Madras High Court
The Commissioner vs Sri Hanumar Thirukoil on 25 November, 2016
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.11.2016
Reserved on: 18.11.2016
Delivered on: 25.11.2016
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
Second Appeal (MD) No.423 of 2011
1.The Commissioner,
Hindu Religious and Charitable
Endowments (Administration) Department,
Madras ? 34, having office at Cathedral Road,
Nungambakkam, Madras ? 34.
2.The Assistant Commissioner,
Hindu Religious and Charitable
Endowments (Administration) Department,
having office at Ayekulam Road,
Kumbakonam. ... Defendants 1 & 2/
Respondents 1 and 2/ Appellants
-Vs-.
1.Sri Hanumar Thirukoil, Aduthurai,
by its present Managing Trustee
for himself and as representing
all the Padmasaliya Community, Aduthurai,
having office at No.4, Krishnan Koil Street, Aduthurai.
: Plaintiff / Appellant / 1st Respondent
2.R.Selvaraj : 3rd Defendant/3rd Respondent/
2nd Respondent
Prayer: Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 24.10.2009 of the Additional Sub Court,
Kumbakonam, in A.S.No.193 of 2005, reversing the well considered judgment and
decree dated 17.01.2002 made in O.S.No.437 of 1995, on the file of the
Principal District Munsif, Valangaiman at Kumbakonam.
!For Appellants : Mr.VR.Shanmuganathan
Special Government Pleader
for Mr.S.Sathish Kumar
Additional Government Pleader
^For Respondent 1 : Mr.K.Govindarajan
For Respondent 2 : No appearance
:JUDGMENT
The defendants 1 and 2 in the suit in O.S.No.437 of 1995 on the file of the Principal District Munsif Court, Valangaiman at Kumbakonam are the appellants in this Second Appeal. The first respondent herein, as plaintiff, filed the suit in O.S.No.437 of 1995 for a declaration that Sri Hanumar Thirukovil, Aduthurai, belonged to a religious denomination, Padmasaliya community, Aduthurai, that the temple is a denominational institution protected under Article 26 of the Constitution of India and Section 107 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and that the temple is entitled to be managed and administered only by the said Padmasaliya denominational community and for a consequential injunction restraining the appellants herein from interfering with the administration and management of the plaintiff temple by way of appointment of trustees, etc.
2.The case of the plaintiff / first respondent as stated in the plaint are as follows:
2.1.Sri Hanumar Thirukoil Aduthurai is situated very near Sri Navaneetha Krishna Swamy Temple Nandavanam and both the above temples belong absolutely to Padmasaliya Community, a religious denomination at Aduthurai.
The denominational character of Sri Navaneethakrishnaswamy temple was upheld by the High Court in A.S.No.50 of 1972 and the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, Thanjavur, upheld the denominational character of the said temple in O.A.No.9 of 1979.
2.2.The plaintiff temple was also built by the above religious denomination namely Padmasaliya community, Aduthurai and the temple was previously a small one and on 04.06.1945, the temple was fully established and on 15.09.1986 Kumbabishegam was performed for the plaintiff temple by the Padmasaliya community, Aduthurai.
2.3.For well over 50 years people belonging to Padmasaliya Community, Aduthurai, have been carrying on the administration and management. Festivals and daily pooja in the plaintiff temple is done by the community and the community people formed a specific denomination and they alone are entitled to manage and administer the plaintiff temple. The community has appointed one R.Rajendran as the Managing Trustee of the temple by passing a resolution. Only the community people used to contribute for festivals in the temple and hence, is protected under Article 26(D) of the constitution and Section 107 of the Hindu Religious and Charitable Endowments Act, 1959.
2.4.Neither the first defendant nor the second defendant has got any right of management in the administration of the plaintiff temple and they have no right to appoint any third party as a trustee for the temple. The second defendant without knowing the denominational character of the plaintiff temple has appointed the third defendant as a trustee of the plaintiff temple. In order to protect the denominational character of the temple and also to protect the right of the Padmasaliya community, Aduthurai, regarding the administration and management of the temple, the suit has been filed.
3.The suit was contested by the defendants 1 and 2, the appellants herein denying the denominational character of the temple and the exclusive right of the Padmasalia community to manage and to administer the suit temple.
4.It is the specific case of the appellants that O.A.No.9 of 1979 and A.S.No.50 of 1972 have nothing to do with the suit temple. According to the appellants, in O.A.No.9 of 1979, the Deputy Commissioner has given a declaration under Section 63(b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, that the residents of Padmasaliya Community of Aduthurai village, are hereditary trustee of Sri Krishnaswami Temple and that the same was also upheld in A.S.No.50 of 1972 by this Court. Since declaration is only for another temple known as Arulmighu Krishnaswami Temple and the suit temple is not the subject matter of the proceedings, it was contended by the appellants that the suit temple is a public temple and not a denominational temple. It was also contended by the appellants that the people other than the community of Padmasaliya were appointed as trustees and the residents of Aduthurai other than the plaintiff community were entrusted and involved physically and financially for the development of the temple. Since the temple in question is a public temple, the appellants contended that the department has got right to appoint trustees. They also raised an issue that the present suit is hit by the doctrine of election as the plaintiff community had not chosen to get a declaration for the Hanumar temple in the previous proceedings.
5.The trial Court after considering the evidence extensively, found as follows:
?MfBt thjp jpUf;Bfhtpy; gj;krhypah; rKfj;jpduhy; 1945k; Mz;L epWtg;gl;lJ vd;w bghUz;ik thjp jug;gpy; jpUg;jpfukhf epUgpf;fg;gltpy;iy vd;whYk;, mj;jpUf;Bfhtpy; gj;krhypah; rKfj;jpduhy; eph;thfk; bra;ag;gl;L tUfpwbjd;gJk;, mth;fs;jhd; mj;jpUf;BfhtpYf;F FlKGf;F bra;J itj;Js;sdh; vd;gJk;. mj;jpUf;Bfhtpypd; jpde;BjhWk; ?g{ir bra;J tUtjw;F gl;lhr;rhhpah; xUtiu epakdk; bra;J Cjpak; bfhLj;J tUfpd;wdh; vd;gJk;, mj;jpUf;BfhtpYf;F gad;gLj;Jfpd;w kpd;rhuj;jpw;Fhpa kpd;fl;lzj;ij gj;krhypah; rKfj;jpdh;jhd; brYj;jp tUfpd;wdh; vd;gJk; bjspthfpwJ. vdBt, thjp jpUf;Bfhtpypd; eph;thfk; gj;krhypah; rKfj;jpdhplk; jhd; cs;sJ vd;gJ thjp jug;gpy; jpUg;jpfukhf epUgpf;fg;gl;Ls;sJ bjspthfpwJ.?
6.However, on the question whether the plaintiff community can be recognised as a religious denomination observed as follows:
?vdBt, thjp jpUf;Bfhtpy; MLJiwapy; cs;s gj;krhypah; rKfj;jpduhy; guhkhpf;fg;gl;L eph;thfk; bra;ag;gl;L te;jBghjpYk;, MLJiwapy; cs;s gj;krhypah; rKf mikg;g[ rkak; rhh;e;j jdp ndkhf ny;yhj epiyapy;, mth;fsJ eph;thfj;jpy; cs;s thjp jpUf;BfhtpYk; rkak; rhh;e;j jdp nd Bfhtpyhf nUf;f KoahJ vd;gJ bjspthfpwJ. MfBt MLJiwapy; cs;s gj;krhypah; rKfj;jpdh; rkak; rhh;e;j jdp nd rKfk; ny;iy vd;Wk;, mjd; fhuzkhf thjp jpUf;Bfhtpy; rkak; rhh;e;j jdp nd Bfhtpyhf ny;yiy vd;Wk; ne;j tHf;bfGtpdhtpw;F tpilaspf;fg;gLfpwJ.?
7.It can be seen that the trial Court has understood the real meaning of religious denomination after referring to some of the binding precedents. Since the evidence in this case is lacking to prove that the members of the community have a common religious tenets peculiar to themselves than those which are common to the entire Hindu community, the trial Court rightly declined to grant the relief of declaration. Since the relief of declaration was declined, the trial Court also held that the plaintiff is not entitled to the consequential relief of permanent injunction.
8.As against the dismissal of the suit by the trial Court in O.S.No.437 of 1995 by judgment and decree dated 17.01.2002, the plaintiff preferred an appeal in A.S.No.193 of 2005 on the file of the Additional Sub Court, Kumbakonam. Despite the trial Court has relied upon the leading judgments to decide the vital issue as to the status of the plaintiff temple, the lower appellate Court did not go into the religious aspect of the matter. The lower appellate Court considered the oral evidence of P.W.1 and P.W.2 and found that the plaintiff temple was constructed and maintained by the Padmasaliya community. Finally, the lower appellate Court observed as follows:
?Though the defendants examined DW1, there are no documents and there is nothing to show that the other public have constructed in promoting this temple. There is no other individual deposed as against the contention of the plaintiff. Further as argued by the plaintiff counsel, accepting contributions from any other persons will not amount to participation in the administration of the temple as the temple is solely administered by the plaintiff's community alone. The trial court has failed to take into consideration of Ex.A3. It has further failed to note that the admission is the best evidence. This Court is further able to find that there is absolutely no evidence on the side of the defendants to show that the plaintiff temple lacks characters of denominational nature. It is also argued by the plaintiff that the temple do not have kodimaram etc., to show that it is having characters of the public temple. This Court is able to find that it is also an additional factor in support of the plaintiff's claim that the suit temple shall be a denominational one.?
9.Thus, it can be seen that the appellate Court has accepted the case of the plaintiff that the temple is a denominational temple only on the ground that the temple was constructed by a particular community and that the temple was under the management and administration of Padmasalia community. The contention of the plaintiff that the plaintiff temple do not have Kodimaram etc., to show that it is having the character of the public temple was accepted and the lower appellate Court upheld the claim of plaintiff that the plaintiff temple is a religious denomination. The lower appellate Court reversed the judgment and decree of the trial Court and decreed the suit as prayed for. The Commissioner of Hindu Religious and Charitable Endowments Department, and the Assistant Commissioner of Hindu Religious and Charitable Endowments Department, Kumbakonam, who are the defendants 1 and 2 in the suit, have filed the present appeal as against the judgment and decree of the lower appellate Court in A.S.No.193 of 2005.
10.At the time of admitting the Second Appeal, the following substantial questions of law were framed by this Court:
(i) Whether the Lower Appellate Court had not erred in law in not applying the ratio laid down in 100 Law Weekly page 240 and decide the issue by applying the norms prescribed for qualifying as a denomination community?
(ii) Whether the Lower Appellate Court had not erred in law in misreading Ex.A.36, the inscription available in the temple which was put up only on 15.06.1986 and held that suit temple was constructed by the Padmasaliya community in the year 1945?
(iii) Whether the Lower Appellate Court had not erred in law in failing to take note of the categorical admission made by P.W.1 and P.W.2 to the effect that the Padmasaliya Community has no common faith, spiritual organisation, particular religious teacher or Guru, preach prescribed by the said Guru which are essential factors to decide the denomination community?
(iv) Whether the Lower Appellate Court had not erred in law in shifting the burden of proof on the part of the defendants, when the plaintiff had not discharged his initial burden?
(v) Whether the lower appellate Court had not erred in law in construing Ex.A3 as admission on the part of the defendants with regard to the claim of the plaintiff?
(vi) Whether the Lower Appellate Court is right in decreeing the suit to declare the plaintiff temple as denominational one when the plaintiff has failed to satisfy the conditions i.e., common faith, spiritual organisation, distinctive name and belief in a particular religious teacher or guru to get status of denomination?
11.Mr.V.R.Shanmuganathan, learned Special Government Pleader, appearing for the appellants relied upon the judgment of this Court in the case of Assistant Commissioner, Hindu Religious and Charitable Endowments Department, Salem, etc., v. Nattamai K.S.Ellappa, etc., reported in 100 L.W. 240 wherein this Court in the context of deciding the status of the Senguntha Mudaliars of Tharamangalam, whether it is a religious denomination expressed its concern about the misunderstanding of the subordinate judiciary and their inability to distinguish the legal character and status of a private temple, a denominational temple and a public temple. In paragraph 22 of the said judgment, it has been stated as follows:
?I am obliged to point out that very often the real question which arises for consideration is not understood or considered by the subordinate judiciary or the persons who conduct the cases before the subordinate Courts. In most of the cases, it is taken for granted that if a temple is owned and administered by a community the latter could be treated as a religious denomination automatically and the only question with reference to which evidence is let in by the parties is whether the community established and maintained the temple concerned. And if that question is answered in the affirmative, the Court comes to the conclusion that such temple is a denominational temple. It must also be noted that a denominational temple is confused with a private temple and the tests which are laid down for deciding the character of the temple as private or public' are applied while determining the denominational character thereof. The fact that a temple would become a denominational:
temple only if it is established and maintained by a religious denomination or any section thereof is forgotten in many of the cases. That has led to some wrong decisions which create an impression in the minds of litigants that once the ownership and administration of a temple are proved to be resting with a particular community or a section thereof, that would be sufficient to declare. it to be a denominational temple. In fact, the trial Court has in Para 26 of its judgment framed the following question which proves that the real: controversy has not been understood by it :"
12.The learned counsel for the appellant also relied upon the following judgments:
(i) In the Assistant Commissioner, H.R. & C.E.(Admin) Department, Tirunelveli v. Swaminatha Iyer and others reported in 1998-II-MLJ 344.
(ii) In Appusamy v. A.V.Sundararajan and others reported in 1997-I-MLJ 218.
13.The judgment of the appellate Court in the present case indicates that the position which was taken note of by this Court about 25 years back continues till today despite authoritative pronouncement of the Hon'ble Supreme Court and this Court on several occasions. The lower appellate Court in this case has failed to apply its mind to understand the true interpretation of the word ?religious denomination? as it has been understood in the context of recognising the institution as a religious denomination entitled to the protection under Article 26 of the Constitution of India.
14.It is an accepted principle that ?religious denomination? under Article 26 of the Constitution of India must take their colour from the word ?religious? and that the expression ?religious denomination? must satisfy the three conditions namely:-
?(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- being, that is, a common faith;
(2) Common organisation; and (3) Designation by a distinctive name.?
15.The judicial interpretation of the term ?religious denomination? as given by the Hon'ble Supreme Court in the case of the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt reported in AIR 1954 Supreme Court 282 has been followed by our High Court in several judgments. The Constitutional Bench of the Hon'ble Supreme Court in the case of S.P.Mittal v. Union of India reported in AIR 1983 SC 1 has followed the judgment of the Hon'ble Supreme Court reported in AIR 1954 SC 282. It is only the Constitutional Bench which has laid tests to recognise a temple or an institution as a religious denomination. It has been held by the learned Single Judge of this Court in State of Tamil Nadu v. Vilampatti Nadar and others reported in 1991 (1) L.W. 382 as follows:
?In order to hold that the particular community constitutes a religious denomination within the meaning of Article 26 of the Constitution, it must be proved that the said community has a system of beliefs or doctrines which the members of the community regard as conducive to their spiritual well-being. It is essential that the members of that community must have common religious tenets peculiar to themselves other than those which are common to the entire Hindu Community.?
16.In the judgment of Justice M.Srinivasan in the case of the Assistant Commissioner, Hindu Religious and Charitable Endowments Department, Salem, etc., v. Nattamai K.S.Ellappa, etc., reported in 100 L.W. 240 it has been held as follows:
?As seen from the decision of the Supreme Court, the words 'religious denomination' must take their colour from the word 'Religion'. It is, therefore, clear that the common faith of the community should be based on religion. It is essential that they should have common religious tenets. The basic cord which connects them should be religion and not anything else. If the aforesaid tests are applied in the present case, it will be seen that Senguntha Mudaliar community of Tharamangalam cannot claim to be a religious denomination. There is absolutely no evidence on record to prove that the members of the community have common religious tenets peculiar to themselves other than those which are common to the entire Hindu community. The only witness examined on the side of the plaintiffs is the first plaintiff who speaks repeatedly about the temple being owned by the community and administered by the two sections called Chinna Katchi and Periya Katchi.?
17.In the case on hand, the trial Court has relied upon the evidence of P.W.1, who would categorically admit as follows:
?gj;krhypah; rKfj;jpw;F vd;W jdpahf kjFUkhh;fs; ahUk; ny;iy.?
?vA;fsJ rKfj;jpdh; ve;j Kiwapy; tHpghL bra;a Btz;Lbkd;w Kiwfis cUthf;fp itf;ftpy;iy?
?vy;yh ne;Jf;fisa[k;Bghy ehA;fSk; irt itzt flt[s;fisa[k; fpuhk Bjtijfisa[k; ehA;fs; tHpghL bra;fpBwhk;.?
?gj;krhypah; rKfj;jpdh; vd;d Kiwapy; thH Btz;Lk;, vg;go tHpghL bra;a Btz;Lk;, ve;j flt[is tHpghL bra;a Btz;Lbkd;Wk;, mjw;fhd g{i$ Kiwfis Fwpg;gpl;Lf; Twf;Toa g[dpj g[j;jfA;fs; vJt[k; ny;iy.?
?vA;sJ kjj;jpw;bfd;W jdpahf kjFUkhh;fs; ahUk; fpilahJ. rk;gdhr;rhh;ahh; vd;w FU jpUf;BfhtpY]hpy; cs;shh;. vA;fs; rKfj;jpy; rpyBgUf;F kjFUthf cs;shh;. Mdhy; vA;fSf;F mth; kjFUthf ny;iy. BghJthf itzt Bfhtpy;fspy; eilbgWfpd;w g{irfisg; Bghyj;jhd; jhth BfhtpypYk; g{irfs; eilbgWfpd;wd. etePjfpU&;zd; BfhtpypYk; mt;thWjhd; g{ir eilbgw;W tUfpwJ. kw;w ne;Jf;fisg; Bghy ehA;fSk; kw;w flt[s;fisa[k; Fk;gpLBthk;. Rptd;Bfhtpy; fpuhk Bjtij Mfpa Bfhtpy;fSf;F ehA;fs; brd;W tHpghL bra;tJz;L. vA;fs; rKfj;jpw;F vd;W ve;j jdpg;gl;l rka E]y;fSk; fpilahJ. jdpg;gl;l tHpghl;L Kiwa[k; vA;fSf;F fpilahJ.?
18.From the evidence, there is no difficulty that the Padmasaliya community has no particular religious teacher or Guru and that this community is not known as followers of any spiritual leader. The Padmasaliya community is not a spiritual organisation and they do not have any religious faith peculiar to them to differentiate them from the religious faith of any other Hindu.
19.From the reading of judgments above referred to, it is seen that in order to recognise a section of people as a religious denomination, it should be established that the collection of individuals under a particular name is recognised as a religious sect or body having a common faith and organisation and designated by a distinctive name. There must be a distinct common faith and the community as such must be a spiritual organisation. Only if a community has a distinct common faith or belief in a particular religious teaching or philosophy it can claim the status of religious denomination. Any organisation of individuals based on caste or community or residence who may have acceptance to the teachings of different spiritual leaders or different forms of worship cannot claim themselves to be a religious denomination. Only if a temple is established and administered by any such religious denomination the same can be recognised as a denominational temple.
20.Since the plaintiff temple has not proved their case to get a declaration as prayed for and the appellate Court has reversed the findings of the lower Court and granted a decree for declaration as prayed for by the plaintiff without considering various judgments above referred to, the substantial questions of law raised by the appellants are answered in their favour and the second appeal is allowed. As a result, the judgment and decree of the lower appellate Court in A.S.No.193 of 2005 by the Additional Sub Judge of Kumbakonam, is set aside and the suit in O.S.No.437 of 1995 on the file of the Principal District Munsif Court, Valangaiman at Kumbakonam, is dismissed. However, there is no order as to costs.
21.The learned counsel for the first respondent, placing reliance on the findings of the lower appellate Court made a submission that the plaintiff has proved that the plaintiff temple is under the plaintiff's exclusive administration and that their right to administer the temple claiming the office of trusteeship as hereditary should be upheld. It is well settled that it is the exclusive jurisdiction of the authorities under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, to decide as to the character of temple whether it is a religious institution or not and whether the office of trusteeship attached to a temple is hereditary or not. In such circumstances, it is not necessary to reserve any right in the present proceedings where the denominational character of the temple alone has been decided against the plaintiff. It is open to the plaintiff to establish any other right, if it is permissible in law..