Madras High Court
Shri Thillaiamman Devasthanam vs P.Thillainayagam on 29 April, 2008
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.4.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN S.A.Nos.260 and 261 of 1996 Shri Thillaiamman Devasthanam represented by its Executive Officer, having office at the temple premises, Chidambaram Town and Munsif .. Appellant in both the Second Appeals vs.
1.P.Thillainayagam
2.P.Thillainatarajan both sons of Ponnambalam Pillai, 26/27, Thillaiamman Koil Street, Chidambaram Town and Munsif .. Respondents in both the Second Appeals Common Prayer in S.A.Nos.260 and 261 of 1996:
The Second Appeals have been filed against the common judgment and decree, dated 11.8.1995, made in A.S.Nos.39 and 40 of 1995, on the file of the District Court, South Arcot Vallalar District, Cuddalore, confirming the common judgment and decree, dated 31.8.1994, on the file of the Sub-Court, Chidambram, made in O.S.No.94 of 1989 and O.S.No.30 of 1990.
For Appellant : Mr.R.Swaminathan For respondents : Mr.R.Thiagarajan for Mr.Srinath Sridevan C O M M O N J U D G E M E N T The Second Appeals have been filed against the common judgment and decree, dated 11.8.1995, made in A.S.Nos.39 and 40 of 1995, on the file of the District Court, South Arcot Vallalar District, Cuddalore, confirming the common judgment and decree, dated 31.8.1994, on the file of the Sub-Court, Chidambram, made in O.S.No.94 of 1989 and O.S.No.30 of 1990.
2. Since both the second appeals are relating to the same issues and are based on common facts, they are taken up together and a common Judgment is passed.
3. The defendant in the suits O.S.No.94 of 1989 and O.S.No.30 of 1990, is the appellant herein.
4. The brief facts leading to the filing of the suit in O.S.No.94 of 1989, are as follows:-
The defendant temple is one of the important shrines in Chidambaram Town and the plaintiffs' father Ponnambalam Pillai was the Sthanikam Mirasi holder of the temple and his right was upheld in O.S.No.73 of 1943, in which the defendant and The Tamil Nadu Hindu Religious and Charitable Endowment Department were parties. The decree made in the said suit is final and binding on them. The plaintiffs' father had died in the month of October, 1984, and the plaintiffs had become the Hereditary Sthanikam Mirasi office holders by acquiring the hereditary right as per the registered will, dated 9.2.1971, executed by the father of the plaintiffs. As the Hereditary Sthanikam Mirasi office holders of the defendant temple, the plaintiffs are entitled to all the rights, privileges, honours and emoluments attached to the said office. As per the decree in O.S.No.73 of 1943, the defendant devasthanam was to pay to the plaintiffs 1/4th of the net annual Hundial and other collections and to give four measures of cooked rice daily to the Sthanikam Mirasi office holders. Though the defendant temple had not been complying with the requirements, a communication had been sent to the plaintiffs stating that the compromise decree in O.S.No.73 of 1943, was contrary to the provisions of The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, and that unless it was modified or amended, the plaintiffs would not be entitled to any share in the income or perquisites. By the same communication, the defendant temple had ordered the stoppage of such payments and grant of perquisites to the plaintiffs.
5. On the contrary, it has been stated by the plaintiffs that the decree in O.S.No.73 of 1943, is not a scheme decree whereunder the plaintiffs' father was granted Sthanikam Mirasi right for the first time. The compromise decree in O.S.No.73 of 1943, had been made only in recognition of the pre-existing hereditary right which the plaintiffs and their father have been enjoying for several generations. The said right is not contrary to any provision of The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, rather it is a right protected under the said Act and Article 19(1) (f) of the Constitution of India.
6. The plaintiffs are hereditary trustees as Sthanikam Mirasi Holders. They are not mere office holders or servants of the temple and the share in the income and other perquisites cannot be taken to be mere salaries paid to them. Therefore, neither the defendant temple, nor The Tamil Nadu Hindu Religious and Charitable Endowment Department would have the right to stop the plaintiffs' share in the income of the defendant temple and the perquisites they are eligible for. As per the terms of the decree in O.S.No.73 of 1943, the Sthanikam Mirasi office holders will keep one set of keys for the safe containing the jewels and the temple hundials and the other set of keys would be with the Executive Officer. The safe must be opened in the presence of the Sthanikam Mirasi office holders, the Inspector of The Hindu Religious and Charitable Endowment Department, the trustees and the Executive Officer on the specific orders of the Deputy Commissioner, Hindu Religious and Charitable Endowment Department. Prior intimation about the opening of the hundials would be given to the Sthanikam Mirasi office holders. The hundials would be opened, the collection counted and entered in the temple accounts book and it would be duly singed by the Sthanikam Mirasi Holders, the trustees, the Executive Officer and the Inspector of Hindu Religious and Charitable Endowment Department. However, after the death of the father of the plaintiffs, the procedures contemplated under the decree in O.S.No.73 of 1943, have not been followed. Hence, the plaintiffs had filed the suit praying for the grant of permanent injunction against the defendant and others from stopping the payment of 1/4th share in the income realised by the Temple and for the four measures of cooked rice due to the plaintiffs and to restrain them from opening the Temple Hundials without giving prior notice to the plaintiffs and without their presence.
7. The defendants in the suit O.S.No.94 of 1989, had stated that the plaintiffs' father Ponnambalam Pillai was functioning as the sthanikam of the defendant temple and that there was a suit filed in O.S.No.73 of 1943, on the file of the District Munsif, Chidambaram. However, it has been stated by the defendant that the will, dated 9.2.1971, executed by the plaintiffs' father, is neither true nor valid and therefore, it is not binding upon the defendant. The plaintiffs are not entitled to be the hereditary sthanikam Mirasi office holders of the temple and that they are not entitled to all the rights, privileges, honours and emoluments attached to the said office. After the death of the plaintiffs' father, the second plaintiff was functioning as sthanikam, temporarily, and it was not approved by the Deputy Commissioner, The Tamil Nadu Hindu Religious and Charitable Endowment, Mayiladuthurai. The first plaintiff was working as a teacher and was not functioning as sthanikam. The compromise decree made in O.S.No.73 of 1943, is not binding upon the defendant temple. The alleged rights of Ponnambalam Pillai was not the subject matter of the dispute in the said suit. It is false to say that the plaintiffs and their forefathers have been enjoying and exercising the sthanikam mirasi rights as a hereditary right for several generations. The plaintiffs were not entitled to the payment as prayed for by them, as a matter of right or by virtue of the decree in O.S.No.73 of 1943. The payment to the sthanikam has been objected to by the Chief Audit Officer as it cannot be included in the regular expenditure of the establishment. Under the provisions of The Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959, the Commissioner was to send a copy of the audit report to the temple and it is the duty of the trustee to rectify the defects pointed out by the Auditor. Therefore, pursuant to the objection raised in the audit report, the Commissioner had directed that necessary steps be taken to rectify the irregularities. Since the provisions of the scheme decree is repugnant to the provisions of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959, it is void in law. The hereditary right has been taken away as per Sections 55 and 56 of the Act. The Commissioner had the power to fix the scales of expenditure.
8. Under such circumstances, the defendant had sent a communication, dated 6.11.1989, informing the plaintiffs that they are not entitled to the share in the income or the perquisites, unless the decree in O.S.No.73 of 1943 is amended. The action taken by the defendant is valid and according to law and the plaintiffs have no right to question the same. The plaintiffs had filed a suit in O.S.No.1225 of 1987, on the file of the District Munsif Court, Chidambaram, and it is pending. The plaintiffs had prayed in the said suit for rendition of accounts and for payment of the plaintiffs' 1/4th share of the income and for a mandatory injunction directing the defendants to hand over the keys of the hundials to the plaintiffs and for a permanent injunction restraining the defendant from opening the temple hundial without prior intimation to the plaintiffs. The plaintiffs are not entitled to keep the keys as claimed by them and it is not necessary that the hundials must be opened only in the presence of the plaintiffs and after giving prior intimation to them. Since the opening of the hundials are done in the presence of the defendant, the Inspector of the Hindu Religious and Charitable Endowment Department, the Assistant Commissioner, staff of the Central Co-operative Bank, Chidambaram, the public, the temple staff and others after notifying the same in the notice Board of the temple office, it is open to the plaintiffs to be present at the time of the opening of the hundials. However, the plaintiffs cannot claim that the hundials should be opened only in their presence. Therefore, it was stated that the suit filed by the plaintiffs was not maintainable and that it should be dismissed.
9. Based on the averments made in the plaint filed on behalf of the plaintiffs and the written statement filed on behalf of the defendant, the trial Court had framed the following issues for consideration in O.S.No.94 of 1989:-
"1. Whether the decree made in O.S.No.73 of 1943 does not bind the defendant?
2. Whether the plaintiffs, their ancestors have not enjoyed the rights, in the status of Sthanikam Mirasdhars hereditary?
3. Whether it is correct that the defendant had stopped the payment of share amounts to the plaintiffs?
4. Whether the suit had been filed by misusing the process of law?
5. Whether this Court has jurisdiction to hear this suit?
6. Whether the Will, dated 9.2.1971, is sustainable in law? Whether this could bind the defendant?
7. To what reliefs are the plaintiffs entitled to?"
10. The brief facts leading to the filing of the suit in O.S.No.30 of 1990, as follows:
The plaintiffs' father Ponnambalam Pillai, S/o.Murugesa Pillai was the Sthanikam Mirasi holder of the temple and his rights as a Sthanikam Mirasi holder have been recognized and upheld in O.S.No.73 of 1943. After the death of the plaintiffs' father, they have become the hereditary Sthanikam Mirasi office holders, as per the registered Will, dated 09.02.1971, executed by their father. As such, they are entitled to all the rights, privileges, honours and emoluments attached to the said office. They are entitled to be paid <th of the net income, realised annually, by the defendant temple after deducting certain specified expenses and that they should also be given four measures of cooked rice daily. The Sthanikam Mirasi office holders will also keep one set of keys of the safe, containing the jewels and of the temple hundials and the other set of keys will be kept by the Executive Officer. The safe must be opened only in the presence of Sthanikam Mirasi office holders. The hundials of the temple will be opened only after prior intimation to the Sthanikam Mirasi office holders. The collection in the hundials were counted and entered in the account books and duly signed by the Sthanikam Mirasi office holders and the others. After the death of the plaintiffs' father, the Executive Officer of the defendant temple had taken away the keys of the temple from the plaintiffs by force and had not returned them in spite of repeated demands. Since the Executive Officer of the defendant temple is retaining the keys of the Sthanikam Mirasi office holders, illegally, the plaintiffs are entitled for a mandatory injunction, directing the defendant to return the hundial keys. Since the Executive officer is opening the temple hundials without the presence of the plaintiffs and without giving prior intimation to them, contrary to the terms of the decree in O.S.No.73 of 1943, the plaintiffs are entitled for permanent injunction restraining the defendant from opening the temple hundials without giving prior written intimation to the plaintiffs and without their presence, as the defendant has not been rendering true and proper accounts for the income realised from the hundial collections of the temple and since the plaintiffs have not been paid the emoluments in accordance with the decree in O.S.No.73 of 1943, the plaintiffs are entitled for rendition of accounts from 1394 fasli. In such circumstances, the plaintiffs have filed the above suit in O.S.No.30 of 1990.
11. The defendant in the suit had stated that the Sthanikam is not entitled to keep the key of the hundials and the safe containing the jewels of the temple. It is incorrect to state that the hundials must be opened only in the presence of the Sthanikam, since there is no such provision in the decree in O.S.No.73 of 1943. Ponnamalam Pillai had received the amounts till his death and the second plaintiff had also received the < th share till 1395 falsi. The plaintiffs and their father were never in possession of the hundial keys and there is no necessity to open the hundials after informing the plaintiffs. The accounts of the hundial collection have been properly and regularly audited. It is not correct to say that the Executive Officer of the temple took away the keys of the temple hundials from the plaintiffs by threat and by force. The suit is barred for non joinder of parties. Therefore, the suit has to be dismissed.
12. Based on the averments made in the plaint filed on behalf of the plaintiffs and the written statement filed on behalf of the defendant, the trial Court had framed the following issues for consideration in O.S.No.30 of 1990:-
"1) Whether the defendant is bound to render accounts in respect of 1/4th share from 1394 fasli onwards, as has been claimed by the plaintiffs?
2) Whether the plaintiffs are entitled to the reliefs of mandatory injunction and permanent injunction as has been sought for by them?
3) Whether the alleged discharge is true?
4) Whether the suit is maintainable in law?
5) Whether the suit has been adversely affected due to the non-impleading of the necessary parties to the suit?
6) Whether this Court has jurisdiction to hear this suit?
7. To what other reliefs are the plaintiffs entitled to?"
13. Both the suits were tried together by the Court of Subordinate Judge, Chidambaram, and the suits have been decreed. Aggrieved by the judgment and decree of the trial Court, dated 31.08.1994, the defendant has filed an appeal before the lower appellate Court.
14. In the proceedings of the District Collector, South Arcot District dated 29.10.1913, marked as Ex.A-3, Murugesa Pillai has been described as Trustee (Arangavalar). From the said proceedings, it is seen that the request of Murugesa Pillai in Ex.A-2 has been rejected. The petition, dated 20.02.1914, marked as Ex.A-4, has been submitted to the District Collector, South Arcot District. In Ex.A-5, dated 16.12.1917, which is an order passed by the Tahsildar, Chidambaram, rejecting the request of Murugesam Pillai for grant of patta has been referred to. It was found by the trial Court that in Ex.A-4 Murugesam Pillai has been described as Sthanikam hereditary mirasi and in Ex.A-5, he has been described as 'Trustee' (Arangavalur). Ex.A-6, dated 13.08.1924, is a registered document executed by Manickam pillai, with regard to the conveying of the heriditary mirasi rights to Murugesam Pillai. This document has been accepted to show that the sthanikam rights have been enjoyed by Manickam pillai even prior to the year 1924. In Ex.A-7, Manickam Pillai has been shown as a trustee (Arangavalur) of the defendant temple. It is shown that the defendant temple had been in existence even prior to 1801 and that the said temple has never been under the control of the temple committee and thus it has been shown to be an exempted temple. Ex.A-9 is a trust deed written by Murugesam Pillai in favour of his son Ponnambalam Pillai. From the said document, the trial Court had seen that Ponnambalam Pillai and his ancestors had been administering the affairs of the defendant temple and have been enjoying the rights and privileges connected with its affairs, including the Sthanikam mirasi rights.
15. Even though the said document is an unregistered document, it has been accepted by the trial Court to show that Murugesam pillai had Sthanikam Mirasi rights in the defendant temple. Similarly, from the other exhibits, marked in support of the claims of the plaintiffs, the trial Court has seen that the plaintiffs and their ancestors have been shown to have been administering the affairs of the defendant temple and had been enjoying the Sthanikam Mirasi rights and the privileges connected therewith. In the letter, dated 07.02.1942, written by the temple Executive Officer and the Managing Trustee and the defendant temple, marked as Ex.A-19, it has been shown that Ponnambalam Pillai and his heirs have been having hereditary Sthanikam Mirasi rights and that they have been having the keys of the safe containing the temple jewels and the temple hundials and that they have been having shares in the income of the temple. In the suit in O.S.No.73 of 1943, filed by Naganatha Dixithar in the Court of the District Munsif, Chidambaram Ponnamabalam Pillai, Son of Murugesam Pillai, Ponnambalam Pillai Son of Muthukumara Pillai have been shown as Trustees.
16. The compromise decree made in the said suit has been marked as Ex.A-20. It is seen from the said decree that Ponnambalam Pillai's rights as Sthanikam Mirasidarar has been established. Ex.A-23, dated 09.02.1971, is a registered will executed by Ponnambalam Pillai in favour of his sons who are the plaintiffs in the suit. By the said Will the Sthanikam Mirasi rights of Ponnambalam Pillai has been conveyed to the plaintiffs. From the other exhibits marked in favour of the plaintiffs, which are dated subsequent to the date of the Will, the trial Court had come to the conclusion that the plaintiffs are entitled to the Sthanikam Mirasi rights and the privileges related thereto. It was also held by the trial Court that Sthanikam Mirasi rights and the privileges in favour of the plaintiffs were continuing and therefore, they were entitled to the reliefs claimed by them in the suits.
17. The trial Court, while examining the documents marked as Exhibits in the suit, has found from Exhibit A.1, dated 28.8.1992, that it is a lease deed written by one Vaidiyalinga Nadar in favour of Ponnambalam Pillai. From the said document, it has been seen that Ponnambalam Pillai was Sthanikam Mirasi of the defendant temple. The properties belonging to the defendant temple had been taken on lease by Vaidiyalinga Nadar from Ponnambalam Pillai. It has been found that there is no dispute about the relationship of the plaintiffs with Ponnambalam Pillai and his descendants. Exhibit A.2, dated 22.3.1912, is a document by which Murugesam Pillai father of Ponnambalam Pillai had requested the District Collector to allot certain lands in favour of the temple by granting patta. The documents marked as Exhibits on behalf of the plaintiffs, the trial Court had found that the plaintiffs and their ancestors have been sthanikam mirasi Office holders taking care of the some of the administrative matters of the defendant temple. The document marked as Exhibit A.19, dated 7.2.1942, the Executive Officer and the Managing trustee of the defendant temple have accepted that Ponnambalam Pillai and his heirs to be the hereditary Sthanikam Mirasi and have also accepted they have the rights and privileges. It was also seen that Sthanikam Mirasi had rightful share in hundial collection and were also entrusted with the keys of the temple and the safe containing the jewels of the temple. From the decree made in O.S.No.73 of 1943, it was found that there had been a compromise amongst the parties to the suit.
18. In such circumstances, the trial Court had decreed the suits in favour of the plaintiffs.
19. Aggrieved by the judgment and decree of the trial Court in O.S.No.94 of 1989 and O.S.No.30 of 1990, the defendant temple had filed two appeals before the lower appellate Court in A.S.Nos.39 and 40 of 1995. Based on the records available and the rival contentions of the parties concerned, the lower appellate Court had framed the following points for consideration.
"1. Whether the plaintiff is entitled for permanent injunction restraining the defendant from stopping the payment of 1/4th share in the income realised by the temple and four measures of cooked rice daily to the plaintiffs and from opening the Temple hundials without the presence of the plaintiffs and without giving them piror notice?
2. Whether the plaintiffs are entitled for rendition of accounts of the income realised by the temple by the defendant and for payment of the plaintiff's 1/4th share of the net income realised from 1394 fasli onwards?
3. Whether the plaintiffs are entitled for mandatory injunction directing the defendant to handover the temple's keys of the Sthanikam Mirasi Office holder to the plaintiffs, and whether the hundials have to be opened in the presence of plaintiffs after giving prior notice?"
20. After stating the facts and averments of the plaintiffs and the defendants, the lower appellate Court had noted that the second plaintiff had been examined as P.W.1, the first plaintiff is his brother. They are the sons of Ponnambalam Pillai. P.W.1's evidence is that the temple pooja and the administration was with Ponnambalam Pillai and his forefathers' were looking after the properties and the administration of the temple and their grand father Murugesam Pillai was looking after the administration and only during the said period the defendant temple had been declared as an exempted temple. The income of the temple was from the lands, archana tickets etc. , and that the keys of the temple, jewel box and hundials were with them and the plaintiffs are the Sthanikam Mirasi office holders. P.W.1 had filed a lease deed, marked as Ex.A-1, and the petition given to the Tahsildar.
21. Analysing the documents filed as exhibits in favour of the claims made by the plaintiffs, the lower appellate Court had come to the conclusion that the plaintiffs and their forefathers were entitled to the heriditary Sthanikam Mirasi rights and that they are entitled to the custody of the keys of the temple, jewel box and the hundials. Further, from the compromise decree made in O.S.NO.73 of 1943, the lower appellate Court had come to the conclusion that the plaintiff's father and his family members were the hereditary Sthanikam Mirasi office holders and they are entitled for the rights and privileges thereto. As hereditary Sthanikam, they were entitled for < th share in the income of the defendant temple and for four measures of the rice, which they were entitled to. Further, it was also held that they were to have the keys of the temple, the safe containing the jewels of the temple and the hundials of the temple.
22. From the evidence of D.W.1, the lower appellate Court had come to the conclusion that the plaintiffs father was the trustee and he was doing the work of Sthanikam for which he was given 1/4th share of the net income from the temple and four measures of prasadams. From the evidence of D.W.1, it has also been found that the second plaintiff was receiving the income even prior to the filing of the suits. From the documents marked as Ex.A-39 to A-41 the lower appellate Court had found that the Deputy Commissioner of Hindu Religious Charitable Endowments Department had passed orders asking the temple authorities to give the shares due to the Sthanikadars. In Ex.A-39, it has been specifically stated that the Sthanikadars were entitled to their share as per the decree in O.S.No.73 of 1943. Since it was held that the plaintiffs were entitled to < th share of the income of the temple, after making the necessary deductions, it was also held that the plaintiffs were entitled to ask for rendition of accounts. From the evidence of D.W.1, the lower Appellate Court had found that there was an admission that the plaintiffs' father was having the keys till he died. It was also admitted by D.W.1 that except the hundial key, the plaintiffs were in custody of the other keys. It was also admitted that the hundial key was in the custody of the plaintiff's father and in Ex.A-19 it had been specifically stated that the hundial key must be with the plaintiff's father in the capacity as Sthanikadar. There was no evidence shown on behalf of the defendant temple that the key had been taken from the plaintiffs' father by following legal procedures.
23. From the oral as well as documentary evidence available, the lower appellate Court had come to the conclusion that the plaintiff's were entitled to have one set of hundial key. Since the plaintiffs were entitled for their < th share in the net income, after defraying the expenses of the defendant temple, the plaintiffs were entitled to ask for rendition of accounts from fasli 1389 and that the plaintiffs were entitled to have one set of hundial keys and that prior notice also had to be issued to the plaintiffs with regard to the opening of the hundial. Thus, the lower appellate Court had affirmed the judgment and decree of the trial Court in the said suits by dismissing the appeals A.S.Nos.39 and 40 of 1995.
24. Hence, the defendant devasthanam has filed the present second appeals before this Court.
25. Various grounds have been raised by the appellant in both the second appeals stating, inter alia, that the Courts below have failed to see that the decree and judgment in O.S.No.73 of 1943, on the file of the District Munsif Court, Chidambaram, would not be binding on the appellant as the Temple Committee and the Hindu Religious and Charitable Endowment Board, who were impleaded as the fourth and fifth defendants therein, were exonerated before the compromise decree had been entered into.
26. It was also submitted that the Courts below ought to have held that the Sthanikar of a temple would not automatically be entitled to hold one set of keys for the safe containing the jewels and the temple hundials. The Courts below have passed the judgment and decree on the presumption that the compromise decree in O.S.No.73 of 1943, had recognised the rights of the then Sthanikar, through whom, the respondents in the second appeals, claim their rights as his legal heirs.
27. The compromise decree cannot be binding on the appellant, since it had been entered into without obtaining the prior written sanction of the Hindu Religious and Charitable Endowment Board as provided under law. Further, the will, dated 9.2.1971, said to have been executed by Ponnambalam had not been proved as required in law. The claim by both the plaintiffs to be successors of the deceased Sthanikar cannot be recognised in law, even if it is admitted that there was an office of Sthanikar in the suit temple.
28. The audit objection raised by the Audit Committee, in accordance with Section 118 (2) (b) of Act XXII of 1959 ought to be held to be valid. The Courts below had failed to note that the hereditary succession to an office in a religious institution has been abolished by Sections 55 and 56 of Act XXII of 1959. Further, the judgment and decree of the Courts below are contrary to the Installation, Safeguarding and Accounting of Hundial Rules, 1975.
29. Since the law does not recognise the hereditary office of Sthanikar, the Courts below ought to have decided that the respondents were not entitled to a share in the income of the Temple. Merely due to the non-production of the records showing that the custody of the keys and the charge taken over register, the Courts below could not have come to the conclusion in favour of the respondents with regard to their rights.
30. It had also been stated that the Courts below had failed to see that the questions relating to any honour, emoluments or perquisites in any religious institution by way of a customary claim is a matter to be decided under Section 63 (e) of the Act and therefore, the suits claiming such rights are not maintainable. Further, the suits are bad in law for non-joinder of necessary parties and no suit had been filed for a declaration of the rights of the respondents.
31. The second appeals have been admitted on the following substantial questions of law:
"1. Is the decree and judgment rendered in O.S.No.73 of 1943 regarding the administration of the temple in question and its properties is binding on the respective parties in these appeals? If so to what extent?
2. Have the Courts below misconstrued the adduced legal evidence pertaining to the decision to be taken by the Deputy Commissioner, Hindu Religious and Charitable Endowments under Section 63(e) of the Act in deciding the quantum of emoluments and perquisites due to the persons lawfully entitled?
3. Whether the jurisdiction of the Civil Court, in view of Section 108 of the Act has been taken away?
4. Whether the plaintiffs are entitled to claim the office of Sthanikar by way of hereditary succession and the consequential relief of injunction?"
32. Mr.R.Swaminathan, the learned counsel appearing on behalf of the appellant, had raised various contentions in support of the claims made by the appellant in the above second appeals.
33. It was contended that since the fourth and fifth defendants had been exonerated, the compromise decree in O.S.No.73 of 1943, on the file of the District Munsif Court, Chidambaram, is not binding on the appellant in the present second appeals. The said compromise decree is not binding on the appellant also for the reason that the procedure contemplated under Sections 61,62,63,70 and 73 of Act, 1927, was not followed. Further, the consent from the Hindu Religious and Charitable Endowment Board had not been obtained for the filing of the suit as provided under Section 73 of Act, 1927. Further, the suit decree is not saved under Section 103 of Act, 1951, relating to repeal and savings.
34. The suits in O.S.Nos.94 of 1989 and O.S.No.30 of 1990, are not maintainable, as they are barred under Section 108 read with 63(1) (e) of the 1959 Act. The reliefs prayed for by the plaintiffs in the said suits cannot be granted as the decree made in O.S.No.73 of 1943, is not binding on the appellant Temple. Further, the reliefs prayed for by the plaintiffs in the said suits are contrary to the Installation, Safeguarding and Accounting of Hundials Rules, 1975.
35. The plaintiffs cannot claim the reliefs as prayed for in the suits, since they are with regard to the hereditary offices prohibited, under Sections 54 and 55 of The Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959. Further, the suits are against the public policy, since the reliefs claim are violative of the law in force. The suits are also not maintainable, since they do not come under Section 38(3) and Section 39 of The Specific Relief Act, 1963. A suit for mandatory injunction or for permanent injunction cannot be maintained without a specific prayer for declaration with regard to the plaintiffs' hereditary rights.
36. The learned counsel appearing on behalf of the appellant had relied on the following decisions in support of his contentions:
36.1. In E.R.J. SWAMI Vs. THE STATE OF TAMIL NADU (A.I.R. 1972 S.C. 1586), the Supreme Court has held that the Archaka has never been regarded as a spiritual head of any institution. He may be an accomplished person, well versed in the Agamas and rituals necessary to be performed in a temple but he does not have the status of a spiritual head. The Dharamkarta or the Shebait makes the appointment and the Archaka is a servant of the temple. The trustee can enquire into the conduct of such a servant and dismiss him for misconduct. That being the position of an Archaka the act of his appointment by the trustee is essentially secular. The fact that in some temples the hereditary principle is followed in making the appointment will not make the successive appointments anything but secular. That after his appointment the Archaka performs worship is no ground for concluding that the appointment is either a religious practice or a matter of religion.
In view of S.55 (2) as amended, the choice of the trustee in the matter of appointment of an Archaka is no longer limited by the operation of the rule of next-in-line of succession in temples where the usage was to appoint the Archaka on the hereditary principle. The trustee is not bound to make the appointment on the sole ground that the candidate is the next-in-line of succession to the last holder of Office. To that extent, and to that extent alone, the trustee is released from the obligation imposed on him by S.28 of the Principal Act to administer the affairs in accordance with that part of the usage of a temple which enjoined hereditary appointments. The section as amended does not interfere with any religious practice or matter of religion and, therefore, is not invalid.
36.2. In SADHU SRI V.N.SRINIVASA IYENGAR Vs. K.K.V.ANNAN SRINIVASACHARIAR (AIR 1990 MAD. 375), this Court had held as follows:
"5. The objection regarding the jurisdiction of the civil Court in this case is two-fold. The first part of the objection relates to the nature of the right sought to be asserted by the first respondent in the course of the performance of the duties relating to Adyabhaga Goshti. It is seen from paragraph 3 of the plaint that the ancient and established custom and mamool which had obtained was that the family of the first respondent and their ancestors had been exercising the right to appoint persons for the purpose of constituting the Adyabaga Goshti for the recitation of Divya Prabandham before Sri Ranganathaswami whenever the deity is taken out in procession outside the Aryabatal Vasal. The right claimed by the first respondent is stated to be an exclusively hereditary right for the appointment of persons for participating in the Adyabaga Goshti. The plaint, however, is silent as to whether this particular right claimed by the first respondent herein is attached to any office in the temple or whether for the non-performance of the same, the first respondent or others could be visited with any punishment. It is very necessary that before a right asserted could be considered as a civil right, it must be attached to an office and for the non-performance of the duties and non-exercise of the rights pertaining to that office, the incumbent could be found fault with by the imposition of a punishment. It is relevant in this connection to refer to the decision of the Supreme Court reported in Sinha Ramanuja Jeer Vs. Rangaramanuja Jeer (1962) 1 Mad. LJ (SC) 1: (AIR 1961 SC 1720), Subba Rao, J. as he then was, has summarised the relevant principles of law as under:-
"....(1) A suit for a declaration of religious honours and privileges simpliciter will not lie in a civil Court (2) But a suit to establish one's right to an office in a temple and to honours and privileges attached to the said office as its remuneration or perquisites is maintainable in a civil Courts. (3) The essential condition for the existence of an office is that the holder of the alleged office shall be under a legal obligation to discharge the duties attached to the said office and for the non-observance of which he may be visited with penalties. (4) So judged, there cannot be an independent office of theerthakar, for a theerthakar has no obligatory duties to perform; nor can there be an office of arulipad; the said word only connotes that the names of the theerthakars are called out by the archaka in a certain order. (5) Even if theertham is given or other honours are shown in a particular order to a person holding an office, it does not necessarily follow that the said honours are part of the remuneration attached to the office;....."
Considered in the light of the principles laid down in the above decision, it is seen that the first respondent has not sought to establish his right to any office in the temple and to honours and privileges attached to the said office as remuneration or perquisites. There is also nothing to indicate that the first respondent is under any legal obligation to discharge the duties, for the non-performance of which he may be visited with penalties, in the absence of the fulfilment of the above said requirements, it follows that the first respondent cannot claim that he is agitating only a civil right before the Court, and therefore, his suit is maintainable. The decision in Thiruvenkata Ramanuja Vs. Venkatacharlu, AIR 1947 PC 53, relied on by the learned counsel for the first respondent does not in any manner assist him, for, that case did not hold that the duties pertaining to Adyabaga Goshti relate to an office or that there was any legal or compellable duty with reference to the performance thereof and for the non-performance of which, a penalty could be imposed. Apart from it, in view of the clear statement of the law in the decision of the Supreme Court, the decision in Thiruvenkata Ramanuja Vs.Venkatacharlu, AIR 1947 PC 53, relied on by the learned counsel for the first respondent does not assist him in any manner, consequently, it has to be held that the first respondent cannot be said to have come to the civil Court with a view to agitate a civil right."
37. Per contra, Mr.R.Thiagarajan, the learned Senior Counsel appearing on behalf of the respondents had contended that the suits filed by the plaintiffs and the reliefs prayed for by the plaintiffs are sustainable in law and that the Courts below have rightly come to the conclusion that the plaintiffs are entitled to the hereditary rights as Sthanikam Mirasi office holders of the appellant Temple. The claim for 1/4th shares in the income of the Temple and for a share of the four measures of cooked rice and for the recovery of keys of the temple hundials and the safe containing the temple jewels are sustainable in law.
38. The learned senior counsel appearing on behalf of the respondents had further contended that the hereditary rights of the plaintiffs have been recognised by the defendant in the suits for a very long time as customary rights. The hereditary rights of the plaintiffs have also been recognised by the compromise decree made in O.S.No.73 of 1943, on the file of the District Munsif Court, Chidambaram. Even though the defendants 4 and 5 in the said suit have been exonerated, the binding nature of the compromise decree made in the said suit is clear from the fact that the departmental and Temple authorities have continued to follow the customary practice of giving Sthanikam Mirasi office holders 1/4th share in the income of the Temple as well as the recognition of other rights and perquisites due to the Sthanikam Mirasi office holders.
39. It has been further contended that there is no clear explanation forthcoming from the departmental and the Temple authorities as to why they were continuing to recognise the rights of Sthanikam Mirasi office holders till the year 1986, long after the compromise decree had been made in O.S.No.73 of 1943. Such practice by way of custom and usage has been followed only as a recognition of the hereditary rights of the plaintiffs and their predecessors. In fact, the compromise decree made in O.S.No.73 of 1943, is only a recognition of the hereditary rights vested with the plaintiffs, who are the respondents in the present second appeals.
40. It has been further contended that the rights of the plaintiffs flow from their status of being hereditary trustees of the Sthanikam Mirasi office holder and not from their position of being servants of the appellant Temple as claimed by the defendants in the suit. It has been clearly admitted in the written statement filed on behalf of the defendant that the plaintiffs' predecessors were recognised as Sthanikam Mirasi and they were being given the shares due to them in recognition of their hereditary rights.
41. It has been further contended that if the shares due to the plaintiffs and their predecessors had been given and their hereditary rights as Sthanikam Mirasi had been recognised by the defendants from the year 1944 upto the year 1986, in spite of the compromise decree, dated 5.2.1944, made in O.S.No.73 of 1943, it is clear, as held by the Courts below, that the plaintiffs are entitled to claim their shares in the income of the appellant Temple as well as their right to hold the keys of the Temple hundials and the safe containing the jewels. In such circumstances, the plaintiffs are also having the right to demand rendition of accounts by the defendant, in order to safeguard their rights.
42. The learned counsel appearing on behalf of the respondents has relied on the following decisions in support of his contentions.
42.1. In MOOKKA VELAR Vs. BALUCHAMI AND OTHERS (1977 M.L.J. 258), this Court had held that where the plaintiffs had already established their rights to be in management of a private temple as hereditary trustees under an earlier decree their later suit for a permanent injunction restraining the defendant from interfering with their right to be in joint management as joint hereditary trustees was not barred under Section 63 read with Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. The bar under Section 63 operates against a suit for establishing a hereditary right and not against a suit for enforcing it.
42.2. In SRI THULUKKA CHOODAMANI MARIAMMAN TEMPLE ETC. Vs. SUBRAMANIA PANDARAM (1999 L.W. 606), this Court had held that in a suit filed by the hereditary Poojaries of a Temple for a declaration that they are entitled to receive the tender coconuts and plantain fruits offered to the temple by the worshipping public at the time of annual festival in the month of Panguni and to restrain the defendants 1 to 5 (the hereditary trustees and the Executive Officer) from in any way interfering with the peaceful possession and enjoyment of that right the trial Court dismissed the suit holding that the suit was barred under S.108 of the TNHR & CE Act. The lower appellate Court differed and accepting the case of the plaintiffs on merits it held that the dispute raised in the suit will not come within the purview of S.63 (e) of the Act and, therefore, the suit is not barred under S.108 of the Act.
42.3. In BADRI NATH Vs. PUNNA (AIR 1979 SC 1314), the Supreme Court had held that in the instant case the right of the baridars to share offerings made to the deity was restricted to four sub-castes of Thakars and although to begin with baridars did not perform any duties in return, certain obligations were superimposed on the right in subsequent years. The right to receive a share in the offerings thus became subject to the performance of onerous duties. But then these duties were not in nature priestly or requiring a personal qualification. On the other hand all of them were of a non-religious or secular character and could be performed not necessarily by the baridar personally but by his agents or servants so that their performance boiled down to mere incurring of expense.
The right of the baridars to share offerings was, therefore, transferable and could be inherited and did not depend on any possibility of the nature referred to in S.6 (a) of the T.P. Act.
42.4. In ARULMIGHU DEVANATHASWAMY TEMPLE Vs. NEELAMEGA BHATTACHARIAR ((2001) 9 SCC 125), the Supreme Court had held that in a case where there was a dispute between the temple trustees and Archaka as to whether the trustees had a right to install a hundial donation box in temple precincts and an existing scheme of administration as modified from time to time, specified that Archaka was entitled to all cash offerings made in open cups or plates and intended for him. The Supreme Court had held on facts that the temple trustees could not collect the offerings in a hundial which could be kept for specific purposes only as per the scheme.
43. The learned counsel appearing on behalf of the appellant had submitted that the appellant temple is excepted temple and any decree obtained against the said temple, without having obtained the consent of the Board for the filing of the suit as provided under Section 73 of The Madras Hindu Religious and Charitable Endowments Act, 1927, is not binding on the said appellant temple. Further, the decree in O.S.No.73 of 1943, is not binding on the appellant temple also for the reason that the procedures contemplated under Sections 61,62,63,70 and 73 of Act, 1927, have not been followed and the said decree is not saved under Section 103 of The Madras Hindu Religious and Charitable Endowment Act, 1951, relating to repeal and savings.
44. It has been further contended on behalf of the appellant temple that the suits in O.S.No.94 of 1989 and O.S.No.30 of 1990, which are the subject matter of the present second appeals are not maintainable, as they are barred under Section 108, read with Section 63(1)(e) of The Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959. Further, the judgment and decree passed by the Courts below are contrary to the Hundial and Jewels Rules framed under the Act. Further, they are also contrary to the provisions of Section 54 dealing with filling up of vacancies in the office of hereditary trustee and Section 55 relating to appointment of office holders and servants in religious institutions of Act, 1959.
45. The Learned counsel appearing for the appellant temple had also contended that a suit for permanent injunction is not maintainable as the payment of the shares in the income of the temple as well as the privileges, as claimed by the plaintiffs had been discontinued from the month of October, 1984, Further, the suit would not come under Section 38 (3) of The Specific Relief Act, 1963. The suit for mandatory injunction and for rendition of accounts in O.S.No.30 of 1990, under Section 39 of The Specific Relief Act, 1963, is not maintainable without the prayer for declaration. Further, the reliefs sought for by the plaintiffs in the said suits are against the public policy and contrary to law.
46. It was also contended that in view of the provision in Sections 69 and 70 of The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, the plaintiffs in the suits O.S.No.94 of 1989 and O.S.No.30 of 1990, ought to have availed the alternate remedies provided under the said Act and the suits filed before the Civil Courts have been barred by Section 108 of The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
47. It has also been submitted on behalf of the appellant temple that the reliefs sought for by the plaintiffs in the said suits are contrary to the provision of The Installation, Safe Guarding and Accounting of Hundials Rules, 1975. In such circumstances, the judgment and decree of the Courts below in both the suits in O.S.No.94 of 1989 and O.S.No.30 of 1990 are contrary to law and unsustainable.
48. The learned counsel appearing on behalf of the respondents has submitted that the prohibition contained in Section 108 of The Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959, will not apply to the suits in which the relief of injunction has been prayed for. Section 105 of The Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959, saves seeking the reliefs with regard to any honour, emoluments or pre-requisite to which any person is entitled to by custom or otherwise in any religious institution or its established usage with regard to any other matter. The reliefs sought for in the suit are not contrary to the provision of the acts or the rules framed thereunder, as alleged by the appellant temple. In fact, both the documentary and oral evidence available before the Courts below have clearly established the long standing custom and usage according to which, the plaintiffs are entitled to the reliefs claimed for by them.
49. Further, there is no pleadings in the written statement that the decree in O.S.No.73 of 1943, is a nullity. In fact, the said decree was a consent decree binding on the parties thereto. There is no pleadings that the counsels, who had signed the decree in O.S.No.73 of 1943, had acted contrary to the interest of the parties concerned. The said decree had been acted upon by all the parties concerned including the appellant temple and the Courts below had categorically stated in their judgment that the plaintiffs were entitled to the share in the income of the temple and had also enjoyed certain rights and privileges for a long time, in accordance with the established custom and usage. Even after the decree made in O.S.No.73 of 1943, the said custom and usage were being adhered to. In such circumstances, the appellant temple cannot be permitted to plead at this stage that the decree made in O.S.No.73 of 1943, is not binding as Non est in law.
50. On analysing the rival contentions and on perusing the records placed before this Court, this Court is of the considered view that the Courts below have not considered the relevant provisions of The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, while holding that the respondents are entitled to the reliefs sought for by them. The respondents had sought for the reliefs by way of a permanent injunction from stopping the payment of 1/4th share of the income realised by the Temple and for the four measures of cooked rice due to the plaintiffs and from opening the Temple Hundials without giving prior notice to the plaintiffs and without their presence by filing the suit in O.S.No.94 of 1989. Such a prayer could not have been granted by the Courts below as it is against The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and The Hundial and Jewels Rules framed under the Act.
51. It is clear while reading Section 108 The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, along with Section 63 of the Act that the suit would not lie to establish the claims of the respondents as claimed in the suits O.S.No.94 of 1989 and O.S.No.30 of 1990. Both the Courts below have erred in deciding in favour of the respondents in holding that they were entitled to the Sthanikam Mirasi right. According to Section 63 of the Act, the Joint Commissioner or the Deputy Commissioner, having jurisdiction to hear the matter, would be empowered to hear and decide the issues relating to whether any person is entitled, by custom or otherwise, to any honour, emoluments or perquisites in any religious institution and to decide as to what the established usage of a religious institution is in regard to any other matter. Section 108 prescribes that no suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in the Act, shall be instituted in any Court of Law, except under, and in conformity with, the provisions of the Act.
52. The said provision clearly bars civil suits with regard to matters or disputes for which the provision is made in the Act. While so, it would have been appropriate for the respondents to approach the concerned authorities under the provisions of Section 63 of The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, or under any other provision of law to establish their claims, if any, seeking the reliefs as prayed for by them, rather than filing civil suits before the Courts of law. Even if it had been found by the Courts below that the respondents and their predecessors had enjoyed statutory Sthanikam Mirasi rights, it would not be legally permissible, in accordance with the provisions of the Act.
53. From the facts and circumstances of the case, it is clear that the claims made by the respondents cannot be sustained in view of the provisions of law prescribed under The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, and The Installation, Safe Guarding and Accounting of Hundials Rules, 1975, made thereunder, except as stated in paragraph 52 of this judgment. In such view of the matter, the second appeal Nos.260 and 261 of 1996, stand allowed setting aside the judgment and decree of the Courts below. Consequently, connected C.M.P.No.1371 of 2001, C.M.P.No.12146 of 2004, C.M.P.No.2226 of 1996, C.M.P.No.6005 of 1996 and C.M.P.No.9771 of 1997, are also closed. No costs.
29.4.2008 INDEX : YES INTERNET : YES M.JAICHANDREN J., To: 1. The District Court, South Arcot Vallalar District, Cuddalore 2. The Sub-Court, Chidambram S.A.Nos.260 and 261 of 1996 29.4.2008