Madras High Court
Muthukaruppan @ Velayutham vs Thirugnanasambandam ... 1St on 12 September, 2014
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12.09.2014 CORAM THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM S.A.(MD)Nos.458 of 2012 and 597 of 2012 and M.P.(MD)Nos.1 & 1 of 2012 M.P.(MD)No.3 of 2013 M.P.(MD)No.4 of 2014 1. Muthukaruppan @ Velayutham 2. Rajendran 3.Sudalaimuthu @ Durai 4.Vaikundaramasamy @ Kumar ... Appellants in both Appeals / Defendants 7 to 10 Vs. 1.Thirugnanasambandam ... 1st Respondent in S.A.597/2012 / 2nd Respondent in S.A.458/2012 2.Meenakshi Sundaram Pillai ... 2nd Respondent in S.A.597/2012/ 3rd Respondent in S.A.458/2012 /3rd Defendant 3.Ganesan 4.Suresh @ Muthukaruppan 5.Ramkumar 6.Vasanthakumari 7.R.Muthukumar 8.R.Sivakumar 9.R.Ponnammal Ramesh .. Respondents 3 to 9 in both S.A./ Defendants 4 to 6 and 11 to 14 Appeals filed under Section 100 of Code of Civil Procedure, against the Decree and common Judgment respectively made in A.S.No.9 of 2008 and 93 of 2007, dated 16.04.2012 on the file of District Judge cum Additional Sub Judge, Tuticorin in reversing the judgment and decree in O.S.No.182 of 2002, on the file of the District Munsif Court, Srivaikundam, dated 14.09.2005. !For Appellants : Mr.V.Raghavachari (in Both S.A.) ^For Respondent-1 : Mr.J.Ashok and S.A.458/2012) (For M/s.Jeyapaul Associates) For Respondent-2 : Mr.M.Vallinayagam, Senior Counsel in S.A.No.458/2012 for Mr.D.Nallathambi and R1 in S.A.597/2012 For Respondent-3 : Mr.R.Vijayakumar For Respondents : Mr.R.Agilesh (R4 and R5) in S.A.458/2012 Reserved on = 28.04.2014 Pronounced on = 12.09.2014 :COMMON JUDGMENT
Challenging the judgment and decree made in A.S.Nos.9 of 2008 and 93 of 2007 by the Trainee District cum Additional Sub Judge, Tuticorin, reversing the judgment and decree made in O.S.No.182 of 2002 by the District Munsif Court, Srivaikuntam, these appeals have been filed.
2.Facts which are leading to disposal of the appeals are as follows:-
Appellants 1 to 4 are defendants 7 to 10. 1st respondent is the plaintiff. Respondents 2 to 9 are defendants 3 to 6 and 11 to 14. The plaintiff/Thirugnanasambandam, filed a suit in O.S.No.204 of 1992 (lateron renumbered as O.S.No.182 of 2002) on the file of the District Munsif, Srivaikumdam, praying for a declaration and permanent injunction with respect to his rights of poojariship attached with emoluments, by turns, commencing from 1st Thai and future turns among the plaintiff and defendants 3 to 14, in respect of the suit temple namely, Shri.Vembadi Sudalaimadasamy Temple and Pechiamman Temple, situated in Kottakurichi Village in Srivaikundam Taluk.
3.For easy understanding, family Genealogy is given below:-
GENEALOGICAL TREE Deivathadia Pillai (Senior) | | |----------------------------------------------------------------
-----------------------------| Muthukaruppa pillai Vaikundaramasamy Pillai |-------------------|------------------|----------------------| | | | | Deivathadia Pillai Ramasamy Pillai Meenakshi Thirugnanasambandam Kanthimathi Ammal (Junior) (died) Pillai (died) Sundaram | (1st Defendant) (2nd Defendant) (3rd Defendant) (Plaintiff) Ganesan | | (4th Defendant) | | | | | | | | | | | |--------------------------|------------------
|-----------------------|
| Vasanthakumari Muthukumar Sivakumar Ponnamal
Ramesh
| (D-11) ( D-12) (D-13)
(D-14)
|
|
|-------------------------------------|-----------------|------------------- |------------------------|-------------------| Suresh @ Ramkumar Muthukaruppan Rajendran Sudaliamuthu Vaikundaramasamy Muthukaruppan(D5) (D6) (D7) (D8) (D9) (D10)
4.That on 02.05.1934, under Ex.B44, the Hindu Religious and Charitable Endowment Department (hereinafter referred to as ?HR&CE) declared the suit temple as a family temple and exempted it from the HR & CE Act. The order shows the administration of the suit temple, poojariship and trusteeship vest with the family of the plaintiff's grandfather, senior Deivathadia Pillai, who is the founder of the suit temple. Ex.B23 is the scheme framed under HR & CE Act, in O.A.No.337/34. As per the scheme, the Commissioner of HR & CE has to appoint a committee of three trustees to maintain the properties of the temple. One of the trustees is to be appointed from the eldest member of the hereditary trustee family and other two trustees from the public. Among the three, one has to be elected as an executive trustee to manage the affairs of the temple.
5.It is not in dispute that the founder of the temple, senior Deivathadia Pillai, had two sons, namely, Muthukaruppa Pillai and Vaikunda Ramasamy Pillai. The founder was managing the temple, till he died in the year 1938. Thereafter, till 1942, both the sons of Deivathadiapillai were jointly enjoying and managing the temple, by doing poojas and receiving offerings from the devotees. However, on 12.12.1942, under Ex.B48, they entered into an agreement with regard to the rights in the suit temple and they agreed to manage the suit temple in turn system, commencing from the month of Thai. Accordingly, both of them had been enjoying the temple in the alternative years till 1963.
6.On 06.07.1963, the said Vaikunda Ramasamy Pillai executed a registered settlement deed, in favour of his wife, Ganthimathi Ammal, transferring all his rights in the temple in her name. The same was not accepted by his brother Muthukaruppa Pillai and his son Deivathadia Pillai (D1). Therefore, Ganthimathi Ammal instituted a suit in O.S.No.54 of 1964 before the District Munsif Court, Tuticorin, against Muthukarupppa Pillai and his son Deivathadia Pillai, for injunction, on the basis of the settlement deed dated 06.07.1963. The trial court decreed the suit on 29.01.1965. Muthukaruppa Pillai contested the suit stating that as per the recognised custom and usage, the eldest male member alone is entitled for trustee of the temple. But however, the contention was rejected by the trial court and the suit was decreed, holding that the arrangements between Muthukaruppa Pillai and Vaikundaramasamy Pillai, dated 12.12.1942 and the settlement deed dated 06.07.1963 are true and valid. It was further held that the eldest son alone is not entitled to temple right and the poojari right coupled with emoluments is heritable and partiable.
7.Though in the first appeal in A.S.No.74 of 1965, the judgment and decree made in O.S.No.54 of 1964 was reversed, but eventually, in S.A.No.268/1966, the High Court has upheld the findings of the trial court, by its judgment dated 13.03.1969. Thereafter, no further appeal was filed as against the Judgment in S.A.No.268/1966 and thus it reached finality.
8.Ganthimathi Ammal filed another suit in O.S.No.535/1970 before the District Munsif Court, Tuticorin, against Muthukaruppa Pillai for permanent injunction not to interfere with the management of poojariship, for the years 1971 to 1976. In that suit also, Muthukaruppa Pillai contested on the same ground of rule of primogeniture, but the learned District Munsif decreed the suit under Ex.B84. The same was confirmed in A.S.Nos.115 and 228 of 1973. One Sampantham Pillai along with D2 and D3 in a representative capacity, filed a suit in O.S.No.5 of 1970, on the file of the Sub Court, Tuticorin, for a declaration that the settlement deed dated 06.07.1963 is invalid and also prayed for injunction, restraining Ganthimathi Ammal, from taking over the management of the temple. The said suit was returned, on the ground of jurisdiction, under Ex.B32, but subsequently, it was not represented.
9.The 1st defendant, Deivathadia Pillai filed a suit O.S.No.22/1970 against Ganthimathi Ammal, on the basis of a Gift deed dated 29.12.1963 executed by Vaikunda Ramasamy Pillai. The trial court held that the above settlement is not genuine and valid, so it is not binding on Ganthimathi Ammal and on the other hand, upheld the settlement deed dated 06.07.1963 executed in favour of Ganthimathi Ammal, as true and valid document. Further, the trial court has held that the judgment made in O.S.No.54 of 1964 operates as res judicata. The 1st defendant Deivathadia Pillai preferred an appeal in A.S.No.136/74, against the judgment and decree passed in O.S.No.22 of 1970 and the same was dismissed on 22.07.1976 under Ex.B87.
10.On 13.11.1978 under Ex.B.90, Gandhimathiammal adopted one Ganesan. The adopted son Ganesan/4th defendant filed E.A.No.1128/1981 in O.S.No.54 of 1964, Ex.B93, to record him as legal heir of Ganthimathi Ammal, on the basis of the Adoption Deed dated 13.11.1978 (Ex.B90) and a registered Will (Ex.B92), claiming that he is entitled to poojari right and manage the temple. The application was resisted by the 1st defendant, contending that poojari right would not devolve on the adopted son and the decree passed in the injunction suit is a personal right, but the executing court allowed the application. Aggrieved by the order, Muthukaruppa Pillai preferred a revision in CRP.No.2280 of 1982 before the High Court, Madras. While dismissing the revision petition, the High Court has held that except the right that could be exercised under clause 5 of scheme of 1935, in all other respects, the right accrued to the plaintiff in O.S.No.54 of 1964 could be enforced by the 4th defendant. The High Court further held under Ex.B.125 that till the modification of the scheme, the 4th defendant can enforce his rights against Muthukaruppa Pillai and his heirs.
11.Deivathadia Pillai, 1st defendant filed a suit, O.S.No.177 of 1982 on the file of the District Munsif Court, Srivaikundam, against HR & CE Department, and the 4th defendant for injunction, not to install Hundials in the suit temple, mainly contenting that the suit temple is a private temple. The suit was decreed. Aggrieved by the judgment, HR & CE Department filed appeal, A.S.No.94 of 2005 and the same was dismissed under Ex.B153 and Ex.B156.
12.In the present Suit O.S.Nos.182 of 2002, the plaintiff contented that the suit temple was founded by Senior Deivathadiapillai, who is the paternal grandfather of the plaintiff and the defendants 1 to 3. After the life time of Deivathadiapillai, the suit property devolved upon his sons namely, Muthukaruppa Pillai and Vaikunda Ramasamy Pillai and they were in possession and enjoyment of the suit property, by jointly conducting poojas in the suit temple and telling Kuris and Oracles and receiving emoluments from the worshippers.
13.Whileso, a dispute arose between Muthukaruppa Pillai and Vaikunda Ramasamy Pillai and they partitioned the suit property. Since the suit temple cannot be divided, both of them performed poojas in the suit temple in the alternative years, as per the arrangement dated 12.12.1942. Since Vaikunda Ramasamy Pillai had no issues, he had settled his right of Poojariship, attached with emoluments, in favour of his wife Gandhimathi Ammal, by a settlement deed, dated 06.07.1963. After the death of Muthukaruppa Pillai, the suit temple devolved upon his four sons (i.e) the plaintiff and the defendants 1 to 3, as per the Hindu Succession Act.
14.After the settlement deed, Muthukaruppa Pillai and the 1st defendant, obstructed Ganthimathi Ammal from discharging poojas in the suit temple. Hence, she instituted a suit, O.S.No.54/1964, against Muthukaruppa Pillai and the 1st defendant, for permanent injunction and the same was decreed. On appeal, in A.S.No.74 of 1965, it was reversed and on further appeal, the judgment and decree in O.S.No.54/1964 was affirmed, vide judgment and decree in S.A.No.268 of 1966, upholding the rights of Gandhimathi Ammal in poojariship, attached with emoluments and her management in respect of the suit temple, and also holding that the right of poojariship attached with emoluments is heritable and partiable. After the death of the said Ganthimathi Ammal, her adopted son, Ganesan/4th defendant was performing poojas in the suit temple. Whileso, on 13.04.1994, the defendants 1 to 3 attempted to prevent the plaintiff's possession and enjoyment of the suit temple. Hence, the suit.
15.The 1st defendant filed written statement and additional written statement, disputing the right of the plaintiff. He mainly contended that the suit was instituted at the instigation of the defendants 2 to 4. In view of the judgment passed in A.S.No.22 of 1991, and institution of the suit, O.S.No.5 of 1970, the present suit is not maintainable. Non inclusion of Poojariship in the earlier partition dated 01.07.1976 would impliedly prove that the 1st defendant being an eldest male member is entitled for the same. In view of the admission by the plaintiff in M.C.No.85/1989, that the suit temple is governed by the scheme framed by the HR & CE Department in O.A.No.337 of 1934, he is estopped from filing the suit. The office of Trusteeship is inalienable and impartiable. He is only a proforma defendant and therefore, the judgment made in O.S.No.54 of 1964 will not bind him. The present suit filed after 22 years of withdrawal of O.S.No.5 of 1970, is hit by doctrine of estoppel and laches. The unregistered 1983 agreement is hit by Section 17 of Registration Act. The suit is barred by limitation.
16.After the demise of the 1st defendant, his legal heirs, defendants 7 to 10 were brought on record. They contested the suit. But however, the defendants 2 to 4 supported the case of the plaintiff, without affecting their rights in the suit temple. The 3rd defendant made counter claim, praying the decree to his share for his turn. The 4th defendant contended that the scheme framed in O.A.No.337/1934 never came into effect and also disputed the legitimacy of defendants 7 to 10.
17.The plaintiff in his reply statement has contended that he was not a party in O.S.No.332/1990 and A.S.No.22/1991 and therefore, the judgment and decree passed in the above suit would not bind him. According to the plaintiff, O.S.No.332/1990 is a collusive suit and in the said suit, the judgment passed in S.A.No.268/1966 and 1983 agreement were suppressed. The plaintiff has further contended that the judgment and decree made in S.A.No.268/1966 would bind him and the 1st defendant, was a party to the proceedings.
18.It is further submitted in the reply statement that in various proceedings, the binding nature of the judgment rendered in O.S.No54/1964 was confirmed. According to the plaintiff, O.S.No.5/1970 filed before the Sub Court, Thoothukudi, was not withdrawn, but it was returned by the Sub Court.
19.The trial court relying upon the judgment, passed in O.S.No.54 of 1964 and in O.S.No.535 of 1970, held that the 1st defendant cannot claim right of poojariship, as eldest son, as the right of poojariship is heritable and partiable and he is bound by the judgment in O.S.No.54 of 1964. Ex.A9 agreement cannot be accepted, as it was an unregistered one. The scheme framed by the HR & CE Department Ex.B23 is not applicable to temple, as it was not acted upon, and moreover, the HR & CE Department framed the scheme for administration of the temple, but the temple has no property and the scheme was not dealing with right of Poojariship. However, the trial court dismissed the suit holding that the present suit is barred by the judgment passed in O.S.No.332 of 2010 and A.S.No.22 of 1991; that the suit is also barred under Order 23 Rule 1 and by Limitation Act, in view of the withdrawal of suit, O.S.No.5 of 1970 and earlier partition under Ex.B4 dated 01.07.1976.
20.Aggrieved by the judgment and decree, and the findings, both the plaintiff and the 3rd defendant filed separate appeals, against the dismissal of the suit and counter claim, in A.S.No.93/2007 and A.S.No.9/2008. Despite the finding of the trial court that the rule of primogeniture is not applicable and the scheme framed under Ex.A23 was not acted upon, therefore it is inapplicable to the suit temple, but however the appellants herein have not chosen to challenge the findings.
21.The appellate court allowed the appeals, granting declaration that the plaintiff is entitled to perform poojas as poojari in the suit temple in the alternative, for one year, without affecting the rights of the 4th defendant and consequently, granted permanent injunction, restraining the defendants 3 to 14 from interfering with the plaintiff's possession and enjoyment of the suit temple. The appeal filed by the 3rd defendant was also allowed.
22.Aggrieved against the judgment and decree made in the above appeals, defendants 7 to 10 have filed these appeals, which have been admitted on the following substantial questions of law:-
S.A(MD)No.458 of 20121)Whether the lower appellate court is right in law in decreeing the suit, when the relief sought for is barred by the provisions of Tamilnadu Hindu Religious and Charitable Endowments Act?
2)Whether the lower appellate court is justified in holding that the scheme decree has no application to the suit temple, when the temple is held to be under the control of Board by the High Court in S.A(MD)No.1219 of 2008 dated 14.10.2009?
3)Whether the lower appellate court should not have appreciated the suit temple is an excepted temple and the mode of succession is by the recognised custom and usage and this customary practice has been recognised and accepted by the HR & CE Board while framing the scheme, enabling the eldest member alone to be the trustee?
4)Whether the finding of the lower appellate court have even a proforma party defendant is bound by the finding in the suit is correct in law?
5)Whether the first appellate court is right in not considering that the principles of Order 2, Rule 2 CPC squarely applies since the plaintiff had the cause of action even at the time of filing the suit O.S.No.5 of 1970?S.A(MD)No.597 of 2012
1)Whether the lower appellate court is right in decreeing the suit, when the relief sought for is barred by the provisions of the Tamil Nadu Hindu Religious and Charitable Endowment Act?
2)Whether the courts below should not have appreciated that the scheme decree binds the parties and Civil Court as well and the Civil Court will have no jurisdiction to encroach or interdict in respect of matters that fall within the authority of under the Hindu Religious and Charitable Endowment Act?
3)Whether the lower appellate court should not have appreciated that the suit temple is an excepted temple and the mode of succession is by the recognised custom and usage and this customary practice has been recognised and accepted by the Hindu Religious and Charitable Endowment Board while framing the scheme, enabling the eldest member alone to be the trustee?
4)Whether the lower appellate court had not failed to appreciate that the scheme decree is of the year 1934 and the rights of the trustees is secured under the document ever since and had it not failed to note that the hereditary trustee is entitled to share his emoluments concerning his office in favour of third parties and any such arrangement will not outlive him?
5)Whether the finding of the lower appellate court that even a proforma party defendant is bound by the finding in the suit is correct in law?
6)Whether the order of lower appellate court is right in failing to appreciate that the concept of hereditary poojari is no longer in vogue and had been abolished by the Tamil Nadu legislation in enacting Act 2 of 1971?
7)Whether the first appellate court is right in not considering that the principles of Order 2, Rule 2 of CPC squarely applies since the plaintiff had the cause of action even at the time of filing the suit O.S.No.5 of 1970?
8)Whether the first appellate court is right in not applying t/he principles of order 23, Rule 3 of CPC and reject the suit since admittedly the plaintiff had neither sought nor obtained any permission of the concerned Court of O.S.No.5 of 1970?
23.Heard Mr.V.Raghavachari, learned counsel for the appellants; Mr.J.Ashok, learned counsel for the 1st respondent; Mr.M.Vallinayagam, learned Senior counsel for the 2nd respondent; Mr.D.Nallathambi, learned counsel for the 3rd respondent; Mr.R.Vijayakumar, learned counsel for the 3rd respondent and Mr.Kaithamalai Kumaran, learned counsel for the respondent/3rd respondent in S.A.No.597 of 2012 and 1st Respondent in S.A.No.458 of 2012 and perused the records. Both the parties have filed written submissions.
24.According to the appellants, the entire relief is restricted to poojariship, on the premise that it is hereditary in nature. The defendants 7 to 10 in the suit denied the right of the plaintiff, either to poojariship or to trusteeship and they have also denied the right of poojariship, as one emerged from the concept of joint family properties. It is contended by the appellants that the defendants 2 and 3 filed O.S.No.5 of 1970 on the file of the Sub-Court, Tuticorin, and in the said suit, they have disclaimed the right in the office of poojariship. It is the admitted fact that the poojari is possessed by the deity and he answers to various queries put to him. The qualification to become a poojari is admitted to be customary in nature. The plaintiff and the defendants 2 and 3 had affirmed that duties of poojari cannot be performed by delegation or by outsourcing. The personal qualification prescribed for the poojari-cum-trustee should be the eldest male member in the family. The said fact was challenged by the 2nd defendant in O.S.No.332/1990 and the suit was partly allowed, declaring the 2nd defendant as poojari-cum-trustee, against which, a cross appeal was filed. The appellate court had rejected the case of the plaintiff in entirety.
25.It is further contended that Ex.B61, Judgment in O.S.No.332 of 1990 declares the right of the first defendant as poojari-cum-hereditary trustee. The recognition granted to the first defendant would bind all the parties, including the plaintiff and the defendants. The suit in O.S.No.5 of 1970 at the instance of the plaintiff and the defendants 2 and 3 shows the nature of office. The plaintiffs therein, having abandoned their rights for over a statutory period, are precluded from re-agitating the issue.
26.It is further submitted that in Ex.B48, partition deed entered into between the sons of Deivathadia Pillai namely, Muthukaruppa Pillai and Vaikunda Ramasamy Pillai, the suit temple and the office of hereditary trusteeship was not included, since it was not treated as a joint family property. It is further submitted that if really Vaigundaramasamypillai had a right, the need for executing a settlement under Ex.B83 would not arise. Even, in the partition under Ex.B4, took place between the plaintiff and the defendants 1 to 3 and their father, the suit temple was consciously excluded. Therefore, it is contended that the appellate court, based on Exs.B4 and B48, ought to have held against the plaintiff.
27.It is further contended that the finding of the appellate Court that the date of death of Muthukaruppapillai alone determines the legal entitlement of his sons, is erroneous. If the claim of the plaintiff and the defendants 2 and 3 is one of joint family property, it would also include the deceased Deivathadia Pillai and their father.
28.It is further submitted that the learned Judge had erroneously treated the suit temple, as joint family properties, which according to the appellants, that it was no case of either parties before the Court below. Ramasamy Pillai had not claimed as a joint family property, but as a legatee under a will purported to have been executed by his father.
29.It is further submitted that the appellate Judge had failed to make a distinction between withdrawal of a suit and its abandonment. Admittedly, O.S.No.5 of 1970 filed by the plaintiff and the defendants 2 and 3 was not prosecuted and therefore, it is an abandonment and it will amount to withdrawal of the suit. It is further contended that the appellate court has erred in shifting the burden, on the defendants, to make out a case of estoppel.
30.It was also contended that the appellate court has erred in overlooking the amendment to Section 55 of the Tamil Nadu Hindu Religious and Charitable Endowments Act. Earlier, the poojariship was enjoyed by succession, and by virtue of amendment Act 2 of 1971, the hereditary poojariship had been done away with. The poojari is a Servant and he can be removed by a trustee. Therefore, it is submitted that once the Poojari is treated as a servant, there is no necessity to treat the office of poojariship, as property of the temple. It is further contended that the learned appellate Judge erred in admitting Exs.B156 and B.160 as additional documents, without recourse to Order 41 Rule 27 CPC. It is further contended that settlement deed executed in favour of Ganthimathiammal, by her husband Vaikunda Ramasamy Pillari, cannot have any force, as she is a lady, and that she could not perform poojas.
31.It is further contended that when there is a decree in O.S.No.54/1964, the 1st defendant raised objection and the matter was argued in CRP.No.2280/1982 and WP.No.6737/1982 and this Court observed that the scheme decree as it exists, would confer right only upon the eldest male member and also clarified that the rights secured under clause 5 of the scheme decree, alone should be respected while enforcing the decree in O.S.No.54/1964. The learned counsel has relied upon the following Judgments in support of his arguments.
"1992 (2) SCC 327 (Commissioner Vs. P.S.Sethurathinam) ; 1998 (6) SCC 643 (T.Lakshmikumara Thathachariar Vs. Commissioner, H.R.C.E and others) ; 1972 (2) SCC 11 (Seshammal Vs. State of Tamil Nadu); 2000 (3) L.W 931 (Kumaraswamy Gurukkal Vs. Commissioner, H.R & C.E.) ; 1911 (1) MU 952 (V.Rama Das and others Vs. K.Hanumantha Row); 2003(2) CTC 408 ( Arulmighu Kumbeshwarar Koil, Kurinjipadi Vs. The Commissioner, H.R&C.E. Dept.); 1964 (2) SCR 647 ( Ahmad Adam Sait Vs. M.E.Makhri) ; 1965 (1) SCR 815 ( CIT Vs. Mr.P.Firm Muar) ; AIR 1979 SC 1314 ( Badri Nath Vs. Punna); AIR 1979 SC 1682 ( Profulla Chorone Vs. Stya Choron); AIR 1972 Mad 119 (Venkataraman Vs. Thangappa Gounder); 1974 (2) MLJ 406 (The Commissioner, HR&CE Vs. Vaihinath Gurukkal and Others); 1964 (1) MLJ 384 (Babu Gurukkal Vs. The Commissioner, HR&CE Board) ; 99 LW 675 (Chettimai C. Nanjappa Chettiar Vs. S.N.Kuppuswami Chettiar); 1964 (2) MLJ 560 (Muthuswami Gurukal vs. Ayaswami Thevar) ; 1951 (2) MLJ 232 (Andavar Vs. Periathambi Padayachi) ; AIR 1981 Patna 339 (Sitesh Kishore Vs. Ramesh Kishore); AIR 1936 PC 318 (Ganesh Chunder Vs. Lal Behaly); 2010 (8) SCC 423 (Shalimar Chemical Works Limited Vs. Surenda Oil and Dal Mills); 2001 (10) SC 619 (State of Rajasthan Vs. T.N.Sahani and Others); 97 LW 562 (Margachari, V.K. Vs. M.R.Krishnaswami Mudaliar, etc.); 2004 (2) LW) 695 (Commissioner H.R&C.E Vs. Senthamarai Kannan (died) and others) ; AIR 1979 Cal 168 (Anath Bandhu Vs. Krishna Lal); 1987 1 SCC 5 (Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior)"
32.Per contra, the learned counsel for the respondents submitted that the objections/defence raised by the appellants in the suit as well as in the second appeal were all rejected from the lower court to the Supreme Court in various proceedings. Even in O.S.No.54/64, after negativing all the allegations of the appellants' father and grandfather, the court held that;
a)The poojari rights attached with emoluments is heritable and partiable and subject to Succession Act,
b)The above rights devolved on two sons of Deivathadia Pillai (i.e) Muthukaruppa Pillai and Vaikundaramasamy Pillai and
c)Rule of primogeniture was not followed in the suit temple.
33.The respondents further submitted that the judgment and decree made in O.S.No.54 of 1964 was confirmed in S.A.No.268 of 1966 and thus reached its finality. Subsequenlty, after the death of Ganthimathi Ammal, her adopted son Ganesan filed a petition in E.A.No1128/81 in O.S.No.54/64, under Order 21 Rule 16 CPC, to record him as legal heir of Ganthimathi Ammal. Muthukaruppa Pillai and his son Deivathadiya Pillai objected to E.A.No1128/81 in O.S.No.54/64, but the court rejected their contentions and held that the Adoption deed and the Will executed in favour of the 4th defendant, are true and valid and allowed the 4th defendant to take action, on the basis of the decree in O.S.No.54 of 1964. The said order was confirmed by the High Court in CRP.No.2280/82, granting liberty to Muthukaruppa Pillai and his son Deivathadiya Pillai to challenge the adoption and the alleged Will, in appropriate proceedings. Thereafter, the matter went upto Supreme Court in C.A.No.645/87 and the Apex Court also affirmed the order made in CRP.2280/1982, allowing Ganesan/D4 to enjoy the suit temple and perform pooja. Thereafter, the Deputy Commissioner, HR&CE, Tirunelveli and Madras refused to modify the scheme in O.A.No.5/88 and A.P.5/89 respectively, stating that the same can be done only, by exercising suo motu powers.
34.According to the respondents, the plea of rule primogeniture was rejected in O.S.No.54/64 and E.A.No.1128/81. The lower court has also rejected the plea that after the death of Vaikunda Ramasamy Pillai, his rights over the temple would not devolve on his wife Ganthimathi Ammal and after her death, on her adopted son Ganesan.
35.The respondents have submitted that as regards the scheme of 1935, the courts below rightly found that it did not deal with poojari rights coupled with emoluments and that it was not acted upon and no trustees were appointed as per clause 5 of the scheme. It is further contended that the courts below ultimately found that the scheme was not applicable to the present suit.
36.It is further submitted that the defence, Tamil Nadu Act 2/1971 abolished servant poojari and hence there is no right of hereditary poojari, was not pleaded either in the written statement of D1 or in the written statements of D7 to D10 and no issues were framed and that no evidence was let in. Therefore, in the second appeal, it cannot be raised as it is not a pure question of law. According to the respondents, Section 55 of the HR & CE Act is not applicable, since the suit claim is a property as settled in S.A.No.268/1966.
37.Relying upon Ex.153-judgment in O.S.No.554/96, DMC Tuticorin, the respondents have further submitted that the suit temples are private temples and hence HR&CE Act is not applicable to the present case and as per the judgments and decrees passed in O.S.Nos.22/70 and 52/70, Muthukaruppa Pillai and his legal heirs are bound by the decree in O.S.No.54/64, which has been confirmed by the High Court in S.A.No.268/66.
38.It is further submitted that the 1st appellant/7th defendant filed two suits, O.S.Nos.323 and 324 of 1998 on the file of the Sub Court, Tuticorin, against Ganesan, seeking to declare the arrangement deed dated 12.12.42, settlement deed dated 06.07.63 and the judgment and decree in O.S.No.54/64 and the orders in E.A.No.1128/81 as null and void. The above suits were dismissed and the same was confirmed in S.A.No.1219 of 2008.
39.It is further contended that rule of primo geniture is not applicable to the present case. According to the respondents, the findings with regard to scheme, arrangement, settlement, in favour of Gandhimathi Ammal, judgment in O.S.No.54/1964 are concurrent findings, which does not require interference.
40.It is further contended that Muthukaruppa Pillai's legal heirs, namely, Meeankshisundaram/D3 and the plaintiff/Thirugnanasambandam are entitled to perform poojas and receive emoluments for 4 months each in Muthukaruppa Pillai's turn and the lower appellate court has rightly held that the judgment and decree in O.S.No.332/90 and O.S.No.623/96 would not bind the plaintiff and the 3rd respondent, as they were not parties to that suit.
41.It is further contended that the findings in O.S.No.332/90, which was filed by Ramasamy Pillai against his elder brother Deivathadia Pillai, claiming hereditary trusteeship for the suit temple, based on a Will executed by his father, Muthukaruppa Pillai, would not bind the 3rd defendant, as he was not party to that suit.
42.With regard to the submission of the counsel for the appellants that counter claim against co-defendant is not maintainable, it is contended that such defence was not raised before the trial court and the first appellate court. Therefore, the contention regarding counter claim should not be entertained, which has been raised for the first time that too, in the second appeal stage, without there being any pleadings.
43.It is further contended that the present suit is between the legal heirs of Muthukaruppa Pillai, (i.e) between the brothers and therefore, in the interest of justice, the claim of the 3rd defendant has to be considered as a cross suit. Learned counsel for the 3rd defendant relied upon a judgment of this Court in A.Mohamed Sulaiman and another vs. A.Ameena Beevi, 2013 (2) CTC 735, in support of his contention that counter claim against co- defendant is sustainable.
44.Both the parties have made elaborate arguments. However, I am restricting their arguments only with regard to the questions of law raised in these appeals.
45.The main contention of the appellants is that as per Clause 5 of the Scheme framed by the HR&CE Department in the year 1934, under Ex.B23, rule of primogeniture is applicable to the suit temple and as per the abovesaid Clause, the Junior Dheivathadiapillai(D1), the eldest male member of Muthukaruppa Pillai, alone will be entitled for Poojariship. At this juncture, it is necessary to extract clause 5 of Scheme 1935, which reads as follows:-
?5.The place of the hereditary trustee shall be filled in by the eldest male member of the family of the hereditary trustee.?
46.The respondents attacked the scheme framed by HR&CE Department on two folds. Firstly, the scheme decree was not acted upon and secondly, the scheme relates to only the trusteeship and not for Poojariship. Ex.B.108 is the Judgment passed by this Court in C.R.P.No.2280 of 1982 and W.P.No.67337 of 1982, wherein it has been held that inspite of existence of the scheme, the right of Poojariship is sustainable. It was also confirmed by the Hon'ble Supreme Court in C.A.No.645 of 1987. It is not in dispute that in O.S.No.177 of 2004 filed by Dheivathadiapillai(D1), the District Munsif, Srivaikundam, held under Ex.B153 that the suit temple is a private temple. Ex.B.156 shows that in the appeal filed by the HR&CE Department, the judgment was confirmed. The first defendant has not let in any evidence to show that the Scheme was acted upon.
47.It is seen that under Ex.B.82 Muthukaruppa Pillai and Vaikundaramasamy Pillai had entered into an agreement to manage and to perform poojas to the temple in turn system, alternative years. Ex.B.83 is the settlement deed, dated 06.07.1963 executed by Vaikundaramasamy Pillai , in favour of his wife Gandhimathiammal and the same was objected by Muthukaruppa Pillai. Therefore, Gandhimathiammal filed a Suit in O.S.No.54 of 1964 claiming right to manage and administer and to perform pooja in the suit temple in alternative years. The first defendant Dheivathadiapillai had taken a specific defence of applicability of rule of primogeniture and also contended that the suit temple is an exempted temple from the Act and the mode of succession is by recognised customs and usage and the same was accepted by the HR&CE Department, while framing the scheme, Ex.B23. But the trial Court rejected the defence and decreed the suit and the same was confirmed in S.A.No.268 of 1966 under Ex.A1. The Courts have further held that right of Poojariship attached with emoluments is heritable and partiable.
48.In the subsequent proceedings initiated by the 4th defendant Ganesan in E.A.No.1128 of 1991 in O.S.No.54 of 1964 under Ex.B.93 the Court has held that the right of poojariship devolved on the 4th defendant, as per the judgment passed in O.S.No.54 of 1964 and the objection raised by the first defendant Dheivathadiapillai was rejected. In C.R.P.No.2280 of 1982 and W.P.No.6782 of 1982 under Ex.B.102, the High Court has held in para 6 that except for all the right to exercise under Clause 5 of the scheme, in all other respects, the right by the plaintiff in O.S.No.54 of 1964 could be enforced by the respondents herein. The said findings were also confirmed by the Supreme Court, in C.A.No.645 of 1987. Moreover, in the present case, both the Courts below on the basis of the evidence, have concurrently held that Ex.B23, scheme was not acted upon and also not applicable to the suit temple. As stated supra, the findings of the trial court were not challenged by the appellants.
49.Muthukaruppa Pillai as plaintiff filed a Suit in O.S.Nos.324 of 1998 against Ganesan, to declare him alone as the hereditary trustee/poojari, who can deliver Arulvakku and entitled to receive emoluments, without any interference or break for the suit temple and also for consequential injunction restraining the 4th defendant/Ganesan from interfering with the right of the plaintiff in the suit temple. The plaintiff in the above suit also sought to declare the arrangement deed, dated 12.12.42, settlement deed, dated 06.07.63 and the judgment and decree in O.S.No.54/64 and the orders in E.A.No.1128/81, as null and void. The suit was decreed, however,on appeal, it was reversed. On further appeal, S.A(MD)No.1219 of 2009, by a common order, dated 14.10.2009, this Court has held as follows:-
"35.The High Court, in the judgment in S.A.No.268 of 1966 dated 13.03.1969 under Ex.B3, had held that the poojariship and emoluments are heritable and partible and the settlement deed dated 12.12.1942 and 06.07.1963 are valid documents and binding upon the parties. In O.S.No.535 of 1970, a specific issue namely ?whether it is open to the defendant(Muthukaruppan Pillai, the grandfather of the plaintiff) to contest his rights and title of the plaintiff (Gandhimathiammal) after the decree in O.S.No.54 of 1964 on the file of this Court for all or any of the reasons set forth in the written statement? was framed. While deciding this issue the Court has held under issue No.2 which runs as follows:
?19.Issue No.2: It was contended in the written statement by the defendant that the settlement deed is not valid, that the plaintiff being a woman cannot be a trustee poojari, that the law of primo-geniture is alone applicable in the inheritance of the suit temples and that the plaintiff's husband is entitled to be in office by the leave and licence of the defendant. These points have been discussed and finally decided in O.S.No.54/64. On this point, the High Court judgment in S.A.No.268/66 had given a definite finding. The finding in the said judgment is conclusive. The settlement deed was held to be valid and the plaintiff was held to be a trustee and the plaintiff's husband had right in the temples by inheritance. The points raised by the defendant had been finally decided in S.A.No.268/1966. Therefore, it is not open for the defendant to contend against the validity of the settlement deed copy of which was marked as Exhibit A.2. The issue is found against the defendant.?
36.In appeal suits in A.S.Nos.115 and 228 of 1973 dated 05.08.1974 under Ex.B9 the judgments were confirmed. In C.R.P.No.2280 of 1982 under Ex.B16 again the validity of the execution of the settlement deeds, the character of the suit property and the judgment in O.S.No.54 of 1964 and the adoption and the ?Will? were discussed thread-bare and His Lordship Mr.Justice Sathiadev had held as follows:
?S.A.No.268 of 1966 was filed in this Court, and it decreed her claim by holding that a female could succeed and function through a proxy for office of poojariship; and she had inherited the hereditary office in question under the settlement deed dated 06.07.1963, and what she had acquired was in the nature of heritable and partible properties where priestly duties are combined with personal interest in the emoluments, with all the rights which her husband had acquired under an arrangement from his brother, and which had been put into practice for fifteen years, and had accrued in her favour under settlement deed dated 06.07.1963. By relying upon the decision of the Supreme Court in Raja Kuer V. Ram Rattan Pandey (1955 II MLJ 49 SC) and a Full Bench decision of this Court in Annava Thantri V. Sammakka Rengu (ILR 41 Madras 886), it was held that, though she was a female, she had the right to hold the priestly office and manage the temple properties with the emoluments attached to it. The arrangement arrived at between the brothers would be binding not only upon them, but also their representatives, till modified either by common consent or in some manner known to law. Learned Judge, also referred to the well settled proposition of law, that in a case of religious office with emoluments attached thereto, it is heritable and partible according to the laws of inheritance applicable to private properties, and that, any right to worship carries with it the right to receive offerings, and the said right to office would devolve like any other property according to the ordinary law of inheritance applicable to parties. In the instant case, which had been argued out in extents in second appeal, this court had made a thread-bare consideration of the rights she had acquired, though the suit was filed for the relief of injunction. These findings have become final.?
37.Therefore, all the above issues in respect of the settlement deeds dated 12.12.1942 and 06.07.1963 and the decree in O.S.No.54 of 1984 and the scheme were the issues before the earlier suits in O.S.No.54 of 1964,and in O.S.No.535 of 1970,and in A.S.Nos.115 and 228 of 1973 and in C.R.P.No.2280 of 1982 and the issues have been already decided and therefore, it has become final and the issues raised by the plaintiff in these two suits are barred by res judicata."
Ultimately, at paragraph 56, this Court held as follows:-
?56.To sum up the answers for the questions raised in this second appeal, I am of the considered view that;
1.The lower appellate court has misconstrued the scheme and has failed to note that the arrangement between the two brothers was upheld in the earlier proceedings which has become final.
2.The plea of the plaintiff with regard to B36 scheme that it is not barred under Section 11 of C.P.C as the same was not produced in the earlier suit is wrong as the High Court has discussed about the same.
3.The learned Additional District Judge has no jurisdiction to declare the decree in O.S.No.54 of 1964 as null and void when the same has been confirmed by the Hon'ble High Court in S.A.No.268 of 1966.
4.The learned Additional District Judge has no jurisdiction to declare that the 1942 arrangement, 1963 settlement and the order in E.A.No.1128 of 1991 are void when all the above have been upheld by the Hon'ble Apex Court in C.A.No.645 of 1987.
5.When the Hon'ble Supreme Court has held that the office of poojariship is heritable and partiable, the learned Additional District Judge was not right in declaring that Ex.A2 agreement, Ex.A6, settlement deed, are not binding on the plaintiff.
6.The suits are barred under Section 11 of C.P.C., when the decree in O.S.No.54/64 and C.S.No.535/1970 have become final.
7.The learned Additional District Judge was not right in relying upon Ex.B36, scheme, when the Principal Bench of this Court in C.R.P.No.2280 of 1982 had categorically found that the civil court decree in O.S.No.54 of 1964 will co-exist along with Ex.B36, scheme until the scheme is modified.
8.The courts below were right in holding that the plaintiff is the son of Deivathadiya Pillai relying upon Exs.A5 to A7, and it is not for the defendant to question the same.
9.The plea of 'Rule of Primogeniture' is based on the scheme and this was never been an issue before the courts below.?
50.But this Court while allowing the appeal has observed that the plaintiff in that suit namely, Muthukaruppa Pillai is a hereditary trustee, as per clause 5 of the scheme is applicable. The observation made in S.A(MD)No.1219/2008 is not binding on the plaintiff and the 3rd defendant, as they were not parties to the proceedings and as held in the same judgment, rule of primogeniture was not raised in the suit. In view of my findings supra, I do not find force in the contention of the appellants that the appellate court has decided the issue against the findings in S.A(MD)No.1219/2008.
51.The learned counsel for the respondents relied on a Judgment of the Hon'ble Supreme Court, reported in 1970 (1) SCC 673 ( Sri Bhavanarayanaswamivari Temple vs. Vadapalli Venkata Bhavanarayanacharyulu) for a proposition that scheme can be framed to manage the properties of the temples, but in this case, there is no property available. In paragraph 6, it has been held as follows:-
"In support of the contention that the decision rendered by the Board was only an incidental one, it was urged that the essential purpose of framing of a scheme for the management of temple is to see that the temple's administration is carried on properly; and" in such a proceeding it is not necessary to determine what all properties the temple owns. We are unable to accede to this contention. A scheme framed for the better management of a temple must necessarily show therein the properties of the temple. Before deciding to frame a scheme the authority framing the scheme must know the nature and extent of the trust funds. There can be no scheme of management of a temple in vacuum. As observed by the Judicial Committee in Chotalal Lakhmiram and ors. v. Manohar Ganesh Tambekar and ors.:
"Until the trust funds are ascertained, it seems impossible that any scheme can be settled."
Varadachariar J. In (Sri Mahani) Sitaram Dass Banaji vs. Madras Religious Endowment Board, Madras and Others; observed. that the power given by s. 63 to the Board for framing a scheme for the management of a mutt,-a power similar to that conferred on the Board under S. 57 for framing scheme for the management of a temple-carries with it the power to settle what the properties of the institution are. A scheme for proper administration of a temple must necessarily provide for the proper administration of its assets. The persons empowered to manage must know what properties are to be governed by the scheme and what the resources of the temple are.
52.Admittedly, the scheme was not framed for proper administration of the assets and funds of the temple. In view of my findings supra, and in the light of the judgment, this Court does not find valid reason to upset the concurrent findings of the courts below.
53.The next limb of argument of the learned counsel for the appellants is that the suit is barred under Order 2, Rule 2 of CPC and Order 23, Rule 3 of CPC. The appellants have heavily relied on the order passed in O.S.No.5 of 1970. Ex.P31, suit extract, shows that the defendants 2 and 3 along with one another person filed the suit in a representative capacity of the worshippers, challenging the settlement deed dated 06.07.1963 executed by Vaikundaramasamy Pillai in favour of Gandhimathiammal. It is the contention of the appellants that the suit was withdrawn without liberty and the plaintiff ought to have claimed this right in the earlier suit. Therefore, the present suit is barred under Order 23, Rule 1 of CPC and it is also hit by Order 2, Rule 2 of CPC.
54.Column 7 in Ex.B.31 would show that the suit was returned to be presented before the proper forum. The appellate Court relying upon the Judgment reported in 1997 (9) SCC 688 (Hanamanthappa Vs. Chandrasekarappa) has come to a conclusion that non representation would not amount to withdrawal of the suit. The counsel for the appellant relied upon the Judgment of the Hon'ble Apex Court reported in AIR 1987 (1) SCC 5 (Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior), in support of his contention that the present suit is barred. In that case, a writ petition was withdrawn without permission to institute a fresh petition and while considering the second writ petition, the Hon'ble Apex Court has held that the remedy in the writ petition should have been deemed to have been abandoned by the petitioner in respect of cause of action relied on in the writ petition and it would not be open to him to file a fresh writ petition on the same cause of action. While considering the issue, the Hon'ble Apex Court has held that under Order 23, Rule 1, when a plaintiff institutes a suits in a court and thereby avails of a remedy, he cannot be permitted to institute a fresh suit, in respect of the same subject matter again, after abandoning the earlier suit or by withdrawing it, without permission of the court, to file a fresh suit.
55.It is seen from the records that the cause of action for the suit in O.S.No.5 of 1970 and the present suit are totally different. As stated supra, the suit in O.S.No.5/1970 was instituted on the ground that the settlement executed by Vaikundaramasamy Pillai in favour of his wife is invalid and the decree passed in O.S.No.54 of 1964 is inexecutable, but the cause of action for this suit is not same. In 2007 (2) L.W 837 this Court has held that to bring the suit within the purview of Order 2, Rule 2, three ingredients have to be fulfilled. (i) the earlier suit and the latter suit must arise from the same cause of action ; (2) the two suits must be between the same parties and (3) the earlier suit must be decided on merits. In the light of the above Judgment and finding, the contention of the appellants that the suit is barred under Order 23, Rule 1 of CPC.,and Order 2, Rule 2 of CPC., cannot be countenanced. The judgment reported in AIR 1987 (1) SCC 5, is not applicable to the facts of this case.
56. It is further contented by the appellants that poojari is only a servant, which was abolished by amending Act, 2/1971, so as per Section 55 of HR&CE Act, the suit is barred. It is seen from the records that the appellant has taken this plea for the first time in the Second Appeal. Neither the first defendant, nor the defendants 7 to 10 have raised this point in their written statements. Hence, the trial Court and the appellate Court have not framed necessary issues to render findings. Further, it is also not a pure question of law, which could be permitted to be raised first time in this appeal. But, however, this Court is inclined to consider the applicability of the Act to the present case.
57.It is not in dispute that the provisions of the HR&CE Act is applicable only to Public and Agama Temple i..e, construction of temple, installations of idols therein, conduct of worships of the deity, the appointment of priest etc. Admittedly, the suit temple is not constructed, deities are not installed and poojas are not done, according to Agamas. and therefore, the Act is not applicable to a private temple / family temple.
58.As held supra, under Ex.B.153 Judgment passed in O.S.No.177 of 2002 and Ex.B.156 Judgment passed in A.S.No.22 of 1991, the competent civil courts have held that the suit temple is a private temple. Moreover, it was already held that the right of poojariship attached with emoluments is heritable and partiable. Therefore, the contention of the appellants on that score, does not merit acceptance.
59.It is contended by the appellants that the counter claim made by the 3rd defendant is not maintainable. In 2013 (2) CTC 735 (A.Mohamed Sulaiman Vs. A.Ameena Beevi (Deceased), this Court relying upon the Judgment reported in 1997 (2) CTC 717 (C.Kasinathan vs. N.Athiappan Servai and others), has held as follows:-
"18. A perusal of the Order 8 Rule 6A of CPC , no doubt contemplates that a counter claim in a suit has to be made against the plaintiff. A careful perusal of Rule 6A would indicate that it is not very specific that the counter claim by a defendant has to be made only against the plaintiff. In other words, in a given circumstances, it does not specifically bar the filing of a counter claim against the co-defendant as well. Why I am expressing this view is that the plea of the parties and relief sought for vary in every suit and only by taking into consideration of the facts and circumstances of each case, it has to be determined as to whether such counter claim raised by a defendant can be restricted or permitted only against the plaintiff or it can be extended even to the other co-defendant. For instance, in a suit for partition, the parties are being interchangeable and therefore a defendant therein can be considered to be a person suing. At this juncture, I would like to rely on the decision of a learned single Judge in C.Kasinathan Vs. N.Athiappan Servan and others ( 1997(II) CTC 717) at paragraph 7 as follows:-
"7. The lower appellate Judge has not properly considered the other question that Section 4(1) of the Act will come into play only when the alienees sue for partition. In Sri Booman V. Kuppammal Achi 1968 (2) MLJ 36, it was held that a defendant in a partition suit can be considered to be a person suing. In Siba Prasad V. Bibhuti Bhusan, AIR 1989 Cal. 35, a similar decision was taken to this effect. In Valliammal V. Rajathiammal and 11 Others 1993(2) LW 334 also the learned Judge has taken the same view. "
19. Therefore, when a defendant in a partition suit can be considered as a party suing also, I am of the view that such defendant can also make a counter claim under Order 8 Rule 6A in a partition suit against the co- defendant. When such claim is exercised, certainly, the person making such plea becomes the plaintiff insofar as that relief is concerned and the person against whom such claim is made, becomes the defendant in the very same suit. That is why sub-clause (2) of Order 8 Rule 6A was very specific in saying that such counter claim shall have the same effect as a cross suit so as to enable the court to pronounce the final judgment in the same suit both on the original claim and on the counter claim. Therefore, in my considered view, it cannot be said that Order 8 Rule 6A in stricto sensu is applicable only as against the plaintiff and not against a co-defendant."
60.In 2000 (1) L.W. 593 in the case of Karuppayee Ammal Vs. Ramalingam Pillai, this Court has held that counter claim by the defendant can be maintained only against the plaintiff and not against the defendant. But in view of the latest Judgment of this Court, with great respect, I am not following the Judgment reported in (2000 (1) L.W. 593). The present suit is in the nature of partition suit, hence I concur with the findings that the counter claim is maintainable in this case.
61.Indisputably the first defendant was a party to the suit in O.S.No.54 of 1964. The first defendant was impleaded as defendant in the suit only to bind him for the decision in the suit. The first defendant was well aware of the Judgments passed in O.S.No.54 of 1964 and S.A.No.268 of 1966, wherein, the Courts have held that Poojariship attached with emoluments is heritable and partiable, so it must devolve in accordance with the Hindu Succession Act. The 1st defendant and his legal heirs / the appellants are bound by the Judgment passed in O.S.No.54 of 1964.
62.Way back in 1934, under Ex.B44 HR&CE Department has declared the suit temple as family temple. Further, the suit temple has been declared as private temple vide judgment in A.S.No.22 of 1991 and it attained finality. In view of that, the temple being declared as private temple, HR&CE Act is not applicable to the suit temple. Further, the Scheme 1935 was not acted upon and only arrangement dated 12.12.1941 was in vogue. Hence, the substantial questions of law raised are answered against the appellants.
63.The other judgments are relating to the appointment of trustees, powers of Commissioner and Deputy Commissioner to frame scheme to the public temple. But, however, in the present case, in view of the findings supra, in my considered opinion that the judgments are not applicable to the facts of the present case.
64.In the result, the second appeals are dismissed with costs, confirming the Decree and Judgment made in A.S.No.93 of 2007 and A.S.No.9 of 2008, dated 16.04.2012, on the file of the learned Trainee District Judge cum Additional Sub Judge, Tuticorin, in reversing the Judgment and Decree in O.S.No.182 of 2002, on the file of the learned District Munsif, Srivaikundam. Consequently, connected miscellaneous petitions are closed.
To
1.The Trainee District Judge cum Additional Sub Judge, Tuticorin
2.The District Munsif, Srivaikundam.