple in conformity with the line of succession, to specifically provide for that the founder is a hereditary trustee within the meaning of Section 6(11) of the Act. The Deputy Commissioner by his order dated 18.12.1989 in O.A.NO.58 of 1985 dismissed the application, on the ground that the temple had no property, that it is not maintained by the member of a particular community and that it is maintained from and out of the interest received from the deposits made by the members of the Devanga Community and that the plaintiff sangham came into existence only after the formation of the temple. The plaintiff contended that all these findings are baseless, contrary to facts and evidence adduced. The plaintiff therefore filed an appeal before the defendant under Section 69 of the Act in A.P.No.13 of 1990.
2(5) The defendant by its order dated 10.04.1992 dismissed the appeal on the ground that the owner of the Temple is not traceable, that the temple was not founded by the Devanga Community, and that the plaintiff is not a hereditary trustee within the meaning of Section 6(11) of the Act.
2(6) The Plaintiff hence obliged to file this suit under Section 70 of the Tamil Nadu Act XXII of 1959, to set aside the order of the defendant in A.P.No.73 of 1990 dated 10.04.1992.
2(7) The Plaintiff filed the documentary evidence marked as Ex.A1 to A5 and examined the President as P.W.1 before the Deputy Commissioner. The defendant has not correctly appreciated the scope of the oral and documentary evidence adduced before the Deputy Commissioner. In the agreement dated 16.06.1975, marked as Ex.A3 before the Deputy Commissioner, it is clearly recited that the suit temple is called the "Kanny Kalagudi", that the owners of the land are not the owners of the temple and that the members of the sangham by virtue of their office as president and members of the society, are members of the committee to maintain the temple and its affairs. The plaintiff therefore state that the plaintiff is the hereditary trustee of the temple under Section 6(11) of the Act.
2(8) The suit is a statutory action filed under Section 70 of the Tamil Nadu Act. The office of the defendant, whose order is sought to be set aside, is situate within the jurisdiction of this Court. Hence this Court has jurisdiction to try this suit. The suit is to set aside an order of the Commissioner, Hindu Religious and Charitable Endowment Administration Department, under Section 70 of the Act, has been filed.
The plaintiff therefore prays for a judgment and decree : -
i. Setting aside the order of the defendant made in A.P.No.73 of 1990 dated 10.04.1992.
ii. In consequence thereof, declaring that the plaintiff is the hereditary trustee of the "Kannikalamma Temple" at No.3, Namasivaya Mudali Street, Korukkupet, Madras 600 021.
iii. Grant such further or other relief or reliefs as may be deemed fit and proper by this Court herein with regard to the facts and circumstances of the case.
3. The contentions of the defendant as mentioned in the written statement would be thus:-
3(1) The defendant denies all the averments contained in the plaint and states that they are incorrect and misleading. According to the plaintiff, the agreement made and executed by Tvl.K.Alavandar Naidu and K.Venkatapathy Naidu, who were the owners of the land on which the Temple was founded, given provision that the management of the Temple came to be vested ultimately with the plaintiff sangham is denied. The said agreement dated 16.06.1975 was marked as Ex.A3 before the Deputy Commissioner, HR & CE Administration Department, Madras 34 in O.A.No.58 of 1985, in which Tvl.K.Alavandar Naidu and K.Venkatapathy Naidu were called as 'first' party and 'second' party and 7 others were called as third party, fourth party, fifth party, sixth party, seventh party, eighth party and ninth party. In paragraph 2 of this agreement it is stated that the parties and 2 others who belong to Naidu Community, are the owners of the Temple. In paragraph 2 of the agreement it is stated that the President and Treasurer of Devanga sangham shall be the members of the committee by virtue of their office in the sangham and shall cease to be members of the Committee on their ceasing to hold the said offices and their successors in office shall become ex-officio members of the Committee. Parties 5 to 7 belongs to 'Devanga Caste', Party 8 belongs to 'Balaja' caste, and party 9 belongs to Brahmin Caste. In paragraph 4 of the agreement it is stated as follows : -
"And whereas parties 3 to 9 have approached the owners and offered to effect necessary repairs and improvement to the Temple and its surrounding land and make necessary additional constructions thereon and also to collect donations and build up a reserve fund for the permanent upkeep of the Temple and the surrounding building when erected, which fund shall also be utilised for the purpose of promotion and dissemination of Hindu Religion among the masses who are religious inclined." It has thus been proved that the plaintiff sangham is not entitled to claim any sole right over the suit temple. In fact different caste took part in the affairs of the Temple. These grounds are unsustainable both in law and on facts.
3(2) Arulmighu Kannikalamma Temple situated at No.3, Namasivaya Mudali Street, Korukkupet, Old Washermanpet, Madras-21 is a public religious institution within the meaning of Section 6(20) of the Tamil Nadu HR & CE Act 1959 (Tamil Nadu Act 22 of 1999), "hereinafter called the Act" and coming under the control of the HR & CE Administration Department. The contention of the plaintiff is that the plaintiff sangham is the hereditary trustee of the suit temple founded by the members of the plaintiff sangham is false. The defendant submits that the statements of the plaintiff are controvertial plea. According to them, the suit Temple was founded in the land owned by Tvl.K.Alavandar Naidu and K.Venkatapathu Naidu and being established by the Devanga Community people, residing at Madras. In the meanwhile they formed a society in the name of Sri Chennapuri Devanga sangham and subsequently registered under the societies Registration Act on 16.05.1958 (Central Act XXI of 1860) Tvl.K.Alavandar Naidu and K.Venkatapathy Naidu who were the owners of the land on which the Temple was founded have dedicated the Temple and executed an agreement, providing therein that the President and Treasurer of the plaintiff sangham would be the Ex-officio President and Treasurer of the Temple, so that the management of the Temple came to be vested ultimately with the plaintiff sangham. When the Assistant Commissioner, HR & CE Administration Department Madras had issued a notice in RC.No.5252/82 A3 dated 20.07.1982 calling for explanation as to why non hereditary trustees should not be appointed for the suit temple, the plaintiff sangham had filed an Original Application under Section 63(b) of the Act, before the Deputy Commissioner, HR & CE Administration Department, Madras to establish their hereditary right over the temple. The said application was dismissed by the Deputy Commissioner in this order dated 18.12.1989 in O.A.No.58/85. Aggrieved by the said order the plaintiff sangham has filed an appeal petition before the Commissioner HR & CE Administration Department, Madras under Section 69(1) of the Act which was also dismissed on 10.04.1992 in A.P.No.73 of 1990. Against that order, the plaintiff has filed this present suit in O.S.No.9169 of 1992 before this Court. This defendant denies all the averments contained in para 6 to 8 of the plaint and states that they are incorrect and misleading. The averments that the plaintiff sangham is the hereditary trustee of the suit temple is incorrect. The plaintiff's claim before the statutory authorities has become futile. The plaintiff sangham has failed to prove their case before the statutory authorities. The documents Ex.A.1 to A5 filed before the Deputy Commissioner HR & CE Madras in the earlier proceedings are not in any way helpful to the plaintiff. Ex.A1 is the certification of Registration of Societies under Act XXI of 1860 to show that 'Sri Chennapuri Devanga sangham was registered in S.No.55 of 1958 on 16.05.1958. Along with it, memorandum of affiliation' of the said sangham has been appended as Ex.A2. At the heading it is mentioned that it was established in the year 1942. The objects of the sangham are enumerated under the heading 3 objects. The object relevant to the decision to be arrived at is extracted, "To help and manage, as a managing body, the affairs of Sri Kapila Vinayaka Temple." The name of the suit Temple is not found. The beneficiary of the sangham is only Arulmighu Kapila Vinayagar Temple and not the suit temple. Hence the plaintiff is not entitled to the prayer sought for.
3(3) Though the plaintiff sangham has filed documents Ex.A1 to A5 before the Deputy commissioner HR & CE Administration Department Madras, the plaintiff has failed to prove its case. This defendant submits that Ex.A1 is the certification of Registration of Societies under Societies Registration Act, there was no mention about the name of the suit Temple in the memorandum of affiliation of the plaintiff sangham which has been appended as Ex.A2. Ex.A3 reveals that not only the Devanga Caste but also other caste like Balija Naidu and Brahmins are also entitled to be the members of the committee and beneficiaries of the sangham. Ex.A4 is the notice issued by the Assistant Commissioner, HR & CE Madras34 in RC.No.5252/82 A3 dated 20.07.1982 calling for explanation as to why non hereditary trustees should not be appointed for the Temple because the suit temple is public one participated by all caste of Hindu Public. Ex.A5 is the reply by the plaintiff sangham against the notice. Therefore Exs.A1 to A3, the documents filed by the plaintiff sangham, were also proved futile. The plaintiff has miserably failed to prove his case.
3(4) Though the name of the suit temple is called as 'Kannikal Gudi' in the agreement dated 16.06.1975 made by Tvl.K.Alavandar Naidu and K.Venkatapathy Naidu, it is also stated in the agreement that the above said persons, who belong to Naidu Community, are the owners of the Temple and the Brahmins are also participated. It is further stated in the agreement that the President and Treasurer of Devanga sangham shall be the members of the Community by virtue of their office in the sangham. As stated in para 6, the people belongs to Balija Naidu and Brahmin who are different classes are also entitled to be the members of the sangham. The defendant further submits that since the parties 1 and 2 as mentioned in para 6 of the agreement dated 16.06.1975 (Ex.A3) will represent the owners of the property and in case of vacancy by death or retirement or either of them, the survivor in the continuing party will have the right to nominate party 1 and 2 and this will clearly prove that party 1 and 2 i.e. Tvl.K.Alavandar Naidu and K.Venkatapathy Naidu are having absolute right over the suit temple and that the plaintiff cannot over rule. Further para 7 of the agreement stipulates that the parties 3 to 9 will ever question the title of parties 1 and 2 representing the owners of the property and paragraph 8 makes it obligatory on the parties 3 to 9 to maintain proper accounts for the collection and expenditure of the temple and the accounts will be open to inspection of all the parties in the agreement. Para 14 empowers parties 1 and 2 to remove the persons responsible for acts of misfeasance, malfeasance and misappropriation and paragraph 15 provides for nomination in the vacancies arising from any parties 3 to 9, from among the members of the Devanga Community or from public to take place pending vacancy. Paragraph 16 provides that the audited balance sheet shall be sent to parties 1 and 2, and paragraph 17 prescribes that the committee consisting of parties 1 to 9 shall meet as and when necessary at the temple premises to discuss the subjects arising for the administration of the property.
3(5) The defendant submits that the suit is false, frivolous vexatious and hence it is liable to be dismissed with costs.
4. The lower Court had entered the trial by examining PW1 on the side of the plaintiff and had admitted Exs.A1 to A5 in support of the claim of plaintiff and had admitted Ex.B1 on behalf of the defendant. After appraising the evidence on either side, the lower Court had dismissed the suit filed by the plaintiff. Aggrieved by the said judgment and decree passed by the lower Court, the plaintiff had preferred the present appeal under Section 70 of the HR & CE Act. The appellant has also filed an application under Order 41 Rule 27 of C.P.C for reception of additional evidence.
5.C.M.P.No.185 of 2009:- The appellant has also filed CMP.No.185 of 2009 seeking permission to receive the amended bye-laws of the appellant's sangham as additional evidence.
The averments in the affidavit to the petition run as follows:- Sri Kannikalamma Gudi situated at Door No.3, Namassivaya Mudali Street, Korukkupet, Old Washermenpet, Madras 600 021 is Denominational temple belonging to the Devanga Community and its origin is not known. The temple has been constructed in the land belonging to M/s.Alavandar Naidu and Venkatapathi Nadu, but has been exclusively managed and looked after only by persons belonging to the Devanga Community. On 16.06.1975 an agreement was entered into between the owners of the land Alavandar Naidu and Venkatapathi Naidu and Devanga Community people, in and by which the land owners are confirmed and agreed to the Devanga Community people to continue to manage the affairs of the suit temple. However in order to see that funds are mobilised for repairing, renovating and improving the suit temple, whose origin was not known to the two respectable persons hailing from Balija Naidu Community and Brahmins Community, they joined as parties to the agreement so that they will also put forward efforts in mobilising funds. However the temple being belonging to Devanga Community, it has been managed and administered both before and after the agreement dated 16.06.1975 only by persons belonging to Devanga Community till date.
5(A) While matters stood thus, the Assistant Commissioner HR & CE Department took proceeding on 31.07.1982 intending to interfere with the management of Devanga Community, called upon the petitioner to submit returns, accounts etc., As the temple is a denominational temple under the management of petitioner / appellant sangham and not a public temple falling within the preview of HR & CE Act 1959, the petitioner sangham filed an application under Section 63(b) of the Act in O.A.No.58 of 1985, praying for a declaration that the petitioner's sangham is a hereditary trustee within the meaning Section 6(11) of HR & CE Act 1959. The said O.A.No.58 of 1985 was dismissed on wrong premises and appeal filed by us before the Respondent Commissioner in A.P.No.73 of 1990 was also dismissed on wrong grounds. We were therefore obliged to file a statutory suit in O.S.No.9169 of 1992 before the V Assistant Judge, City Civil Court, Madras as per Section 70 of the HR & CE Act 1959. The said suit has also been dismissed on unsustainable grounds and therefore we have been obliged to file the above A.S.No.414 of 2000 before this Court and the said appeal is pending.
5(B) Among various reasons put forwarded by the HR & CE Department and the learned trial Court in dismissing the suit, one ground upon which the suit has been dismissed is that the bye-laws Ex.B1 did not refer to the management of the suit temple Kannikalamma Gudi and it refers to the management of Sri Kapila Vinayaka Devasthanam. This finding came to be made on the basis of Ex.B1 which is the Unamended Bye-law and not in existing Amended Bye-laws. It is no doubt true that, the then president of the sangham by mistake came to file the unamended Bye-laws which refer only to the management of Sri Kapila Vinayaka Devasthanam, but not the suit temple, Kannikala Gudi.
5(C) The then president of the sangham had committed the mistake, inadvertently in not filling the Amended Bye-laws both before the Deputy Commissioner, Commissioner and learned trial Court. Evidently the Amended Bye-laws which the suit temple Kannikalamma Gudi also came to be included for the purpose of management by the petitioner / Appellant sangham. Since the present body of the sangham has assumed the office recently this application for reception of the Amended Bye-Laws as additional evidence under order XLI Rule 27 of Civil Procedure Code is filed.
5(D) The non filing of amended bye laws by the petitioner Sangham before the Deputy Commissioner, Commissioner and the Trial Court is not willful or due to the negligence, but due to the 'bona fide' mistake on the part of the previous President of the petitioner Sangham who conducted the proceeding earlier. The interest of the petitioner's Sangham should not suffer by reason of such mistake and in the interest of justice this Court has got every jurisdiction to receive the amended bye-laws as additional evidence. The respondent will not prejudiced in any manner by this Court allowing us to file the amended bye-laws as additional evidence as otherwise both the temple and petitioner Sangham will be put to serious prejudice, hardship and irreparable loss.
6. Heard Mr.A.Venkatesan, the learned counsel for the appellant/plaintiff and Mr.M.R.Murugesan, Spl.Govt.Pleader HR & CE appearing for the respondent.
7. On a careful perusal of the pleadings, evidence produced before the lower Court, the judgment and decree passed by the lower Court, the grounds raised in the appeal memo and the argument advanced on either side, this Court could see that the following points would emerge for consideration.
1.Whether the plaintiff/appellant sangham has to be declared as the hereditary trustee as per Section 6(11) of the Act, to the suit temple ?
2.Whether the order of the defendant made in A.P.No.73 of 1990 in respect of the suit temple is liable to be set aside ?
3.Whether the application in C.M.P.No.185 of 2009 seeking permission to receive additional evidence is allowable ?
4.Whether the judgment and decree passed by the lower Court are liable to be set aside and is the appeal allowable ?
5.To what relief the appellant is entitled for ?
8. For convenience, the ranks of parties before the lower Court is maintained infra.
9. The learned counsel for the appellant / plaintiff would submit in his argument that the lower Court erred in upholding the order of the defendant passed in A.P.No.73 of 1990 dated 10.04.1992 questioned by the plaintiff and the reasons stated by the lower Court that two people hailing from other communities Balija Naidu and Brahmin were also in the committee to administer the temple and therefore, the plaintiff cannot be declared as hereditary trustee are incorrect. He would further submit that the plaintiff sangham is a Devangar sangham governed by its own memorandum of association which would state that the people from Devangar community alone can become its members and the mere inclusion of two more persons belonging to different community in the agreement made by the sangham with the owners of the land Mr.K.Alavandar Naidu and Mr.K.Venkatapathi Naidu, produced as Ex.A3, will not take away the character of the plaintiff sangham. He would further submit in his argument that the memorandum of association of the plaintiff would contain its objects to manage the affairs of Shri.Kapila Vinayaga Devasthanam and Kannikalamma Gudi temple. This would clearly establish the right of the plaintiff's sangham over the management of the affairs of the suit temple. He would further submit in his argument that the right of the management of the suit temple given by the owners of the land to the plaintiff sangham conferred in the agreement Ex.A3, would establish that the plaintiff sangham is having the right to claim the Hereditary Trusteeship for maintenance of the suit temple. He would further submit in his argument that the other two persons mentioned in Ex.A3 agreement namely Mr.T.Ramakrishna belonging to Balija Naidu community and Mr.A.Narasimmarao belonging to Brahmin community were the elders interested in the temple and were residing in the said area and their inclusion would not take away the right of management given to the plaintiff sangham in Ex.A3. He would further submit in his argument that the parties mentioned in the agreement as 3 and 4 would cease to be the members of the committee when they were ceased to be the President and treasurer of the plaintiff sangham and it would show that the president and Treasurer of the plaintiff sangham's are continuing to be the members of the committee, who are in the management of the suit temple.
10. He would again submit in his argument that the lower Court as well as the defendant, the Appellate Authority failed to appreciate this point in Ex.A3 in order to find that the plaintiff sangham is in management of suit temple and thus entitled to whole hereditary trusteeship. He would further submit that the right of management of the suit temple was predominantly conferred only to the Office Bearers of the plaintiff sangham and the presence of few members of some other community will not take away the character of the committee to maintain the suit temple as one belonging to Devangar community.
11. He would further submit that the definition of Hereditary Trustee under Section 6(11) of the Act would also include the persons by usage, who are performing the functions of management as regulated by the founder of the suit temple. The founders have given authority to the plaintiff sangham and others to maintain and administer the temple and therefore, the plaintiff sangham ought to have been declared by the lower Court as the Hereditary Trustee of the suit temple.
12. He would again submit in his argument that the office bearers of the plaintiff sangham have been categorically made to succeed to manage the affairs of the temple by the founders in Ex.A3 and the said evidence was not appreciated by the lower Court. He would also submit that the directions given by the owners of the land in Ex.A3 to the effect that the funds of the temple shall be in the custody of the President and Treasurer of the plaintiff's sangham and shall be deposited in the name of Devangar Kannikalamma Gudi temple account in any one of the recognised banks which shall be operated jointly by the President and Treasurer, which would show the intention of the owners' to keep the plaintiff sangham in a predominant position of the management over the affairs of the suit temple. He would also submit that the said fund was entrusted with the committee appointed for management, consisting the President and Treasurer of the Devangar sangham and therefore, there is no impediment for the plaintiff sangham to be declared as hereditary trustee. Moreover, he would also draw the attention of the Court that the owners of the land in Ex.A3, made out clear that in the case of mal-administration by any of the parties 3 to 9 mentioned therein, the owners, namely first and second parties are entitled to remove such persons and entitled to fill up of those persons in the plaintiff sangham and therefore, the plaintiff sangham was given powers of nominating persons which would show the predominance of the sangham in administration.
13. He would also submit that the entire collection of funds and the expenditure incurred for the maintenance of the suit temple was done by the plaintiff and as per the usage and specific stipulation by the founder, the plaintiff sangham should be declared as hereditary trustee. He would further submit in his argument that in the place of the parties No.8 and 9 nominated in Ex.A3, the plaintiff sangham had nominated its members as per the provisions of the scheme in Ex.A3 and therefore, the plaintiff sangham is having the authority to administer and maintain the suit temple absolutely and therefore, the plaintiff sangham should be declared as the hereditary trustee. He would also submit that the plaintiff's sangham has not claimed ownership but had claimed the right of management through the declaration of the hereditary trusteeship as per the scheme promulgated by the owners of the land and there is no impediment for the authority as well as the Court to declare the plaintiff sangham as the hereditary trustee.
14. He would also submit that the defendant did not adduce any evidence contra to the evidence of the plaintiff and the proof placed by the plaintiff that the suit temple was a private temple and the plaintiff was holding the administration and maintenance of the suit temple is unaffected and the defendant had failed to prove that it is a public temple and therefore, the plaintiff's claim should not have been dis-allowed by the lower Court. He would further submit that when the defendant had not disputed the maintenance of the suit temple by the office bearers of the plaintiff sangham, and its failure to prove that it is a public temple, the plaintiff sangham ought to have been declared as the hereditary trustee of the suit temple. He would draw the attention of the Court that the fluctuating body like the plaintiff can also be declared as hereditary trustee of any temple under Section 6(11) of the Act, coupled with Section 6(22) of the Act. He would cite the judgment of the Hon'ble Apex Court reported in AIR 2004 SCC 3634 between The Commissioner HR & CE Madras Vs. Vedanda Sthabana Sabha in support of his case. For the said principle, the judgment of this Court reported in 1997 (2) LW 151 between Commissioner HR & CE Madras Vs. Vedanda Sthabana Sabha has also been cited in support of his case. He would also draw the attention of the Court to yet another judgment of this Court reported in AIR 1997 Madras 96 between State of Tamil Nadu and another Vs. P.S.R.Shenbagamurthy Nadar and others for the similar proposition.
15. The learned counsel for the plaintiff would further submit in his argument that the suit temple being a private one and it was established through the evidence adduced on the side of the plaintiff and in such circumstances it should have been declared as a private temple being managed by the distinguished section of people namely Devangar Community as a denominational temple. He would also cite a judgment of this Court reported in AIR 1976 Madras 26 between Thanumalai Perumal Mudaliar Vs. The Commissioner HR & CE Madras. He would further submit in his argument that the evidence of PW1 would go to show that the construction of the temple was done at the lands of private Naidu persons by the Devangar samoogam people and therefore, it has to be declared that the temple belongs to the said community. He would further submit that the said temple does not bear any praharam, gopuram, flags or hundi collecitons and no idols were taken out in possession and no outsiders are permitted and the report of the Inspector produced was also in favour of the plaintiff sangham.
16. He would also submit that no other communities claim any right over the management or proprietorship of the suit temple and therefore, the suit temple is flawlessly a private temple, managed and administered by the plaintiff sangham. He would further insist in his argument that if for any reason this Court is finding that the evidence produced on the side of the plaintiff is lacking, the defendant has not produced adequate evidence to come to any conclusion, the matter may be remanded to lower Court for fresh disposal. Further he relied upon a judgment of this Court made in (2008) 2 MLJ 829 in between P.K.Duraisamy Vs. Commissioner HR & CE, Chennai in support of his case. Therefore, he would request the Court that the decision of the lower Court that the plaintiff sangham has not established to be the hereditary trustee of the suit temple, has to be set aside and the appeal has to be allowed and thus the suit filed before the lower Court has to be decreed. In any event he would plead that the appeal may be allowed and the case may be remanded to the lower Court for fresh disposal, if the Court feels that the evidence produced on either side are not sufficient.
17. The learned counsel for the respondent Mr.M.R.Murugesan, special Govt.Pleader, would submit in his argument that the suit has been filed by the plaintiff sangham, a registered society represented by its president K.Sambiah, to which there is nothing in bye-law produced in Ex.B1 that the President or the Treasurer could file the suit against the parties. He would further submit in his argument that the President's duty was only to preside over the functions and therefore, the suit filed by the plaintiff sangham represented by its president is not maintainable.
18. He would further submit in his argument that in Ex.B1 memorandum of the plaintiff sangham, it has been mentioned that the object of the sangham was for the benefit of general public and if the beneficiaries are un-ascertainable, and unidentifiable, it will become the public purpose and it cannot be treated as a private one. He would submit in his argument that the plaintiff sangham was registered in the year 1980 only, whereas the agreement stated to have been entered with the owners of the temple in Ex.A3 was in the year 1975. Therefore, the society which was registered subsequent to the said document is a different one and the plaintiff sangham cannot step into the shoes of the said sangham, which entered the agreement with the owners of the temple.
19. He would further submit in his argument that the lower Court was correct in coming to the conclusion as to the question whether the plaintiff sangham was entitled to Hereditary Trusteeship under Section 63(B) of the Act in the proceedings before the defendant, but the plaintiff had virtually changed the proceedings under Section 63(a) of the Act to which the lower Court is not concerned.
20. He would further submit in his argument that the plaintiff sangham had not founded the temple and the founder of the temple or the ancestors of the said persons were not mentioned as No.1 and 2 parties in Ex.A3 and the plaintiff sangham was not the owner of the temple nor built the temple. He would submit that even according to the plaintiff they have renovated and put up additional construction and any-body can do the renovation work and the founders are only entitled to nominate any person to manage the properties and the persons who are shown as parties 1 and 2 were not the founders but only the descendants of the said ancient temple and they have no power to delegate or assign the administration or management of the said temple.
21. He would also submit in his argument that even according to the bye-laws, the Secretary can represent the plaintiff Sangham and the agreement entered into between the sangham and the third party in Ex.A3 should have been signed by the Secretary of the sangham. He would further submit in his argument that the plaintiff did not adduce any evidence to show that the temple, even prior to Ex.A3, was managed by the sangham and the said agreement in between the owners of the temple and the sangham in Ex.A3 had also not mentioned anything about such management prior to the said agreement. He would also submit in his argument that the persons who alleged that the temple is a private temple should have come forward with an evidence to establish the same and it is not for the defendant to prove that the temple is a public one.
22. He would cite a judgment of this Court made in 2003 (3) CTC 607 for the principle that the onus is on the person who alleges certain facts to be true. He would also submit that the plaintiff has miserably failed to prove that the suit temple was a private one by adducing evidence through reliable witnesses. He would further submit in his argument that the plaintiff sangham being a registered one ought to have submitted returns to the authorities concerned, but no such accounts has been produced before the Court to show that the plaintiff sangham was in management of the suit temple. He would further submit that the sabha can become a Hereditary Trustee under Sections 6(11) and 6(22) of the Act, as per the judgment of the Hon'ble Apex Court reported in AIR 2004 SC 3634, however, in the said case, the sabha was formed prior to the construction of the temple and the sabha itself had constructed the temple and claimed the trusteeship whereas, the plaintiff in this case is claiming management by virtue of a grant given by the successors of the founders of the ancient temple to which the said proposition may not apply. He would further submit in his argument that the suit temple was an ancient temple and the plaintiff sangham was not admittedly, the founder of the said temple and it raised the claim of management only in Ex.A3 to which the section 6(11) or 6(22) of the Act, would not be applicable. He would also submit that the plaintiff sangham could at best, along with other persons nominated in Ex.A3, ask for appointment of non-hereditary trusteeship of the suit temple, if it is proved to be a private temple. He would also submit that the plaintiff sangham was constituted as per the memorandum of the said association in Ex.A1 for social purposes and not for any religious purposes and it is not the owner of the temple nor it had founded the temple since the temple of this nature is aged more than 250 years. The right alleged to have been claimed by the plaintiff sangham in the year 1975 through Ex.A3 will not clothe with any right of Hereditary Trusteeship to the suit temple to the plaintiff sangham. He would further submit that even according to Ex.A3, the President and treasurer of the Devangar samoogam would be ex-officio members of the committee along with two other members of non-devangar samoogam as mentioned as parties 3 to 9 in Ex.A3 and how, the plaintiff sangham alone lay its claim as hereditary trustee for the suit temple. He would therefore, submit that the order passed by the defendant which was up-held by the lower Court it need not be set aside and therefore, the appeal may be dismissed with costs.
23. I have given anxious thoughts advanced on either side. It is better to apply the arguments of either side on point wise.
Point Nos. 1 & 3:
The defeated plaintiff sangham preferred the present appeal. The plaintiff has asked for declaring itself as a hereditary trustee of the suit temple namely Sri Kannikalamma Temple situate at No.3, Namasivaya Mudali Street, Korukkupet, Old Washermenpet, Madras600 021. The said application filed for that purpose before the Dy.Commissioner, HR & CE was dismissed and therefore, the plaintiff preferred an appeal petition before the defendant in A.P.No.73 of 1990 and the defendant had also dismissed the said appeal confirming the order passed by the Dy.Commissioner, HR & CE that the plaintiff's sangham was not entitled to be declared as the Hereditary Trustee of the suit temple. Against which, the suit was filed by the plaintiff before the lower Court under Section 69 of the Act to set aside the order passed by the defendant in A.P.No.73 of 1990 and to declare the plaintiff sangham as hereditary trustee defined under Section 6(11) and 6(22) of the Act. The said suit was tried by the lower Court and the lower Court found that the plaintiff sangham was not entitled to be declared as the hereditary trustee of the suit temple namely Arul Mighu Kannikalamma Temple (hereinafter referred to as suit temple).
24. The claim of the plaintiff would be that its President and Treasurer were given with the management of the suit temple in Ex.A3 by the owners of the temple and the said sangham was in management and administration of the temple by collecting funds from its members and from the income derived therefrom, the temple was administered by the plaintiff sangham. As per Ex.A3, agreement executed by the said owners of the land and temple as parties 1 and 2 and the president and treasurer of the plaintiff sangham as parties 3 and 4 and other persons belonging to Devangar samoogam, Balija Naidu and Brahmin communities arraying as parties 5 to 9 in the agreement, have formed a committee consisting of the president and the treasurer of the sangham were given management and accordingly, the said temple was renovated and its affairs are being managed by the sangham.
25. The main contention of the defendant would be that the plaintiff sangham was not in existence at the time of entering into an agreement Ex.A3 and it had been formed only in the year 1980 and therefore, the plaintiff sangham, a registered society in the year 1980, cannot claim any benefit under Ex.A3. The fact that the plaintiff sangham was registered in the year 1980 was not denied. Furthermore, Ex.B1 produced on the side of the defendant would show that it was registered only in the year 1980, However, the evidence of plaintiff would go to show that the registered society was in existence even during 1975 as an unregistered society and it had entered into an agreement in Ex.A3. Even, if the unregistered society is considered to be in existence and entered into an agreement with the owners of the temple, whether the said agreement would confer any exclusive right of management to the plaintiff sangham has to be seen.
26. At this juncture the contentions made by the defendant that fluctuating body cannot held as a hereditary trustee, should also be considered. According to the judgment of this Court reported in 1997 (2) LW 151 between Sri Vedanda Sthabana Sabha, Nanganallur Vs. The Commissioner, HR and CE, Madras-34, it has been held that a sabha is entitled to hold the office of trusteeship as a hereditary trustee. The said judgment of this Court was affirmed when questioned before the Hon'ble Apex Court, as it has been held in the judgment of the Hon'ble Apex Court reported in AIR 2004 SC 3634. Therefore, we could see that the sabha or association can become a hereditary trustee. However, it has been argued by the learned counsel for the defendant that the nature of facts discussed in the said judgment are different, when compared with the facts of this case. According to the submissions made by the learned Special Govt. Pleader (HR & CE), the sabha had constructed the temple of its own after its formation but in this case, plaintiff sangham is claiming to be in management from the successors of founders of an ancient temple. For the purpose of better understanding and appreciation we have to go through the provisions of Section 6(11) of the Act, which would run as follows:-
6(11)."hereditary trustee" means the trustee of a religious institution, the succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by the founder, so long as such scheme of succession is in force;
The said provision contains three limbs, as hereunder viz.,, (1) The succession of the office devolves as hereditary right; or (2) is regulated by usage ; or (3) is specifically provided for by the founder so long as such scheme of succession is in force.
27. It is not a case of the plaintiff that the succession to the office was flown to him hereditarily. It claimed the right to be specifically provided by successors of its founder under Ex.A3. The plaintiff also claimed it to be by the usage. As regards the third limb is concerned, we have to see whether the plaintiff sangham can claim the hereditary trusteeship by virtue of the conferment made under Ex.A3. Ex.A3 is an admitted document relied upon by the plaintiff. Admittedly, the plaintiff sangham was not in existence as a registered society at the time of Ex.A3. It claimed that it was in an unregistered form on the date of Ex.A3 and the plaintiff sangham had taken the management by virtue of and under Ex.A3. According to Ex.A3 agreement, it has been categorically mentioned in para 2 that the parties No.1 and 2 namely Shri.K.Alavandar Naidu and Shri.K.Venkatapathi Naidu represented the owners of Sri Kannikalamma Temple with the land surrounding the same more particularly described in the said agreement. In the said agreement it is further stated in para 4 of Ex.A3 as follows:-
"4. AND WHEREAS Parties 3 to 9 have approached the owners and offered to effect necessary repairs and improvements to the temple and its surrounding land and make necessary additional constructions thereon and also to collect donations and build up a reserve fund for the permanent up-keep of the temple and the surrounding buildings when erected, which fund shall also be utilised for the purpose of promotion and dissemination of Hindu Religion among the masses who are religiously inclined."
28. In accordance with the aforesaid ingredients of the paragraphs 2 and 4, we can see that the parties No. 1 and 2 were the owners of the land and the temple which was already in existence in the said property and the parties referred as 3 to 9 in the agreement. Ex.A3, approached them for making repairs and improvements of the temple and to put necessary additional constructions. This would clearly show that there was a land and the temple already in existence and the parties 3 to 9 approached the owners. From the said mentioning, we could see that the parties 3 to 9 were given management as per Clause-9 of Ex.A3 from the said date only. There is no question of any management or administration of the said temple with land belonging to the parties No.1 and 2 said in Ex.A3 prior to the said agreement Ex.A3. We could also see that as per Clause-9, the administration of the temple were handed over to parties 3 to 9 by the parties No.1 and 2.
29. According to the arguments advanced by the learned counsel for the plaintiff that the office of management has been predominantly vested with the President and Treasurer of the plaintiff sangham since it was directed to be in-charge of the funds of the temple in the name of Devangar sangham Kanni Kalamma temple and bank account to be operated jointly by the President and Treasurer under the provisions of Section 6(11) of the Act.
30. Whether this reference in clause (9) of the agreement would give exclusive management to the president and treasurer of the plaintiff sangham has to be considered. When we peruse Clauses-14 and 15 of the agreement, we could see that in case of misfeasance and malfeasance of the funds administered by the parties 3 to 9, the owners namely parties 1 and 2 were having power to remove the persons responsible for the aforesaid act and the power of nominating persons in their place is given to the Devangar sangham, provided such members may be from its members or from the public. Therefore, it could be easily understood that the participation in the management is not restricted only with the parties 3 to 9, referred in Ex.A3 but the public can also participate in the event of misfeasance or malfeasance of funds is found and proved against the persons who are in charge of its management. Therefore, it could further seen that the president and treasurer who are responsible for the funds of the temple, if found guilty, can be removed and in their place any member of Devangar samoogam or public may be nominated by the said Devangar sangham. Therefore, when there is a possibility for the public be participated as one of the members of the committee, is it possible to hold that the plaintiff sangham could be declared as a hereditary trustee on the delegation of management done by the parties 1 and 2 of Ex.A3 and would it be a scheme of succession specifically provided by the founder as mentioned in 6(11) of the Tamil Nadu HR & CE Act 1959. Admittedly, the parties No.1 and 2 had not founded the suit temple and they were the owners of the land and the temple was already in existence in the said land. The evidence of PW1 would go to show that it is also an ancient temple to which the founder of the temple cannot be located. Whether the persons described as parties No.1 and 2 in Ex.A3 as owners of the land and temple could provide a scheme of succession as mentioned in Section 6(11) of the Tamil Nadu HR & CE Act 1959.
31. The learned counsel for the plaintiff / appellant submitted in his argument throughout that the parties No.1 and 2 in Ex.A3 are the founders. The said submission was totally unacceptable, since the admitted case of the plaintiff would be that the temple was an ancient one. Therefore, the scheme provided in Ex.A3 cannot be treated as formulated by the founders of the suit temple as per law.
32. Even it is construed that it is formulated by the founders of the temple could the plaintiff sangham in its unregistered status, be granted with the exclusive management is also to be considered.
33. On a careful scrutiny of Ex.A3, we could see that there was a committee formed for the management of the temple which consisted of parties 3 to 9 also. According to Ex.A3, parties 3 to 9 are Shri.Pinchala Venkateshwarulu, President of Devangar sangham, Shri.Kumbala Sathyanathan, Treasurer of Devangar sangham, Shri.B.Ayyalyya, Devanga, Shri.Saravanabavulu, Devanga, Shri.Munuswamy, Devanga Shri.T.Ramakrishna, Shri.Balija Naidu and Shri.Narasimma Rao, Brahmin. Therefore, we could see that apart from the president and treasurer of Devanga sangham representing the said sangham, 5 more parties have been added to the committee for administration of the temple, in which, 2 of the parties are belonging to Balija Naidu and one from Brahmin community, despite, the remaining other parties are belonging to Devangar samoogam. It is also found that a person from other community can be inducted as one of the parties to administer the management of the temple by virtue of Clauses-14 and 15 of the agreement. Therefore, it has not been designed by the parties No.1 and 2, the owners of the suit temple and land gave the management exclusively to Devangar samoogam, even though the funds are directed to be managed and maintained by the president and the treasurer. Therefore, we could see that the delegation of management by owners of the suit temple and land, would not provide any exclusive management for the plaintiff sangham.
34. If it is not so, whether the plaintiff sangham could derive the management from 1975 onwards through the regulated usage as mentioned in 2nd limb of section 6(11) of the Act. As far as this aspect is concerned, the plaintiff has not produced any documentary evidence to prove that the sangham was in exclusive management of the suit temple from 1975 onwards. As rightly pointed out by the learned Special Govt. Pleader, HR & CE, no accounts maintained by the plaintiff was produced as required under Societies Registration Act. Even, it is taken that the plaintiff sangham was in continuous management of suit temple from 1975 till 1980 as un-registered society and thereafter as a registered one under the Societies Registration Act, till the date of plaint, this period would not be sufficient to hold that by a long usage, the plaintiff sangham established the management of the temple by long usage. It is settled law through various judgments of this Court that usage would give right to any party, if it is held for atleast a century. In the present case, even the said management was not proved from 1975 to till date of plaint to the exclusion of other parties appointed as committee members in Ex.A3. No such evidence has been adduced on the side of the plaintiff and other parties were not interested and nor were they added as parties in any of the proceedings.
35. In the aforesaid circumstances, the plaintiff sangham cannot sustain a claim for hereditary trusteeship, in respect of the suit temple. It has been discussed by the defendant in its order Ex.A1 in this aspect and the lower Court also upheld the order passed by the defendant.
36. Viewed from in any angle, the plaintiff sangham has not established the case for hereditary trusteeship but had ventured into the claim for a denominational temple to which this Court cannot give any findings on that aspect.
37. A futile attempt was made for receiving the amended bye-laws of plaintiff sangham for proving that the object of the plaintiff sangham was also for maintaining the suit temple. Moreover, it has also been sought to receive the said document by stating that the suit filed by the plaintiff sangham is maintainable. Since the bye-law does not refer to the maintenance of the suit temple, the lower Court did not rely upon the said bye-law solely for the dismissal of the suit filed by the plaintiff sangham. The mere reference made in the said bye-law about the maintenance of the suit temple, would not in any way give right to the plaintiff sangham to declare it as hereditary trustee of the suit temple.
38. Moreover, the said bye-laws produced for being received as additional evidence have been amended on 15.08.1985, which is after the filing of the suit. No such previous bye-law existed on the date of filing of the suit has been produced. Moreover, the reception of the said bye-law produced in the application specially filed under Order 41 Rule 27 C.P.C. will not in any way helpful to this Court to reach a conclusion and thereby to set aside the judgment of the lower Court. Therefore, it is not helpful for this Court to come to a conclusion, which was already decided by other evidence and circumstances of the case. Therefore, the said document is not necessary for being received by way of additional evidence, in this appeal.
39. For the foregoing discussion, it is held that the plaintiff sangham cannot be declared as 'hereditary trustee' of the suit temple. Accordingly, these points are decided against the appellant/plaintiff.
Point No.2:
40. In view of the discussion held in point No.1 that the plaintiff is not entitled to the declaration sought for as the hereditary trustee for the suit temple as per the definition under Section 6(11) of the Act., the orders passed by the defendant in his proceedings in A.P.No.73 of 1990 refusing to declare the plaintiff as the hereditary trustee of the suit temple, is not liable to be set aside. The said judgment and decree passed by the lower Court confirming the order of the defendant is also un-assailable. Therefore, the order passed by the defendant in A.P.No.73 of 1990 dated 10.04.1992 is found sustainable. Accordingly, this point is also decided as against the appellant / plaintiff.
Point No. 4:
41. In view of my findings reached in point Nos. 1 to 3 that the plaintiff sangham cannot be declared as the hereditary trustee of the suit temple and the orders passed by the defendant in refusing to declare the plaintiff as hereditary trustee in his proceedings in A.P.No.73 of 1990 is not liable to be set aside, the judgment and decree passed by the lower Court, in the suit confirming the order of the defendant passed in the said proceedings cannot be set aside, but are confirmed. Therefore, the appeal preferred against the judgment and decree passed by the lower Court by the appellant / plaintiff is not allowable and is liable to be dismissed. Accordingly, this point is also decided against the appellant / plaintiff.
Point No.5:
42. In view of my findings reached above, the judgment and decree passed by the lower Court, in dismissing the suit filed by the plaintiff are confirmed and the appeal is dismissed.
43. In the result, the appeal is dismissed. Consequently, connected Civil Miscellaneous Petition is also dismissed. No costs.
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