Madras High Court
Hindu Religious And Charitable vs Ramasamy on 23 December, 2016
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.12.2016
CORAM
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
S.A.(MD)No.468 of 2006
&
C.M.P.(MD)No.10644 of 2016
Hindu Religious and Charitable
Endowments Department,
Through its Joint Commissioner,
Sivagangai. .. Appellant/1st Respondent/
1st Defendant
Vs.
1.Ramasamy, S/o.Srinivasan
2.Nedunchezhian, S/o.Nachiappan
3.Nachiappan, S/o.Srinivasan
4.Narayanan, S/o.Ramasamy
5.Lakshmanan, S/o.Velu Ambalam .. Respondents 1 to 5/
Respondents 2 to 6/
Defendants 2 to 6
6.Arlumigu Subramaniya Samy Temple,
Represented by through its Trustee,
M.Ramasamy,
S/o.Muthuraman Chettiar .. 6th Respondent/Appellant/
Plaintiff
Prayer:- Second Appeal is filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 29.08.2005, made in A.S.No.23 of 2005
on the file of the Subordinate Court, Devakottai, reversing the judgment and
decree, dated 29.12.2004, made in O.S.No.31 of 2004, on the file of the
Additional District Munsif Court, Karaikudi.
!For Appellant : Mr.C.Selvaraj
Special Government Pleader
^For R1, R4 & R5 : No Appearance
For R2 & R3 : Mr.P.Athimoolapandian
For R6 : Mr.AL.Kannan
:JUDGMENT
This Second Appeal has been filed against the judgment and decree dated 29.08.2005, made in A.S.No.23 of 2005 on the file of the Subordinate Court, Devakottai, reversing the judgment and decree, dated 29.12.2004, made in O.S.No.31 of 2004, on the file of the Additional District Munsif Court, Karaikudi.
2. The appellant is the 1st Defendant in O.S.No.31 of 2004, who succeeded before the Trial Court, but lost before the 1st Appellate Court. The 6th Respondent is the plaintiff. The Respondents 1 to 5 are the Defendants 2 to 6.
3. Facts of the case:
(i) The 6th Respondent filed the suit for declaration that Sri Arulmigu Subramaniasamy Thirukoil, Managiri, Karaikudi Taluk, Sivagangai District belongs to Nattukottai Chettiyar Community of Managiri and they have the right to administer the Temple and for permanent injunction restraining the appellant and the respondents 1 to 5 from interfering with their right to administering the Temple.
(ii) In the year 1880, Sri Arulmigu Subramaniasamy Thirukoil, Managiri, was established in the land belonging to RM.K.RM. family by S.V.N. family in a thatched shed for being worshiped by @efuj;jhh;. khdfphp fpuhkk;@/ Originally, it was called as @ntyha[jk; nfhtpy;@ and Poojas are conducted through @gz;lhuk;@ and salary paid to them from the amounts collected from @efuj;jhh;. khdfphp fpuhkk;@/ The patta is in the name of @efuj;jhh;. khdfphp@ and they are paying Tax. In the year 1982, idol of @Rg;gpukzparhkp@ was established and became @KUfd;@ Temple, some of the @efuj;jhh;@ established other idols, like @tpehafh;. KUfd;. ts;sp. bja;thid.
tp!;tehjd; tprhyhl;rp. rz;onf!;tuh;. ituth;. kapy;. and @etf;fpuf';fs;@ @gypgPlk;@ were established. Trustees are elected every year by turn from the different families of @khdfphp efuj;jhh;@ and present trustee was elected on 9.6.2001. In a portion of temple land, a shed was put up and it was let out to Ration shop on a monthly rent of Rs.125/- and account is maintained. The salary to @mh;r;rfh;@ and other staff were paid from and out of the amounts from families of @efuj;jhh;. khdfphp fpuhkk;@. No @mh;r;rid@ tickets are issued. No amounts are received from general public and the general public have no right to enter the temple and worship. They can enter the temple only with the specific permission from @efuj;jhh;@. While so, the appellant and the respondents 1 to 5 interfered with the management of the temple. The 6th Respondent challenged the order dated 01.03.2001 bearing Na.Ka.No.4003/2000-A8 in W.P.No.4807 of 2001 and obtained an interim order and filed the suit for the relief stated above. Originally, the suit was filed before the Subordinate Court, Devakottai, in O.S.No.131 of 2001 and it was transferred to the Additional District Munsif Court, Karaikudi, due to pecuniary jurisdiction.
(iii) The appellant filed Written Statement and stated that in the Temple, idol, @thfdk;@ etc., cannot be installed by private parties. The public of @khdfphp@ Village would have contributed. The appellant received complaint to the effect that the 6th Respondent has collected money from general public and paid salary to the staff and did not maintain the Account properly. The contention of the 6th Respondent that it is not a Hindu Temple is not correct in view of the fact that idols and @thfdk;@ are in the Temple. Festivals are being conducted by the Temple. The appellant department is established for the benefit of the Temples and general public and therefore, the 6th Respondent cannot contend that the appellant should not interfere with the management of the Temple. The 6th Respondent is not entitled to the relief sought for and prayed for dismissal of the suit.
(iv) The Respondents 1 to 5 filed written statement and contended that they also contributed amounts for construction of the Temple and they also have a right to be in management of the Temple. They are managing @_ mUs;kpF mjsehafp mk;kd;@ Temple at @jsf;fht{h;@. The Nagarathar of Managiri Village filed O.S.No.55 of 1951 on the file of Subordinate Court, Devakottai, claiming their right in the said Temple. The Respondents 1 to 5 succeeded in the suit. In the Temple, all the people belonging to community of the Respondents 1 to 5 and other community people are worshipping without hindrance and the "Nagarathar" as a Trustee are spending money received from the general public as offerings. The 6th Respondent has no right to prevent the Respondents 1 to 5 from entering Temple and prayed for dismissal of the suit.
(v) Based on the pleadings, the Trial Court framed 8 issues and subsequently, as per the provisions of Order 14 Rule 5 C.P.C., issues 3 and 6 were deleted.
(vi) Before the Trial Court, the 6th Respondent, the then Trustee Ramaraj was examined as PW1 and marked 10 documents as Exs.A1 to A10. On behalf of the Appellant and the Respondents 1 to 5, one Natarajan was examined as DW1 and the 5th Respondent examined himself as DW2. No document was marked on behalf of the appellant and the Respondents 1 to 5.
(vii) The Trial Court considering the pleadings, oral and documentary evidence held that PW1 failed to prove that he is the then Trustee of the 6th Respondent and has not produced the documentary evidence to substantiate their case and also not produced the account book. The Trial Court further held that no cause of action has arisen for the suit as the 6th Respondent did not produce the order dated 1.3.2001 alleged to have been passed by the appellant and for the above reason, dismissed the suit.
(viii) Against the Judgment and decree dated 29.12.2004, the 6th Respondent filed A.S.No.23 of 2005, before the Subordinate Court, Devakottai.
(ix) The learned first appellate Judge framed necessary points for consideration. After considering the pleadings, oral and documentary evidence, judgment of the Trial Court and the arguments of the learned counsel for the parties, allowed the appeal holding that the 6th Respondent has proved that PW1 was the then Trustee and considering the Exhibits marked as Exs.A1, A2, A3 and A8 to A10 and the Judgments of this Court marked as Exs.A4 to A7 held that the 6th Respondent has substantiated his case and allowed the appeal and setting aside the judgment and decree of Trial Court.
4. Against the said Judgment and Decree dated 29.8.2005, the appellant has filed the present Second Appeal.
5. This Court ordered notice of motion on 23.06.2006. No substantial question of law was framed in view of the fact that the second appeal was not admitted. In the memorandum of grounds of appeal, the appellant has raised the following substantial questions of law :-
1. Whether the subject suit is maintainable, since in the light of Section 63(a) and (b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act 22 of 1959, it is the Joint Commissioner, who has the initial jurisdiction to determine, if the suit Temple is a public religious institution or not?
2. Whether the lower appellate Court was justified in inferring, in favour of the plaintiff, with regard to the Character of the suit Temple on Exs.A1, A2 and A4 to A9?
3. Whether the judgment of the lower appellate Court is vitiated for having failed to give due evidential significance to the statement of PW1?
4. Is the lower appellate Court correct, in shifting the burden on the defendant, to prove that the disputed Temple does not belong to the plaintiff?
5. Was the lower appellate Court justified in holding that, in spite of, non-submission of any documents, crystallizing Nagarathar's exclusive right over the administration of the Temple?
6. Was the declaration given by the lower appellate Court correct, though the plaintiff is neither a Trustee nor a representative of Nagarathar Community?
7. Was the lower appellate Court justified in not holding that the 'Nagarathar Community' who is said to be administering the Temple is a Section of Hindu Community?
6. The learned counsel for appellant contended that the suit Temple is a public Temple and suit is not maintainable in view of Sections 63(a) and 108 of Hindu Religious and Charitable Endowments Act. The 1st Appellate Court failed to consider that the 6th Respondent has failed to prove their case. The 1st Appellate Court failed to consider the evidence of PW1 in proper perspective. The 1st Appellate Court failed to consider the fact that the 6th Respondent conducted "Sanippeyarchi Festival" in the Temple, which is a public festival. The learned 1st Appellate Judge erroneously held that the Temple was constructed by donors and declared the Temple as Private Temple without considering the fact that the 6th Respondent failed to produce any record relating to construction of the Temple. The learned 1st Appellate Judge failed to see that the 6th Respondent has not proved that PW1 was elected as a Trustee and failed to properly appreciate the fact that PW1 admitted that he is permanently residing at Tiruppur and in the circumstances, PW1 could not administer the day-to-day administration of the Temple. The learned 1st Appellate Judge erroneously accepted Exs.A1, A2 and A4 to A9. The learned 1st Appellate Judge did not consider the fact that the 6th Respondent admitted in O.S.No.55 of 1951 on the file of the Subordinate Court, Devakottai, that "kz;lfg;go" is being celebrated and amounts are collected through Hundials. The learned 1st Appellate Judge wrongly caused the burden on the appellant to prove that the 6th Respondent Temple is a public Temple.
7. The learned counsel for the respondents 2 and 3 contended that the sixth respondent is collecting money by Archanai Tickets and Hundials. The sixth respondent also receives contribution from General Public. They conduct Mandagapadi and festivals. It is not correct that Nagarathar Management alone are in Management of the Temple. Representatives of respondents 1 to 5 are also in the Management of the Temple. The General Public without any permission from Nagarathar enter the Temple and worship. The learned counsel further contended that the suit filed by the sixth respondent is not maintainable as per Section 108 of the Hindu Religious and Charitable Endowments Act.
8. Per contra, the learned counsel for the 6th Respondent submitted that the 6th Respondent by oral and documentary evidence proved that the 6th Respondent Temple was established by the funds contributed by "efuj;jhh;" of Managiri Village. The entire expenses including the salary of the staff is being paid from the amounts contributed by "Nagarathar", Managiri Village. No festival is celebrated. No amount is collected by Hundials and by sale of "Archanai" Ticket. No contribution or donation is received from general public. There is no immovable property belonging to the Temple. The general public have no right to enter and worship in the Temple. Only by specific permission, they are permitted to enter and worship in the Temple. The 6th Respondent Temple is not a Temple as defined in Section 6(20) of the Hindu Religious and Charitable Endowments Act. The appellant has alleged that complaint was received against the 6th Respondent that they are collecting money from the public, through Hundials and sale of Archanai Ticket, but not maintaining the account properly. The appellant did not produce the said complaint and marked the same and DW1 admitted that the officials of appellant have not inspected the Temple and verified whether there is any Hundial or not. Even though the appellant has stated that they have receipt issued by 6th Respondent for collection of money from the public, but no such receipt was produced at any point of time. The contention of the appellant that idols are installed in the Temple must be from the contribution from public and therefore, the Temple is a public Temple is not based on any evidence and this statement is made only an assumption. The appellant did not earlier raise the issue that suit is not maintainable and therefore, they cannot raise such issue in the Second Appeal. The Temple was established 120 years back and patta was issued in the name of idol and the 6th Respondent has obtained electricity connection in the name of the Temple. The 6th Respondent has constructed superstructure in a portion of the land belonging to the Temple and rented out to Ration shop and collected the rent of Rs.125/- per month and maintaining proper accounts. The suit Temple will not come under the purview of Section 6(20) of the Hindu Religious and Charitable Endowments Act. To substantiate the above submissions, the learned counsel for the 6th respondent relied on the following Judgments.
(I) 2000 (II) MLJ 161 [Sencottai Swami Mela Arasalwar Trust by Trustees and others Vs. State of Tamil Nadu by the District Collector, Tirunelveli and another] (II) 2001 (3) LW 777 [The Commissioner H.R. & C.E. (A) Department, Madras - 34 Vs. Sri Bhagavandhar and Sri Dhayanandhar Matalayam] (III) 1997 (1) LW 681 : 1996 (2) LW 681 [T.S.Palanisamy and 7 others Vs. The Commissioner, Hindu Religious and Charitable Endowment Board and another] (IV) 2006 (1) LW 459 [C.Nallasivan Pillai Vs. The Commissioner, Hindu Religious and Charitable Endowments Administration Department, Madras and others] (V) 1975 (2) MLJ 310 [Thanuma Iayaperumal Mudaliar and others Vs. The Commissioner, The Hindu Religious and Charitable Endowments (Administration) Department Madras and others] (VI) 1953 (2) MLJ 688 [The Madras Hindu Religious Endowments Board Vs. V.N.Deivanai Ammal by Power of Attorney Agent T.V.Mahalinga Iyer] (VII) 1983 (2) MLJ 274 [The Commissioner for the Hindu Religious and Charitable Endowments, Madras ? 34 and another Vs. Swamikeela Arasalwar Dharmam in Veera Kerala Varampuram Gramam (Street), Shencottah Village, Shencottah Taluk, Tirunelveli District, through its Trustees and others)
9. For maintainability of the suit, the learned counsel for the 6th Respondent relied on the Judgments reported in 2003 (3) MLJ 1 [Aaralvaimozhi Sri Nainar Kulasekara Vinayagar Vellala Samudaya Temple, Vadakoor Vs. Palavesam Pillai and others] and 2001 (3) MLJ 287 [The Commissioner, H.R. & C.E. Administration Department, Madras Vs. V.Perumal Mudaliar and others] and submitted that a suit to declare that suit Temple is a particular denomination i.e., sect of people, is maintainable. The learned counsel for the 6th Respondent submitted that the 1st Appellate Court has considered Exs.A2 and A8 to A10 and evidence of DW1 in proper perspective and allowed the appeal.
10. The learned Counsel for the 6th Respondent relied on the Judgment reported in 2011 (3) MLJ 127 [Kuppuswamy Vs. Commissioner, H.R. & C.E. Admn. Department, Chennai and another] and submitted that burden is on the Hindu Religious and Charitable Endowment Department to prove that the Temple is a public Temple and not a private temple. There is no error in the Judgment of the 1st Appellate Court and prayed for dismissal of the Second Appeal.
11. I have carefully perused the materials available on record and considered the Judgment and Decree of the Courts below and the arguments advanced by the learned counsel appearing for the parties.
12. The learned counsel for the appellant contended that suit is not maintainable and is barred in view of provision of Hindu Religious and Charitable Endowments Act and relied on the Judgments reported in 2003 (1) CTC 484 [Inspector/Fit Person H.R. & C.E. Department, Arulmighu Sundaresa Gnaniar Koil Cholakadai Street, Dharapuram] and 2011 (3) MLJ 563 [P.K.Vasudevan Pillai and another Vs. Manikandan Nair and others].
13. The contention of the learned counsel for the appellant that suit is not maintainable cannot be entertained at this stage and the said contention has no force. The judgments reported in 2003 (3) MLJ 1 and 2001 (3) MLJ 287 [cited supra] are squarely applicable to the facts of the case, wherein it has been held that suit to declare a Temple belonging to a particular sect of people i.e., denomination of Temple is maintainable. Therefore, the two judgments relied on by learned counsel for appellant do not advance the case of the appellant. The 6th Respondent has contented that suit Temple was constructed in the year 1880 by Nagarathar community of Managiri Village from and out of the funds contributed by them. Originally, idol of Velayutham was established and subsequently, idol of Lord Muruga was installed. Again, the idols of Lord Vinayagar and other deities were installed. The case of the 6th Respondent is from the beginning Nagarathars are in possession and Management of the Temple and the expenses were met by contributions of Nagarathars only. Their specific case is there is no Hundial collection and sale of Archanai Ticket. They have not received any contribution from the General public and no festival is celebrated. Only, the Nagarathar of Managiri Village have right to worship in the Temple. The general public cannot enter the Temple and worship as a matter of right. Every year, a Trustee is elected from among the families of Nagarathar by rotation and elected Trustee will be in-charge of the administration of Temple for 1 year. The key of the Temple will be with the said Trustee. The General Public can enter the Temple and worship only after obtaining permission from the management of Nagarathar. The 6th Respondent examined Ramasamy the then Trustee and produced Ex.A3 dated 9.6.2001 the resolution register. From Exs.A3 and A4 to A7, it is seen that PW1 and one K.R.Arumugam Chettiar were representing the 6th Respondent in the Writ Petition as well as proceeding before the Joint Commissioner Hindu Religious and Charitable Endowments Department, when appellant appointed a fit person and tried to interfere with the management of the 6th Respondent. It is not in dispute that the appellant, by the proceeding dated 1.3.2001 appointed a fit person and the same has been challenged by the 6th Respondent in this Court and subsequently also filed suit. Therefore, the conclusion of Trial Court that the 6th Respondent failed to prove cause of action for filing the suit is erroneous. The 6th Respondent also produced Ex.A1 dated 28.3.1990 issued by the Special Tahsildar, Natham Land Tax Scheme, Karaikudi in Form No.III and Ex.A2 Patta with regard to the suit Temple. They have also produced Ex.A8 and A9, receipts issued by Electricity Board, which are in the name of Temple. PW1 has deposed that no amount is received apart from the contribution by Nagarathar of Managiri Village and there is no Hundial and Archanai Ticket and festivals are not conducted. The appellant and respondents 1 to 5 did not let in any oral and documentary evidence to disprove the evidence of PW1 and the documents Exs.A1 to A10 marked by the 6th Respondent. The Respondents 1 to 5 contended that the 6th Respondent filed O.S.No.55 of 1951 claiming right over the Sri Arulmigu Athalanayagi Ammal, Talakkavur, managed by the respondents 1 to 5, wherein according to Respondents 1 to 5, the 6th Respondent admitted that Mandagapadi is being performed and collection is made through Hundial in the 6th Respondent Temple. No document was produced to substantiate this contention. The appellant contended that the department appointed fit person only in view of the complaint received against the 6th Respondent with regard to collection of money from general public and Hundial. No such complaint was produced and marked in the proceedings. DW1 the witness of appellant has admitted that they have not verified whether there is any Hundial or not. They have also not produced receipts alleged to have been issued by the 6th Respondent for collection of money though they claim they are in possession of such receipt. The appellant and respondents 1 to 5 have not proved that festivals are being conducted and general public enter and worship in the Temple as a matter of right and public also contribute money to the 6th Respondent Temple. The appellant has failed to prove their contention that idols in the Temple were installed only from the contribution from public. There is nothing on record to disprove the evidence of PW1 and Exs.A1 to A10. The learned 1st Appellate Judge has considered all the materials on record and has given valid and cogent reasons for setting aside the judgment and decree of Trial Court. There is no error of law or fact in the said Judgment. Therefore, the substantial questions of law as raised by the appellant in the grounds of appeal, are answered accordingly.
14. In the result, the Second Appeal is dismissed, confirming the judgment and decree dated 29.08.2005, made in A.S.No.23 of 2005 and setting aside the judgment and decree, dated 29.12.2004, made in O.S.No.31 of 2004. No costs.
To
1.The Subordinate Judge, Karaikudi.
2.The Additional District Munsif, Karaikudi.
3.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai..