Madras High Court
Divakaran Nair vs Http://Www.Judis.Nic.In on 10 October, 2018
Author: S.Baskaran
Bench: S.Baskaran
1
BEFORE THE MADRUAI BENCH OF MADRAS HIGH COURT
Judgment Reserved on : 02.11.2017
Judgment Pronounced on : 10.10.2018
CORAM:
THE HONOURABLE MR. JUSTICE S.BASKARAN
S.A.(md)No.897 of 2007
and
M.P.No.1 of 2007
1.Divakaran Nair
2.G.Harikumar
3.Sugumaran Nair
4.Gopalan Thambi
5.Vickraman Nair
6.Vijayakumaran Thambi
7.Gopalan Nair
8.Chandran
9.V.Sukumaran Nair
10.Vijayakumaran Nair
11.S.Haridass
12.V.Sukumaran Nair
13.Gopalakrishnan Nair
14.Ravindran Nair
15.P.Madhavan Kutti
16.Nagappan Nair
17.Ajithkumar
18.Suresh Kumar
19.Ajith kumar
20.D.Sahadevan
21.Karthikeyan Nair
22.Vickraman Nair
23.N.S.Biju ... Appellants
Vs.
http://www.judis.nic.in
2
Hindu Religious and Charitable Endowment
(Administration)
Rep. by the Assistant Commissioner,
Hindu Religious and Charitable Endowment Office
Vadiveeswaram, Nagercoil,
Kanniyakumari District. ... Respondent
This second appeal has been filed under Section 100 of CPC,
against the judgment and decree dated 21.08.2006 passed by the
learned 2nd Additional Sub Judge, Nagercoil, in A.S.No.61 of 2006,
confirming the Judgment and decree dated 17.03.2006 passed by the
learned Principal District Munsif Court, Nagercoil, in O.S.No.383 of
1984.
For Appellants : Mr. Chellapandian, S.C.
for Mr.V.M.Balamohan Thambi
For Respondents : Mr.E.Kumar
Additional Government Pleader
JUDGMENT
This second appeal arises out of the judgment and decree dated 21.08.2006 passed by the learned 2nd Additional Sub Judge, Nagercoil, in A.S.No.61 of 2006, confirming the Judgment and decree dated 17.03.2006 passed by the learned Principal District Munsif Court, Nagercoil, in O.S.No.383 of 1984.
http://www.judis.nic.in 3
2. Brief facts of the case is as follows:-
The suit temple was founded and established by rich Nair Tarawads of Paracode. The right of worship in the temple is limited to the members of the aforesaid Nair Tarawad, who treated Kandan Sastha as their family deity. Non Nairs are never permitted to worship in the temple or participate in the administration. The main Nair Tarawad founded temples were 'Konnavilakom', Kuunju Veedu Pattavilakom and Parayum Veedu. The plaintiffs are the dependants of the founders of the temple. From the year 1920 to 1960 one Krishna Pillai was in management of the temple. In the beginning, the temple had no wall or roof, in fact no building or structure. There was only a Serpant grove (kavu) consisting of cluster of old trees and thereby creepers occupied an area about 3 cents of land. The main Deity Kandan Sastha was also not of the familiar form of idols which are found in other Sastha Temples were idols are found in sitting posture. In the suit temple, Sastha carved in a granite stone is in standing posture under the head of a serpant. On either side of Sastha, other stone idols of elephant, Ganapathi etc., are also installed on a stone pedestal. These were installed underneath a cluster of trees and creepers forming as “Kavu” and these idols face towards on western side. Further more, there were idols of Boothathan Nagar, Sivalingam http://www.judis.nic.in 4 etc., which faces towards on east. The ancestors of the plaintiffs founded the temple and installed the above deities and worshipped there giving importance to the main deity “Kandan Sastha.” The temple is situated in the extent of 3 cents in the middle of land having total area of 1 acre 94 cents. There was also Madappalli room for cooking rice or Nivedyam and Pattu Chavadi. In the year, 1930 Krishna Pillai removed the roof and reconstructed the roof with tiles with his own funds and donation from family members. In the same year, one Raman Pillai and Narayana Pillai of Mela Veedu demolished and constructed a new Mandapam just to the eastern side of the temple with tiled roof to be used as rest room by the worshippers. In the year, 1975 concrete office building was constructed with the contribution of Nair families to the south of the said Mandapam. Further, parapet wall of about 2 feet height on four sides of the Sastha Temple was constructed and electrification also was done in the office building. These works were carried out with the contribution of members of the Tarawad. From the ancient times, there was daily pooja, special poojas and 'Chirappu” for continuous period of 41 days i.e., from 1st Karthikai till 11th Margazhi carried out by the rich Nair Tarawad members of four families in Paracode. During their family partition some of the Tarawad, members made specific provision in the http://www.judis.nic.in 5 partition deeds for the conduct of “Chirappu” in the temple for specified number of days. During 1957 to 1958, the plaintiffs planted 100 coconut trees on the northern and eastern side of the temple garden. Out of 1 acre 94 cents, 40 cents was converted into paddy field. From the year, 1972, Management of the temple is done by a committee, having a President, Secretary, Treasurer and few members elected from members of said Nair families. While so, during 1982, the defendant appointed the 9th plaintiff as Trustee of the temple and tried to interfere with the administration of the temple and in the year 1984 one Sankara Narayana Pillai was appointed as Trustee. The defendant has no right to appoint the Trustee and interfere with the administration of the temple. Hence, the plaintiffs came forward with the suit for declaration and injunction.
3.According to the defendant, as per the written statement, the temple is an old temple and no records are available to show that the temple was constructed and worshipped by the plaintiffs' family. There are no gold or silver ornaments for the deities in the temple. Only pooja utensils worth Rs.30/- is available in the temple. All the people around the temple belongs to the non Nairs community. All the people belonging to the Hindu Community are worshipping the deities http://www.judis.nic.in 6 in the temple and conducting poojas daily in the temple. The temple and its properties are under the management of one V.Sankarapillai from 1961 onwards. Krishna Pillai was not in management of the temple from 1920 to 1960. There are 25 Nagerstone idols and the Vinayagar stone idol are presented in the open space. There is no distinguishing feature for this temple. The plaintiffs and their ancestors have no connection to the formation or installation of these deities. There is no Vettimurichan Sastha idol available in the temple. The poojas are being performed by one Vaidhiyanatha Iyer on a monthly payment of ½ kottah of paddy. The collections are made by the appointed trustees from the public and the chirappu is conducted. The existence of coconut plants and wet land around the temple will not convert a public temple into a private temple of the plaintiffs. On 08.07.1965, one Sankaran Pillai was appointed as Trustee by the Assistant Commissioner, HR & CE Suchindram. Thereafter, Thiru. Gopalan Thambi and N.Raveendran Nair were appointed as Trustees by the Assistant Commissioner by his order dated 28.04.1971. As per the Special Act 24/1976, the Village Officer of Thiruvithancode was appointed by the Assistant Commissioner as fit person on 04.06.1976. After the expiry of the period fit person one Prabaharan Nair and Goplan Thambi were appointed as Trustee. On 17.09.1981, http://www.judis.nic.in 7 Prabaharan Nair resigned his trusteeship. Gopalan Thambi (9th plaintiff) being Government servant is not to continue as a trustee for the temple was to handed over the charge to Inspector, HR & CE, Thuckalay, who has been appointed as fit person to the temple on 24.02.1984. Instead of handing over charge, the present suit has been filed by the plaintiffs alleging false and frivolous allegations.
4.After contest, the trial Court dismissed the suit. Aggrieved upon that the plaintiffs preferred the first appeal before the lower appellate Court and after contest, the lower appellate Court also dismissed the appeal by confirming the decree and judgment of the trial Court. Now, the unsuccessful plaintiffs have came forward with the present second appeal.
5.At the time of admission, the following substantial question of law were raised before this Court in the second appeal for consideration.
1) Whether the Courts below is right in holding that the temple is a public merely on the basis of the appointment of trustee by the respondent on the basis of Ex.B1 in the absence of any notification as contemplated under Section 3 of the Tamil Nadu Hindu Religious and http://www.judis.nic.in 8 Charitable Endowment Act 22 of 1959.
2) Whether the Courts below is right in not adverting to the very admission of D.W.1 and D.W.2 and the report of the Advocate Commissioner under Exs.C1 to C5 which do not establishes the characteristic factors that the temple is a public temple?
6.The learned counsel appearing for the appellants/plaintiffs would submit that the defendant never issued notification as contemplated under Section 3 of the Tamil Nadu Hindu Religious and Charitable Endowment Act 1959. Further more, the suit temple has no characteristics of public temple and the same is also admitted by D.Ws.1 and 2. The report of the Advocate Commissioner also reveals that the suit temple was not having any characteristics of public temple. However, the trial Court as well as the first appellate Court failed to consider the plea of the plaintiffs positively only on the ground that the defendant has already appointed trustees. The said conclusion is against the provisions contemplated under Section 3 of the Tamil Nadu Hindu Religious and Charitable Endowment Act,1959 as well as the law laid down by the Hon'ble Supreme Court. Hence, the plaintiffs contend that the findings of the Courts below is unsustainable and seeks to entertain the appeal.
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7.Per contra, the learned counsel appearing for the respondent/ defendant would submit that after proper notification under Section 3 of HR & CE Act and after proper enquiry conducted by the officials of the HR & CE Department, notifications were issued and some of the family members were appointed to act as Trustees and now the plaintiffs have come forward with the suit with false allegations. As such, there was no merit in the appeal and the same has to be dismissed.
8.I have heard the rival contentions and perused the materials available on record.
9.On perusal of the records available, it is clear that the existence of temple is not in dispute. The only dispute raised by the plaintiffs is that proper notification was not issued under Section 3 Tamil Nadu Hindu Religious and Charitable Endowment Act and suo- moto the defendants have appointed Trustees without considering the characteristics of the temple, as if, the suit temple was having characteristics of public temple. On the side of the plaintiffs, the learned counsel has cited number of authorities in support of his arguments. The scope of the suit is very limited. According to the http://www.judis.nic.in 10 plaintiffs, even though the Trustees were appointed by the HR & CE Department, it will not cure the non following of Section 3 of HR & CE Act. On the side of the defendant, it is contended that only after proper enquiry notifications were issued and from 1961 onwards the Trustees were appointed and till the filing of the suit in the year,1984, the plaintiffs never questioned the rights of the defendant to appoint the Trustees.
10.Before going into the merits of the case, we have to analyse the following provisions which are relevant to decide the issue.
“Section 3. Power to extent Act to Charitable Endowments:-
(1) Where the Government have reason to believe that any Hindu or Jain public charitable endowment is being mismanaged, they may direct the Commissioner to inquire, or to cause an inquiry to be made by any officer authorised by him in this behalf, into the affairs of such charitable endowment and to report to them whether, in the interests of the administration of such charitable endowment, it is necessary to extend thereto all or any of the provisions of this Act and of any rules made thereunder.” http://www.judis.nic.in 11 As per Section 3(1) of HR & CE Act, if Government has any reason to believe about mismanagement, it can order for enquiry under Section 3(2), then on necessary enquiry report, the Government can consider that report and if satisfied that there was mismanagement, then government can extend the HR & CE Act to that Endowment under Section 3(3). Further as per proviso class of Section 3(3) before issuing such notification, the defendants herein has to issue a notice of their intention to do so, specifying the reasons for the action proposed to be taken by them and fixing a period which shall not be less than two months from the date of publication of the notice, for the persons interested in the endowment concerned to show cause against the issue of the notification and consider their objections, if any.
11.According to the plaintiffs, the suit temple was founded by rich Nayar of Paravacode but the actual date of commencement and date and other details of the endowment is not known to them. The rights of worship in the temple was limited to the members of the Nayar tarawads who treated Kanthan Sastha as their family deity. Gradually members of other Nayar families in Paravacode and its neighbour hood were also permitted to worship in the temple. To prove the same, the plaintiffs have produced Ex.A2 to Ex.A25. From http://www.judis.nic.in 12 the year 1920, the temple was under the management of Krishna Pillai. From 1972, the management of temple was done by a committee consisting members of Nair families. From the year 1984, the defendants tried to interfere the administration of the temple and issued letter dated 24.02.1984 and thereafter litigation started.
12. According to the defendant, they have proceeded against the plaintiffs temple on the basis of preliminary report dated 20.02.1965, i.e., Ex.B1 by the Inspector of HR & CE Department Thuckalay. They obtained assessment report dated 08.04.1965 and appointed trustees as per order dated 08.07.1965, marked as Ex.B2 and Ex.B3. The defendant have not denied the existence of temple. As per Ex.B1 report, the defendant found that Trustee Sankara Pillai has not maintained any accounts for the management of the temple. In Ex.B1 report mismanagement of temple by the trustee does not find place, but on the basis of Ex,B1, the defendant proceeded further and issued Ex.B2 to Ex.B9. Admittedly, Ex.B1 is the basic document to invoke Section 3 of HR & CE Act. As per Section 3(1), if any enquiry was ordered by the defendant department and Ex.B1 Report was filed on the basis of such enquiry, then the defendant ought to have invoked Section 3(2) and 3(3) of the Act. Then only after that http://www.judis.nic.in 13 considering the report Ex.B1 and after satisfying itself that suit temple is being mismanaged by plaintiffs and it is necessary to extend the provisions of the HR & CE Act to plaintiffs temple, the defendant have to issue notice to the plaintiff about their intention to do so, specifying the reasons for the action proposed to be taken by them and fix a period which shall not be less then two months from the date of publication of the said notice to received objection and if any objection was received after considering the same has to issue notification in the Gazette. Thus, as per the above said provision, the defendant ought to have issued show cause notice to the plaintiffs with regard to their intention of invoking of provision of HR & CE Act. It is therefore clear that in between Ex.B1 and Ex.B3, the defendants ought to have issued show cause notice to the plaintiffs and then they ought to have issued notification in the Gazette before issuing Ex.B3. On the side of the defendant any such show cause notice and Gazette notification is not produced before the Court. It clearly shows that the defendant miserably failed to comply with Section 3 of the HR & CE Act. Therefore, in such circumstances, whether the defendant can invoke chapter III of the HR & CE Act is the point for consideration in this second appeal.
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13. Both the Courts below have gone through the available documents of both parties and gave a concurrent finding that after appointment of trustee, the plaintiff cannot question the same. However, both the Courts below failed to consider whether Section 3 of the HR & CE Act was complied with or not. More over both the Courts below have failed to frame the issue whether Section 3 of HR & CE Act was complied with by defendant before appointing the trustee. Now, let us discuss about the implication of non compliance of Section 3 of the HR & CE Act on the basis of the citation referred to by the appellants side.
14.First of all, the learned counsel appearing for the appellants/plaintiffs relied on a ruling reported in 2003 (1) CTC 65 in THE COMMISSIONER, HIDU RELIGIOUS AND CHARTIBALE ENDOWMENTS BOARD, NUNGAMBAKKAM, MADRAS -34 AND ANOTHER Vs. T.S.PALANICHAMY AND SEVEN OTHERS, wherein the meaning of private temple and public temple is defined. In the said citation, it is held as follows:-
“The four tests are- (1) whether the user of the temple by members of the public is of right; (2) Whether the control and management vests either in a large body of persons or within http://www.judis.nic.in 15 the members of the public and the founder does not retain any control over the management; (3) Whether the dedication of the properties is made by the founder who retain the control and management and whether control and management of the temple is also retained by him; and (4) Whether the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by the members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.” In the above said citation, following Apex Court verdict was followed which is reported in AIR 1981 SC 798 in RADHAKANTA DEB Vs. THE COMMISSIONER OF HINDU RELIGIOUS ENDOWMENTS, ORISSA.
15.The next point raised by the plaintiff/appellant is with regard to denominational temple. For which, the learned counsel appearing for the appellants relied on a ruling reported in 1998-2-L- W-475 in THE ASST. COMMISSIONER, HIDU RELIGIOUS AND CHARTIBALE ENDOWMENTS (ADMN), DEPPT, NAGERCOIL. Vs. http://www.judis.nic.in 16 THE PARAKKAI ATHITHAVARMAN PERUMTHERU KEEZHATHERU, MUTHARAMMAN TEMPLE, PARAKKAI AND ELEVEN OTHERS, wherein it is held as follows:-
“13.It is settled law that a temple would become a denominational temple only if it is established and maintained by a religious denomination or any section thereof. If the members of a religious denomination claim that the religious institution in question has been established and maintained by them, their rights are governed by Art. 26 of the Constitution and the same are left untouched by the Tamil Nadu Hindu Religious and Charitable Endowments Act on account of Section 107 thereof.” The above said ruling also relied on the Hon'ble Supreme Court verdict, which is reported in AIR 1983 SC 1 in S.P.MITTAL Vs. UNION OF INDIA, wherein it is held as follows:-
“The words 'religious denomination' in Art.26 of the Constitution must take their colour from the word 'religion' and if this be so, the expression 'Religious denomination' must also satisfy three conditions”.
1.It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-
http://www.judis.nic.in 17 being, that is, a common faith;
2.Common organisation; and
3.Designation by a distinctive name”
16.With regard to characteristics of institutions, the learned counsel has relied upon the ruling reported in 1991 2 MLJ PAGE 582 in R.SHANMUGHA SUNDARAM Vs. THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS AND OTHERS, wherein it has been held as follows:-
“Characteristics of Institution must be decided – Unless it is decided department cannot assume jurisdiction.” It is further contended by the appellant that when there is no Gopuram, Kodimaram, Vimanam, Dwajas-Thambam, hundial or moorthies, it is held that the said temple is a private temple. In support of the same, the learned counsel appearing for the appellants/plaintiffs relied on the ruling reported in 1999 (1) MLJ PAGE 3 in THE COMMISSIONER, H.R. AND C.E., (ADMN.) DEPARTMENT, MADRAS. Vs. SRI ANDARVILLAI MUTHARAMMAN TEMPLE, ERANIEL AND ANOTHER, wherein it is held as follows:-
“No Gopuram, Kodimaram, Vimanam, http://www.judis.nic.in 18 Dwajas-Thambam, hundial, or moorthies – Moorthis – Local respondents refusing to give statements to authorities in this regard – Held, the temple is a private temple.”
17.It is also pointed out that if any members of the public had not participated or had no right of worship, it is only a private temple. In that regard, the learned counsel appearing for the appellants relied on the ruling reported in 2007 (2) MLJ 2015 in SRI KRISHNAVILAS BAJANAI MADAM, REP. BY ITS TRUSTEES, KUMBAKONAM Vs. COMMISSIONER, H.R. & C.E. DEPT., MADRAS AND OTHERS, wherein it has held as follows:-
“When there is no evidence that at any point of time, any member of the public had participated in the management or even had the right of worshipping or participating as a matter of right in any function, the plaintiff institution, established for the purpose of doing bajanais and for – doing poojas for some days, is to be considered as a private Trust only and not as public charitable institution.”
18.It is also contended by the learned counsel for the appellants/plaintiffs that the burden of proof lies upon the HR & CE Department to prove that the suit temple is a public temple. In support http://www.judis.nic.in 19 of said contention, the learned counsel appearing for the appellants relied on a ruling reported in 2011 -1 – LAW WEEKLY 351 in KUPPUSWAMY Vs. THE COMMISSIONER, H.R. & C.E. ADMN, DEPARTMENT, CHENNAI – 600 034 AND ANOTHER, wherein it is held as follows:-
“It is not in dispute that generally the burden of proof is on the plaintiff to prove the case. But, in the case of dispute with regard to the status of the temple, whether it is a public temple or a private temple, the burden is on the Hindu Religious and Charitable Endowment Department to prove that the temple is a public temple.”
19.Further, the learned counsel appearing for the appellants/plaintiffs submitted that mere appointment of Trustee by HR & CE Department alone is not sufficient to come to the conclusion that the suit temple is a public temple. In support of the same, the learned counsel relied on a ruling reported in 2005 (3) MLJ 518 in C.NALLASIVAN PILLAI Vs. THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS ADMINISTRATION DEPARTMENT, MADRAS AND OTHERS, wherein it is held as follows:-
http://www.judis.nic.in 20 “It is not correct to hold a temple as a public temple merely because the Government by a wrongful assumption of power appointed the trustees to the temple.” The above Division Bench Judgment has relied on the Apex Court verdict, which is reported in AIR 1976 SC 1059 in HINDU RELIGIOUS ENDOWMENTS AND OTHERS Vs. B.SAMITRA AND OTHERS, wherein it has held as follows:-
“28.There can, therefore, be no manner of doubt that the Assistant Endowments Commissioner has no jurisdiction to appoint a non-hereditary trustee of a religious institution under Section 27 of the Act without prior determination of the questions that the institution is a public one and has no hereditary trustees.”
20.As per the verdict of this Court, which is reported in 2011 (1) LAW WEEKLY 351(cited supra) it was held that the burden of proof shifted to the defendant and the department is to prove that the suit temple is a public temple. On the basis of the above said ruling, now, let us see the evidence of D.W.1 who has clearly and categorically admitted in his evidence that “1965 Kjypy; K:d;W ngiu http://www.judis.nic.in 21 ou!;oaha; epakdk; bra;njhk;/ me;j 3 ngUk; giuf;nfhl;ilr; nrh;e;j ehah;fshFk;/ giuf;nfhL vd;w ,lj;jpy; fpU!;zd; tf rKjhaj;jpdh; cs;shh;fsh vd bjhpahJ/ ehd; ,e;j xU tUlj;jpy; mf;nfhtpYf;F 2 Kiw nghndd;/ xU Kiw g[jd;fpHik nghndd;/ ,d;bdhUKiw vd;d fpHik vd;W brhy;y KoahJ. fhh;j;jpif 1Mk; jpajp Kjy; khh;fHp 11?Mk; jpajp tiu kz;ly g{i$ elg;gJz;L/ me;j rpwg;g[ nfhtpypd; brytpy; elj;Jfpwhh;fs;/ ou!;ofs; elj;Jthh;/ ehah;fis jtpu kw;wth;fs; rpwg;g[ elj;Jtij ehd; ghh;j;jjpy;iy/ bfhokuk; ,y;iy/ gpufhuk; fpilahJ/ fhzpf;ifg;bgl;o fpilahJ/ fkpl;oapy; ehah;fis jtpu ntW ahiua[k; bkk;guhf nghltpy;iy.”. D.W.2, who is Assistant Commissioner, HE & CE Department has not spoken anything about the temple or administration. Thus, the defendants themselves have not proved that the suit temple is a public temple. The Division Bench of this Court has elaborately considered relying upon the Apex Court verdict what are the factor is to be considered to conclude that the temple is a public temple or private temple. As per the ruling reported AIR 1970 SC 2025 in GOSWAMY SHRI MAHALAXMI VAHUJI Vs. RANNCHHODDAS KALIDAS, the Apex Court held that “in short, the origin of the temple, the manner in which its affairs were managed, the nature and the extent of the gifts received by it, rights exercised by devotees in regard to worship therein, the consciousness of the manager and consciousness of the http://www.judis.nic.in 22 devotees themselves as to the public character of the temple were factors that went to establish whether the temple was public or private.”
21.Thus, relying on the above said principles laid down by the Apex Court, to find out whether the suit temple is a public temple or private, this Court has to look into the manner in which the management is carried on, the way in which devotees exercised their right to worship and similar connected things followed in administration of the temple. These are the formulas to find out whether private or public. In the case on hand, as per the evidence of D.W.1 except Nair families no other worshippers are found in the temple. So, the evidence of D.W.1 itself will prove the case of the plaintiffs that it is having special character of the private temple is concerned. There are three basic principles to decide the special character viz., there must be collection of individuals, common organisation, designation by the distinguished name as stated supra. In this case, the Nair families themselves having common organisation with the participation of the Nair family alone. They themselves are designated with a separate name Tarawad family. It is thus clear that and the same is satisfy denomination. It is also pointed out that the http://www.judis.nic.in 23 defendant miserably failed to consider the characteristics of the suit temple as contemplated by the Apex Court. As per the ERANIEL MUTHARAMMAN TEMPLE case, the Division Bench of this Court held that the special character of public temple, and Gopuram, Kodimaram, Vimanam, Dwajas-Thambam. The said finding is certainly applicable to the facts of this case. In this case also as per the evidence of D.W.1 no special characteristics as stated above is available. Hence, the suit temple can be considered only as a private temple as per the above decision of this Court. Regarding participation of public, D.W.1 clearly and categorically admitted that in the administration committee except Nairs, nobody has became members so far. In such circumstances, it must be considered only as a private temple and not as a public temple.
22.The other defence put forth by the defendant is that from year 1961 onwards, trustees were appointed by the defendant and the plaintiffs themselves accepted the trustees and acted upon without disputing the same. As such after long passage of time, it is not proper for the plaintiffs to come before this Court and administration of the department. They cannot question the same. Refuting the same, on the side of the plaintiffs, it is submitted that mere http://www.judis.nic.in 24 appointment of trustee by the department alone is not sufficient to change the character of the temple and further only by way of wrongful exercise of authority, the trustees were appointed. Thus, the learned counsel for the plaintiff contended that and the same ground alone it cannot be held that the suit temple is a public temple. As per the Division Bench verdict of this Court in NALLASIVAM PILLAI as stated supra, before appointing trustee what are the facts to be found out is clarified by the Apex Court in AIR 1976 SC 1059 in SAMITHRA case. Prior determination of the question that the institution is a public one and it has no hereditary trustee. Without determining the same, the appointment of the trustees by the defendant is certainly invalid. In this case, the defendant has relied on 9 documents to prove their contention. Ex.B1 is the preliminary report dated 20.02.1965. The assessment report dated 08.04.1965, which is marked as Ex.B2. The order of appointment trustees dated 08.07.1965, which was marked as Ex.B3. Another appointment order with regard to President and committee is marked as Ex.B4 and subsequent proceedings in the year, 1976, 1978 and 1979 are marked as Ex.B5 to Ex.B8. However, in para 3 of the written statement, it is stated as follows:-
http://www.judis.nic.in 25 “The temple and its properties are under the management of V.Sankarapillai from 1961 onwards. Thiru Krishna Pillai was not in management of the temple from 1920 to 1960.” According to the written statement, even in the year,1961, the suit temple was managed by trustees, but they have produced documents from the year 1965 only. As per section 3 of the HR & CE Act, issuing of notification in the official Gazette with regard to the intention of the HR & CE Department extending the Act to the suit temple is mandatory. On the side of the defendant, they have not produced any peace of papers to show that they have complied with Section 3 of the HR & CE Act. Invoking of Section 3 of HR & CE Act is the mandatory provision and without complying the same mere appointment of trustees alone is not sufficient to hold that the suit temple is a public temple.
23.In such circumstances, both the Courts below have not considered these legal aspects and simply relied on the documents produced by the defendant and accepted the version of the defendant that as trustees are appointed, already it is a public temple but whether the appointment of trustees was done according to the http://www.judis.nic.in 26 Section 3 of the HR & CE Act was not considered. Therefore, in the light of the above said discussion, this Court comes to the conclusion that the question of law raised by the appellants is sustainable and both the question of law are answered in favour of the appellants/plaintiffs. For the reasons stated above, this Court concluded that the findings of both the Courts below are not sustainable and the same liable to be set aside. The point is answered accordingly.
24. In the result, the second appeal is allowed. The Judgment and Decree passed by the Courts below are hereby set aside and the suit in O.S.No.383 of 1984 on the file of the Principal District Munsif, Nagercoil is allowed and the same suit is decreed as prayed for.
Considering the circumstances of the case, there is no order as to costs. Consequently, connected M.P. is closed.
10.10.2018 rrg http://www.judis.nic.in 27 To
1.The II Additional Sub Court, Nagercoil.
2.The Principal District Munsif Court, Nagercoil.
http://www.judis.nic.in 28 S.BASKARAN,J., rrg/vs Judgment in S.A.(MD)No.897 of 2007 10.10.2018 http://www.judis.nic.in