Madras High Court
By Its President vs Tiruthangal Nadar Kottapakkam ... on 18 December, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
S.A.(MD) No.735 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 05.12.2024
PRONOUNCED ON : 18.12.2024
CORAM: JUSTICE N.SESHASAYEE
S.A.(MD) No.735 of 2015
and
M.P. (MD) No.1 of 2015
Vetri Gnaniyar Vagaiyarakkal Thayathigal
Sangam Sivakasi (Registration No.73/2002)
By its President
Door No.117, Chairman A.Shanmugam Road
Sivakasi Taluk, Virudhunagar District ... Appellant
Vs
1.Tiruthangal Nadar Kottapakkam Vagaiyara
Thayathigal Sangam (Registration No.45/2001)
By its President
Door No.7, Nadar Pillayar Kovil Street
Thiruthangal Town - 626 130
Sivakasi Taluk, Virudhunagar District
2.Chennai Vazh Thiruthangal Nadar
Kottapakkam Vagaiyara Thayathigal Sangam
By its President
New No.225, Old No.70
Thandaiyarpet High Road
New Vannarapettai, Chennai ... Respondents
__________
https://www.mhc.tn.gov.in/judis
Page 1 of 30
S.A.(MD) No.735 of 2015
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the judgment and decree dated 08.09.2015 made in A.S.
No.54 of 2012 on the file of Sub Court, Sivakasi, reversing the judgment and
decree dated 20.09.2012 made in O.S. No.59 of 2012 on the file of District
Munsif's Court, Virudhunagar.
For Appellant : Mr.A.V.Arun
For Respondents : Mr.A.K.Sriram, Senior Counsel
for Mr.R.Karunanidhi
JUDGMENT
The plaintiff, who was successful in having a scheme framed for certain temple and properties described in suit 'A' Schedule, but tasted a reversal in fortune in A.S. No.54 of 2012 preferred by the defendants, is the appellant herein.
2. The facts on which the plaintiff rests its cause of action are:
a) The plaintiff Vetri Gnaniyar Vagaiyarakkal Thayathigal Sangam, is a society registered under the Societies Registration Act. The first defendant is another society and it goes by the name Thiruthangal Nadar Kottapakkam Vagaiyara Thayathigal Sangam. The 2nd __________ https://www.mhc.tn.gov.in/judis Page 2 of 30 S.A.(MD) No.735 of 2015 defendant is an unregistered body of association of person associated with the 1st defendant. For the sake of clarity, the plaintiff would be referred to as "Vetri Gnaniyar Sangam" and the defendants would be referred to as "Kottapakkam Sangam".
b) The suit property is described as a block of land measuring about 50 cents in T.S. No.105 plus a temple with 'Malaiamman' as the principal deity. Besides the temple, there is a mandapam, madappalli, well, and motor shed etc. within the aforesaid plot of land. The property is well protected by a compound wall.
c) The members of the plaintiff and the defendants belong to two different sect of the same community. While the plaintiff's sub-sect is called Vetri Gnaniyar, the defendant's sub-sect is known by the name 'Kottapakkam'.
d) The consecration of Malaiamman has happened, sometime in 1875.
Malaiamman, indeed was a young girl from Vetri Gnaniyar sect and she married a certain Gurusamy of Kottappakkam sect. In 1872, Gurusamy died when the young girl was yet to attain puberty, and the the little girl had committed Sati and died. However, and very surprisingly, the red saree that she was wearing was untouched by the __________ https://www.mhc.tn.gov.in/judis Page 3 of 30 S.A.(MD) No.735 of 2015 flames. This saree was began to be preserved with reverence. It is in her memory the young girl came to be worshipped. And a temple for Malaiamman came to be established in 1875, and it is being worshipped by both the sects of Vetri Gnanyiar and Kottapakkam. Accordingly, the temple and the appurtenant landed property described in 'A' Schedule jointly belonged to the members of the plaintiff and the defendants.
e) Be that as it may, a certain Ponnappa Nadar & another had laid a suit in O.S.728 of 1915 before the Principal district Munisff Court, Srivilliputhur, for declaration of title and for prohibitory injunction, against one Rakkayi ammal and two others. That suit came to be decreed vide Ext.A15 decree.
f) Challenging Ext.A15 decree, the 2nd defendant preferred A.S.15/1919.
And the first appellate court allowed the appeal Vide Ext.A17 judgement (Ext.A16 is the decree) and held in paragraph 12 thereof, that both the plaintiffs and the defendants “were jointly in possession of the nandavanam for a long time till 1906 and that therefore both of them should be held jointly entitled to the property.” Now, it is the plaintiff's turn to challenge the judgement and the decree of the first __________ https://www.mhc.tn.gov.in/judis Page 4 of 30 S.A.(MD) No.735 of 2015 appellate court in S.A. 1797 of 1919, before this Court and this Court vide Ext.A18 judgement dismissed the same and confirmed the findings of the first appellate court.
g) While so, those who belonged to Vetri Gnaniar sect had filed O.S. No. 4 of 1988 before the District Munsiff's Court, Sattur, for partition of 'A' Schedule property herein, but this suit was dismissed by the trial Court vide Ext.A20, judgment dated 29.08.1997. The trial court held that the 'A' Schedule property is impartible.
h) Thereafter, when the defendants were offered to put up some construction in the 'A' Schedule property, the plaintiff approached this Court with another suit in O.S. No.86 of 2006 before the District Munsiff Court, Sivakasi, for a decree of prohibitory injunction that the defendants should not make unilateral construction without reference to the plaintiff. That suit came to be decreed vide Ext.A.29, judgment and Ext.A28, decree. It has attained finality.
i) It is in these circumstances, the plaintiff has laid the present suit for framing a scheme for administering the affairs of the temple and the appurtenant properties described in 'A' Schedule property. This suit was laid as O.S.143 of 2008 before the District Munsiff Court, __________ https://www.mhc.tn.gov.in/judis Page 5 of 30 S.A.(MD) No.735 of 2015 Sivakasi and was later transferred to District Munsiff Court, Virudunagar where it was taken on record as O.S.59 of 2012. Indeed along with the plaint, they also made available a draft scheme for the benefit of the Court.
3.1 Admitting Ext.A19 judgement, but resisting the present suit, the first defendant has filed its two written statements. In paragraphs 12,13 and 16 of its first written statement it alleged that hitherto the affairs of the temple was jointly be managed both by the plaintiff as well as by the first defendant. However, it desired to file an additional written statement and filed I.A. No. 418 of 2011 for receiving the additional written statement. It may have to be stated that along with the additional written statement, the first defendant had also filed a draft scheme.
3.2 The trial Court however, dismissed I.A.418 of 2011, and both the defendants promptly approached this Court in CRP PD (MD) No.2472 of 2011. Vide order dated 19.01.2012, this revision came to be allowed pursuant to which both the additional written statement and the draft scheme circulated were taken on record by the trial Court. In the additional written __________ https://www.mhc.tn.gov.in/judis Page 6 of 30 S.A.(MD) No.735 of 2015 statement, the 1st defendant had challenged the title of the plaintiff to 'A' Schedule property and challenged the very maintainability of the suit, yet filed a draft scheme as an alternate option to be used by the Court, if the Court finds that a scheme indeed is required to be framed.
4. The dispute went to trial and before the trial Court, the plaintiff examined certain K.Kamaraj as PW1 and the defendants examined certain Murugesan as DW1. While the plaintiff had produced Ext.A1 to Ext.A47, of which Ext.A4 is the draft scheme, the defendants had produced Ext.B1 to Ext.B4. On appreciating the evidence before it, the trial Court chose to frame a scheme decree itself, as it appeared to have felt that there is no need to pass a preliminary decree for framing a scheme.
5. The decree of the trial court was challenged by the defendants in A.S. No. 54 of 2012 before Sub Court, Sivakasi. Before the first appellate Court, the defendants had taken up a plea that the temple in question is a public temple and that leave under Section 92 CPC ought to have been obtained and the plaintiff should have laid the suit before the District Court. This was accepted by the first appellate Court and it chose to dismiss the suit __________ https://www.mhc.tn.gov.in/judis Page 7 of 30 S.A.(MD) No.735 of 2015 accordingly. This is now in challenge in this appeal. This appeal is admitted for considering the following substantial questions of law:
(i) Whether the first appellate court was in error in holding that the suit 'A' schedule property constituted a public religious charity?
(ii) Was not the first appellate Court in error in holding that the trial court did not have inherent jurisdiction in entertaining the jurisdiction? and
(iii) Having submitted a draft scheme themselves, were not the defendants barred from challenging the first decree of the trial Court?"
6. The learned counsel for the appellant/plaintiff submitted as below:
a) The plaintiff has come with a straight forward case that both the plaintiff and the 1st defendant are jointly entitled to the management of the affairs of the temple in question and that the 1 st defendant showed tendencies and temptations to act unilaterally without taking the plaintiff into confidence. This indeed has necessitated the institution of the suit.
b) So far as the defendants are concerned, they had come out with __________ https://www.mhc.tn.gov.in/judis Page 8 of 30 S.A.(MD) No.735 of 2015 alternate and inconsistent pleas. In their principal written statement, they would admit that both sides have been managing the affairs of the temple, whereas in the additional written statement, they changed the gears and challenged the plaintiff's title to stake a claim for managing the temple in question. However, during trial, when faced with a situation to elect their stands, the defendants opted to go in favour of framing a scheme, which could be seen from the affidavit of chief examination of DW1, which is amply fortified by his testimony in the cross examination. Indeed the trial Court has found that both sides share an attitude which may not benefit a smooth conduct of the affairs of the temple, and indeed as even indicated, the first defendant tried to assert supremacy over the plaintiff in managing the affairs of the temple. It is hence, the trial Court has opted to frame a scheme.
c) When the matter reached the first appellate Court, the first appellate Court invoked Section 92 CPC, whereas this has never been the defence taken by the defendants in any of their written statements before the trial Court.
d) Inasmuch as both the plaintiff and the defendants are members of registered society, the right of worship cannot spill beyond the __________ https://www.mhc.tn.gov.in/judis Page 9 of 30 S.A.(MD) No.735 of 2015 members of both the societies, and no member of the public will have a right of worship or participate in the management of the affairs of the temple as of right. This would imply that Sec. 92 CPC will have no application and it is wrongly dragged and invoked by the first appellate court. Though the first appellate court has chosen to dismiss the suit, it also recorded the statement that the defendants too admit that both the warring sides are entitled to right of worship and management of the temple.
Reliance was placed on the authorities of Chonachalam Pillai and others Vs Sankaranarayana Pillai (Died) and others [(1970) 1 MLJ 78]; Pushpa Devi Bhagar (Dead) through LR Vs Rajinder Singh and others [(2006) 5 SCC 566]; Rajasthan State Industrial Development and Investment Cor;poration and another Vs Diamond and Gem Development Corporation Ltd., and another [AIR 2013 SC 1241]; and N.S.Nanjudasamy and another Vs V.Nanjundasamy and others [(2014) 6 MLJ 709].
7. The learned counsel for the respondents/defendants made the following submissions:
a) The nature of the decree passed by the trial court is not a consented __________ https://www.mhc.tn.gov.in/judis Page 10 of 30 S.A.(MD) No.735 of 2015 decree for framing the scheme. Indeed, the defendants have always contested both in the written statement and also in the additional written statement, the right of the plaintiff to seek framing of a scheme by the court, but with a rider in their additional written statement that in the eventuality of the court deciding to frame a scheme, then it will be perilous for the defendants if they do not file a draft scheme. In other words, filing a draft scheme by the defendants was not a concession but only intended to meet a certain contingency.
b) At any rate, if ultimately the temple in question is a public temple, then Section 92 CPC steps in, which implies even if the defendants presumed to have given their consent for framing a scheme decree that will be of no real benefit, since the Munsiff court will not have inherent jurisdiction to frame a scheme. In other words, there cannot be any estoppel against law and merely because parties submit to jurisdiction there is no inherent jurisdiction to decide a dispute cannot confer jurisdiction on it.
c) Turning to the dispute as to whether the suit property is a public temple or not, the plaintiff, has asserted in his pleadings that the temple in the suit property is a denominational temple in clause 6 of its __________ https://www.mhc.tn.gov.in/judis Page 11 of 30 S.A.(MD) No.735 of 2015 draft scheme, where as the plaintiff has suggested that worshipping and performing special poojas are confined only to the two sects of the Nadar community now litigating, and nowhere it is said the public have a right of worship. Reading clause 11 of the draft scheme submitted by the plaintiff along with the description of the temple in the plaint it would only indicate that the public has every right of access the temple, which will immediately bring into operation of Section 92 CPC. Reliance was placed on the decision of the Hon'ble Supreme Court in T.V.Mahalinga Iyer vs. State of Madras and another [(1981) SCC 445].
d) The suit is laid by a society whose membership is not more than 17 individuals, whereas PW.1 in his cross examination [Page 368] admits that nearly anywhere between 1000 to 3000 persons from either side worship every year during their respective festivals. If this is the number of worshippers, then to restrict the right to frame the scheme only to the members of the plaintiff-society will be incompatible even within the plaintiff society, as it will create internal incongruency and contradictions within it. If thousands of persons flock to a temple necessarily the scope of enquiry must be broad based which the __________ https://www.mhc.tn.gov.in/judis Page 12 of 30 S.A.(MD) No.735 of 2015 plaintiff as a society cannot achieve. Necessarily, the suit may have to be considered as one under Section 92.
e) That the suit temple is a public temple can also be gathered from a close reading of clauses 5,7 and 8 of Ex.A3, the bylaw of the plaintiff society. A combined reading of these provisions would indicate that one of the objectives of the plaintiff is to provide donation to other similar temples, which implies that the income generated from the Malaiamman temple will not be utilised only to the suit property but also to the other temples as well. This implies when donations are diverted to other temples, it will necessarily bring in public angle to the present temple.
f) The plaintiff introduces the temple as a denominational temple. If it is a denominational temple, then it essentially concerns with the right of management as distinguished from right of entry which is a feature that defines a private temple. However, when right of entry and worship is not restricted or shown to be restricted to the members of either of the sect, necessarily the temple has to be considered as a public temple. The plaintiff laying emphasis in Exts.A15, 16, 17, 18 and 19, the judgment and decree in O.S. No.728 of 1915, A.S. No.15 __________ https://www.mhc.tn.gov.in/judis Page 13 of 30 S.A.(MD) No.735 of 2015 of 1919 and S.A. No.1797 of 1919 to project a point that in these proceedings it had been held that the temple belonged to Kottapakkam and Vetrignaniyar sects. However, a close reading of any of these judgments does not seem to have made any reference to any of the sects. At the end of the day, there were private litigations between two sets of litigants and it cannot be translated as one binding the defendants' sect as a whole.
g) If the plaintiff contend that it is a denominational temple or where they have to challenge the character of the temple it has to be done only under Section 63 of the HR&CE Act.
8. In response Mr.A.V.Arun, learned counsel for the plaintiffs/appellants made the following submissions:
a) In A.S. No.15 of 1919, the first appellate court had declared that the temple is a common temple which was later affirmed by this court in S.A. No.1797 of 1919 in which the defendnants had admitted this fact in their written statement in the present suit. So far as the argument that only 15 members constitute the membership of the plaintiff-
society is concerned they only constituted the Managing Committee. __________ https://www.mhc.tn.gov.in/judis Page 14 of 30 S.A.(MD) No.735 of 2015
b) Defendants have challenged the very maintainability of the suit in their written statement but they later chose to file a draft scheme before the trial court, which the trial court did not accept. The defendants would now approach this court in C.R.P.(PD)(MD) No.2472 of 2011 challenging the said order of the trial court and this court has allowed the CRP and granted leave to the defendants to file its additional written statement and also the draft scheme. Now the defendants have taken two inconsistent propositions: (a) that contending that the suit is not maintainable; and (b) to frame a scheme as per the draft scheme they have presented. However during trial the defendants have chosen to fall back on framing a scheme and opted not to press their case on maintainability of the suit. This DW1 makes clear even in his chief examination.
Discussion & Decision
9. What is not in dispute is that the suit property comprises of a temple of Malaiamman, tree said to be behind the temple, which itself is being worshipped by one of the two sects of Nadar community who now litigate before this court. The effect of this litigation has been that since the __________ https://www.mhc.tn.gov.in/judis Page 15 of 30 S.A.(MD) No.735 of 2015 institution of the suit both sides take utmost care to resist the efforts of the other to do even maintenance any work in the suit property. Both worship, but would not let 'Kumbahbhishekam' for the temple. The Goddess may have turned indifferent to what it may consider as a profitless litigation over a pointless issue, easily resolvable if the parties had shown an intent to talk to each other. But that did not happen.
10.1 When both sides are at loggerheads on the issue, it would be ideal that a scheme is framed. This would imply that the issue cannot be whether a scheme should be framed, but can it be by the court? The objections raised by the defendants/respondents are:
a) That during festival thousands of devotees throng the temple, and it is admitted by P.W.1 and D.W.1 and hence it is a public temple. And since it is a public temple, leave of the Court under Sec.92 CPC should have been obtained by the plaintiff for instituting the the present suit.
And, only District Court has jurisdiction over the matter, and not a court subordinate to the District Court.
b) If however, the plaintiff considers it as a denominational temple, then the plaintiff ought to have invoked Sec.63 of the H.R. & C.E. Act. __________ https://www.mhc.tn.gov.in/judis Page 16 of 30 S.A.(MD) No.735 of 2015
c) And, finally to the locus standi of the plaintiff. It is a Society with 15 members, and they do not have locus standi to represent the entire sect of Vetri Gnaniyar.
10.2 The stands of the plaintiff chiefly has been that along with the written statement, the defendants had filed a draft scheme which implied they too had consented to frame scheme, and hence even the first appeal cannot be maintained, and that the defendants are estopped from contending to the contra.
11. Is the suit property, a temple plus other allied constructions constitute a public temple? Here, the following facts are significant:
a) In the plaint, the plaintiff alleges a narrative on the origin of the temple. It narrates that a young girl from Vetri Gnanaiyar sect, a victim of child marriage had lost her husband who hailed from the Kottapakkam sect even before she attained puberty, and had committed Sati in 1872, and how miraculously the flames did not harm the red saree that she was wearing then etc., and thereafter how she came to be worshipped both by Vetri Gnaniyar sect as well as by the __________ https://www.mhc.tn.gov.in/judis Page 17 of 30 S.A.(MD) No.735 of 2015 Kottapakkam sect and how a temple came to be established for her in 1875 which is came to be known by the name 'Therkku Malaiamman temple' or South Malaiamman temple, as there exists another Malaiamman temple to the north of the this temple belonging to some other sect. To back it, the plaintiff has produced Ext.A4 which provides the history of the temple, which it must be stated is a publication by the Vetri Gnaniyar sect. Not one in this narration was denied neither in the written statement nor in the additional written statement of the defendant. In other words, the Kottapakkam sect did not choose to deny the origin of the faith associated with the temple.
In other words, the plaintiff has projected the suit temple only as the common temple of two specific sects of Nadar community – the Vetri Gnaniyar and Kottapakkam, and not as a public temple, where anyone other than those who belong to any of the aforesaid two sects has no right of worship, and to back it the plaintiff has also produced Ext.A5 joint patta issued in the name of both the sects, and Ext.A6 Chitta issued by Deputy Tahsildar. But can it be reasonably be concluded that the temple belonged exclusively to the two sects of Nadar community now on litigation? Here following facts are relevant:
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a) The plaintiff has relied on an earliest of the litigations in O.S.728 of 1915, a suit laid by two plaintiff against three defendants for declaration of title and possession. The copy of the pleadings or judgement of the trial court in that suit is not made available.
However, a copy of the decree in the suit is produced by the plaintiff and is marked Ext.A15. Ext.A15 describes the suit property involved in that suit as a plot of land measuring 52 cents in S.No: 51 of Sivakasi village. It does not describe any temple or other constructions. The suit property in the present suit is described as the one measuring 50 cents in S.No:674/2 correlated to T.S.No:105, and details the Malaiamman temple and other constructions. Now, is the suit property in O.S.728 of 1915 is the same as the one involved in this suit? The probability is that they should be the same. This could be gathered from the following facts:
➢ Challenging Ext.A15 decree, the defendants in O.S.728 of 1915 preferred A.S.15/1919. The judgement therein is marked as Ext.A15. In paragraph 8 of the judgement, the first appellate court records that in the suit property lies the Malai temple and __________ https://www.mhc.tn.gov.in/judis Page 19 of 30 S.A.(MD) No.735 of 2015 nandavanam.
➢ After about seventy years since the disposal of S.A.1797 of 1919, O.S.4 of 1988 came to be instituted before the District Munsiff Court, Sattur. This is laid for partition by 19 plaintiffs from Vetri Gnyaniyar Sect against 22 defendants from Kottapakkam sect. The defendants 19 and 21 in that suit respectively are the defendants 1 and 2 in the present suit. The subject matter of the suit as could be gathered from Ext.A 21 decree shows that it is a site measuring 50 cents in Sy.No 674/2, bounded on all the four sides by compound wall, plus Malaiamman temple and temple mantapam etc. The northern boundary of the suit property is shown as North Malaiamman temple belonging to Idamarai sect of Nadar community. The learned Munsiff had held that temple is an impartible property and denied the relief of partition.
➢ Now comes O.S.86 of 2006 which the plaintiff-society has laid against the defendants for bare injunction to restrain the defendants from putting up any construction in the suit property. This suit was decreed. Ext. A29, the judgement in that suit __________ https://www.mhc.tn.gov.in/judis Page 20 of 30 S.A.(MD) No.735 of 2015 narrates that in the written statement that the suit property is common to both.
➢ What is significant in the context of the present suit is that, the Kottapakkam sect, which was the defendants in O.S.4 of 1988 had admitted to the historical background of the temple, and this is known from the narration of the allegations of the written statement in that suit from Ext.A20 judgement. And even in the present suit, the Kottapakkam sect has not chosen to deny the same or alter its stands. Indeed it admits O.S.728 of 1915 and its culmination in S.A.1797 of 1919 vide Ext.A18 judgement. ➢ Two facts could now be ascertained with more than reasonable certainty. One, there is no doubt about the identity of the temple; and the second, that both Vetri Gnaniyar sect and Kottapakkam sect have joint right to the temple and its affairs.
b) To the above can be added the third aspect. That no scheme has been framed for managing the affairs of the temple either by the Court, or by both the sects among themselves. And, there is the fourth aspect.
Both sides apparently have not been cordial in managing the affairs of the temple, and very obviously the circumstance is ideally set for __________ https://www.mhc.tn.gov.in/judis Page 21 of 30 S.A.(MD) No.735 of 2015 framing a scheme for the administration of the temple involving members from both the sect.
12. But the defendants are half hearted in finding a solution to what this court may tempted to believe as a century old dispute over a small temple. If has filed its draft scheme, which indicated that somewhere it acknowledges the necessity for framing the scheme, but simultaneously backtracks it when it contend that the suit is not maintainable since the temple is a public temple and leave of the trial court under Sec.92 CPC should have been obtained. Not in any one of the earlier rounds of litigations to which the reference had already been made, the Kottapakkam sect had raised a dispute as to the character of the temple – whether it is a public temple or a private temple? But why is this raised now? The Kottapakkam cites the testimony of P.W.1 where he has deposed that during festival in the temple, thousands throng the temple. And the interpretation of the defendants is that because thousands of devotees from general public visit the temple in question, it must be construed as a public temple, and invokes the judicially evolved presumption that in Tamilnadu any temple should be presumed to be a public temple. Let this be analysed:
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a) In his affidavit of chief examination, P.W.1 makes a statement (in paragraph 4) that for the stay of the devotees who visit the temple during festival in the Tamil month 'Maasi' (between mid February to mid March) 'pandal' would be erected.
b) In his cross examination, P.W.1 testifies that both the sect would conduct festival in the temple at different point of time, that only the dhayadhis and relatives would participate in the temple festival in Maasi, and that for the festivals so celebrated about 3,000 from the respective sects would participate for the respective festivals that the two sects conduct.
c) D.W.1 (from Kottapakkam sect) has testified in his cross examination that temple management would provide food to the devotees, and that during non-festival season, about 50 persons from both the sects would worship in the temple daily. He further states that if a dinning hall could be constructed for the benefit of the members of both the sects, and other devotees it would be convenient for all.
What could be gathered from the above evidence is that (a) neither side make a statement that members of the public would be entitled to worship in the temple as of right. In other words it is not even the case of the defendants __________ https://www.mhc.tn.gov.in/judis Page 23 of 30 S.A.(MD) No.735 of 2015 that the public has a vested right to worship in the temple; (b) secondly, even if anyone other than those from the sects is allowed to worship in the temple, that does not ipso facto convert a private temple into a public temple. The law is too well settled that no Hindu will ever prevent another Hindu from worshipping even in a private temple, and accordingly merely because anyone gets a licence to visit a private temple and offer worship, that does not ipso facto imply that a worshipper will have a vested right to worship in the temple, as of right. It is a licence to visit the temple and offer worship and the same shall not be confused with right to worship.
13. If the pleadings of the defendants in the present case is juxtaposed with the stands it has taken in O.S.4 of 1988, it is evident that they concede to the fact that the suit-temple is the common temple only to Vetri Gnyaniyar and Kottapakkam sects, and no other. And, the undisputed historical origin of the temple supports this view. This Court therefore, has least hesitation to hold that the suit temple is not a public religious institution to attract the application of Sec.92 CPC. The plea is terribly misconceived.
14. That leaves two other issues: whether the suit for framing the scheme __________ https://www.mhc.tn.gov.in/judis Page 24 of 30 S.A.(MD) No.735 of 2015 could be laid before the District Munsiff court; and (b) Whether the plaintiff has locus standi to institute the suit.
15. Turning to the inherent jurisdiction of the District Court to frame a scheme, inasmuch as the suit-temple is not a public temple, but only a private temple belonging to both the sects of Nadar Community who now litigate, a court subordinate to the District Court can entertain a suit for framing scheme. As stated earlier, in cases of private temples belonging to large body of fluctuating members a scheme for proper and effective administration of the temple can be made, since it involves a civil right, and hence a civil dispute which a civil court is competent to take cognizance of under Sec.9 CPC. Even though Sec.92 CPC does not apply to such situations, principles laid down therein can guide the court in framing the scheme.
16. Turning to locus standi of the plaintiff to represent Vetri Gnyaniyar Sect is concerned, there is some merit in what the defendants contend. A right to worship in the temple must be available to all the members of both the sect. It cannot depend on the membership in their respective societies on either side. So far as the societies that litigate now, it can only represent those who __________ https://www.mhc.tn.gov.in/judis Page 25 of 30 S.A.(MD) No.735 of 2015 are actually members of both the societies, but does not and cannot represent the interests of the non-members of the society from both the sects. Having stated thus, the suit cannot be dismissed since the members of the plaintiff and the defendants societies are also entitled to worship in the temple and have the right to participate in the management of the temple.
17. Ideally the suit should have been instituted as a suit under Order I Rule 8 suit, with few individuals from both the plaintiff sect and the defendants sect representing the interest of the members of both the sect. Here, it is difficult to conceive that a society can represent the interest of its non-members in a litigation.
18.1 Dismissing the suit is an easy option, but it will keep the feud between the two sects alive, and so also the cause of action for framing an issue, since as long as a scheme is framed for the administration of the temple, the cause of action will be recurring. Therefore, if dismissed, another day, another court may have to consider the issue all over again. Already four suits have been laid in the last one century between the two sects over the same property. But the legal system cannot afford one more suit. Parties may not __________ https://www.mhc.tn.gov.in/judis Page 26 of 30 S.A.(MD) No.735 of 2015 value the Courts time, but should not the Court at least respect its time? 18.2 It is therefore, only appropriate the matter is remanded back to the first appellate court to enable that both the members of the Vetri Gnaniyar sect and Kottapakkam sect participate for framing the scheme. After all, any defect in framing of the suit for procedural non-compliance of Order I Rule 8 CPC is a curable defect.
19. To conclude this appeal is allowed and the decree of the Subordinate Court in A.S.No.54 of 2012 is set aside and the suit is remanded back to the first appellate court. The first appellate court shall now:
a) Allow any member of the Vetri Gnyaniyar Sect to join as a plaintiff and to take out an application under Order I Rule 8 CPC. Indeed, the suit must be converted into a representative suit for both the sides.
b) Once it is done, the Court shall frame a scheme for the administration of the suit temple. Any party who is likely to get impleaded to represent others in their respective sect will also be entitled to offer their suggestions through draft scheme.
c) Even the parties who now litigate are entitled to present their modified __________ https://www.mhc.tn.gov.in/judis Page 27 of 30 S.A.(MD) No.735 of 2015 drafts now.
d) Once the formalities are complied, the first appellate court shall frame the scheme.
e) It is made clear, the first appellate court shall re-visit any of the issues which have already been decided by this court.
f) Parties are required to appear before the first appellate court on
20.01.2025. The entire exercise shall be completed within a period of six moths (excluding the summer recess for the court during May, June, 2025) from the date of the appearance of parties, or from the date on which the records of this case is received by the first appellate court.
g) No costs.
Consequently the connected Miscellaneous Petitions are closed.
18.12.2024 Index : Yes/ No Speaking order / Non-speaking order Neutral Citation : Yes / no Asr / ds __________ https://www.mhc.tn.gov.in/judis Page 28 of 30 S.A.(MD) No.735 of 2015 To:
1.The Sub Judge Sivakasi.
2.The District Munsif Virudhunagar.
3.The Section Officer VR Section Madurai Bench of Madras High Court Madurai.
__________ https://www.mhc.tn.gov.in/judis Page 29 of 30 S.A.(MD) No.735 of 2015 N.SESHASAYEE.J., ds Pre-delivery Judgment in S.A.(MD) No.735 of 2015 18.12.2024 __________ https://www.mhc.tn.gov.in/judis Page 30 of 30