Madras High Court
The Commissioner, H.R. And C.E. (Admn.) ... vs Sri Andarvillai Mutharamman Temple And ... on 22 June, 1998
Equivalent citations: (1999)1MLJ3
Author: T. Meena Kumari
Bench: T. Meena Kumari
JUDGMENT Mrs. T. Meena Kumari, J.
1. This appeal is preferred against the judgment and decree passed by the learning single Judge of this Court, in A.S. No. 280 of 1983, under Clause 15 of the Letters Patent, whereby the learned single Judge confirmed the judgment and decree dated 28.4.1981 passed in Original Suit No. 59 of 1980 by the learned Subordinate Judge, Padmanabhapuram, who held that the suit temple is a private temple belonging to Chekkala Samudayam and decree the suit, setting aside the order of the Commissioner, Hindu Religious and Charitable Endowments, Madras.
2. The brief facts, which are necessary to dispose of this appeal are as follows: The first respondent-first plaintiff is a temple in Eraniel Village of Kanyakumari District and the second respondent is the Secretary of the Eraniel Chekkala Samudayam, to whom the first respondent-temple belongs. The residents of the locality around the temple are chekkalas by caste and originally their avocation in life was oil crushing. Oil crushing like tapping of toddy was considered to be an ignoble profession in olden days. It was further averred that they were denied entry into temples on the ground of pollution and studiously kept out of the Hindu fold. Their case is that they are a collection of individuals classed together under the same name as 'Chekkalas' and these 'Chekkalas' are the descendants of well defined families, known as (1) Validapirai, (2) Siriapirai, (3) Cheramuthu, (4) Munichara, (5) Killivagai and (6) Nellari. They claimed that their common ancestor as 'Andar'. They have put up a small thatched shed and housed a deity, made-up of clay, to satisfy their spiritual needs and this was on account of the denial of their entry into the other temples. This temple had no sastric " origin and the rules and regulations laid down by the Agamas and Sastras, which are fitting objects of public religious worship, are not applicable to this temple. Chekkalas set-up a Udampadi of the year 1112 Malayalam Era and were managing the affairs of the temple and they are a collection of ascertained individuals in the special rights and privileges, closely connected with one another. Every one of the members was parties to the Udampadi, conveniently called the 'Samudayam', do not constitute a community or a section of the community, but are the descendants of the six families, who had settled and lived in Andarvillai and the surrounding lands in Eraniel. The Udampadi of the year 1112 Malayalam Era enjoins several conditions. There is a document of the year 1116 Malayalam era, so far as the Andarvillai Mutharamman Temple is concerned. The members of the family, who committed to their care, control and custody, started steps to apply the several provisions of the Act. It therefore became necessary for determination of the nature of the temple as a private temple, outside the purview of the Act XXII of 1959. Therefore, the members of the 'Samudayam' and the President of the 'Samudayam' filed O.A. No. 33 of 1973 before the Deputy Commissioner, Madurai, which was transferred to Tirunelveli and numbered as O.A. No. 12 of 1975. In spite of several documents filed by the petitioners, the Deputy Commissioner has held that the temple is a public temple. The appeal preferred by the petitioners to the Commissioner was also dismissed. Therefore, they filed Original Suit No. 59 of 1980 before the learned Subordinate Judge, Padmanabhapuram, for setting aside the order of the Commissioner, Hindu Religious and Charitable Endowments in A.P. No. 86 of 1976, dated 25.2.1980 and to declare that the suit temple is a private temple, belonging to Chekkala community.
3. The defendant-appellant filed a written statement contending that the origin, of the temple is not known and the second plaintiff in the suit and other members of his community have no relationship with the founder of the temple. The temple was constructed by the Hindus of the locality and all the Hindus, irrespective of caste and creed, have been worshipping in the said temple, without hindrance. The claim that Chekkalas at present residing in the locality are the descendants of six families, is also denied. It was further claimed that there is no truth in the assertion of the plaintiffs that the Andar has founded the temple and decided that the temple should be constructed in the same place, where the thatched house of Goddess was built and the clay image of the Deity be changed to stone image and installed for the purpose of their worship. The Udambadi was executed by appointing a well-known sculptor and artist for the construction of the stone image of Sri Mutharamman and the presiding deity and other idols were consecrated in the present temple. Properties have been acquired by the trustees from time to time from contributions among the members of the family. There is no property gifted by any stranger or endowed by any outsider. The poojas in the temple and the ceremonies are all made by the members themselves. There is no 'Gopuram' or 'vimanam'. There is no 'Dwajasthambam' or 'Kodimaram' which are the surest indications regarding the festivals in a temple. There is no hundial or kanikaipetti and it established the requisite moneys from their own hands in the annual kodai. The defendant-appellant further contended that there was no peculiar modes of worship or practices observed by the 'Chekkalas' in the plaint institution. Agamas and Sastras do not decree that the temples having no sastric original are not fit for public religious worship. The Hindus of the locality have been worshipping in the plaint temple for generations and have been treating the temple, as a public religious institution only. It was further alleged that the 1112 Udampadi is a self-serving document and it does not mention" any exclusive right to Chekkalas in the temple. The properties have been acquired in the name of the deity and 'Chekkalas' cannot claim any special right over the properties. Worshipping public also donate freely to the temple, both in money and by other offerings. Public have never been excluded from worshipping in the temple and the physical features are not important to decide the issue, especially in the case of temple like plaint temple. It was further contended that paucity of funds was the only reason for not constructing a big temple with 'Praharam', 'Dwajasthambam' or Vimanam; etc., Act XXII of 1959 was extended to this institution only because, it is a religious institution, as defined under the Act and there is no presumption that the temple in Kanyakumari District are private temples and thus prayed for the dismissal of the suit.
4. On the above pleadings, the trial court has held that the suit temple is a private temple, belonging to Chekkala community and decreed the suit setting aside the order of the commissioner of Hindu Religious and Charitable Endowments Department.
5. Aggrieved by the findings of the trial court, the defendants-appellant preferred an appeal before this Court, wherein a learned single Judge of this Court up-held the judgment of the trial court. The learned single Judge has held that the only witness examined on behalf of the defendant admits that the temple is administered by Chekkala community people, that he was not successful in getting the statements from the residents of the street, where the temple is situated, that they also worship in the temple. The learned single Judge also opined that the claim of the defendant that it is a public temple, where people at large have got a right of worship, has not been proved by the defendant and it may be noted that Ex.A-4 is a photo marked on behalf of the plaintiff, which specifically states that except Chekkala community people, no other persons will be allowed to enter into the temple. The learned single Judge has also gone through the evidence of P.W.2 who stated that if any stranger comes to the temple, they will prevent him from entering into the temple. He also marked a book under Ex.A-25, wherein their community people have recorded the manner in which the administration of the temple should be carried on. According to P.W.2, others have no right over the suit temple. The learned single Judge also held that the defendant has not established that the suit temple is a public temple. It is also further opined that in the case of the suit temple, the physical features also has to be considered. According to both parties, the suit temple has no 'Gopuram' or 'Prakaram' both inner and outer, 'Dwajasthambam', 'Hundial' or 'Moorthis', which would be taken out in procession during festival, which are all necessary to hold that the temple is a public temples. Therefore, the learned single Judge opined that the defendant has not placed sufficient material to hold that the suit temple is a public temple, to extend the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, to the suit temple. Basing on the above findings, the learned single Judge upheld the judgment of the trial court and refused to interfere with the findings of the trial court.
6. In order to understand whether a particular temple is a private one of a public one, it is -proper to bear in mind some of the provisions of the Act, particularly which deal about the religious endowments and institutions. Sub-clause (16) of Section 6 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 defines 'religious charity' as follows:
(16) religious charity means a public charity associated with a Hindu festival or observance of a religious character, whether it be connected with a math or temple or not;
7. Sub-clause (17) of Section 6 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 defines religious endowments' or 'endowment' as follows (17) "religious endowment" or "endowment" means all property belongs to or given or endowed for the support of meahs or temples, or given of endowed for the performance of any service charity of a public nature connected therewith or of any other religious charity; and includes the institution concerned and also the premises thereof, but does not include gifts of property made as personal gifts to the archaks, service holder or other employee of a religious institution?
8. Sub-clause (18) of Section 6 of the Act defines 'religious institution' as follows:
(18) religious institution means a math, temple or specific endowment?
9. Sub-clause (20) of Section 6 of the Act defines 'temple' as follows:
(20) 'temple' means a place of whatever designation known used as a place of public religious worship, and dedicated to, or for the benefit of, or used as of right by, the Hindu community, or of any section thereof, as a place of public religious worship.
10. Unless one goes deep into the nature of acquisition, flowing of funds for such acquisition, full control and management of the temple, etc., it is very difficult to decide whether a particular temple is a public one or a private one. It is not uncommon of late that even a private temple attracts a large number of public, whereas public temple is closed almost for the reasons best known to the authorities and to the public. The factors which are necessary to justify whether a particular temple is a private one or public one, can be drawn from the principles laid down by the Supreme court and this Court and other High Courts and same of the important decisions are referred to in this regard. In the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt , popularly known as Shirur Mutt's case, the Supreme Court held as follows:
It is well-known that there can be such thing as an unregulated and unrestricted right of entry in a public temple or other religious institution, for persons who are not connected with the spiritual functions thereof. It is a traditional custom universally observed not to allow access to any outsider to the particularly sacred parts of a temple, as for example, the place where the deity is located. There are also fixed hours of worship and rest for the idol when no disturbance by any member of the public is allowed.
11. In Sri Chidambareswara Sivagami Ambigai Temple v. Commissioner, H.R. & C.E. Madras , this Court held as follows:
It is now well-settled that unlike, the temples in Kerala, there is a presumption that temples in South India are public and the onus of proof is on the person asserting it to prove that it is a private temple. Even a temple dedicated for the use of a particular section of the Hindu community could also be a public temple, if the community constitutes a considerable section of the Hindu public and the members of which worship in the temple as of right.
12. In Nanjappa Chettiar v. Commissioner, H.R. and C.E., Madras (1966)1 M.L.J. 149, a Division Bench of this Court laid down the test to determine whether a particular temple is a private temple or a public one and it reads as follows:
The well-known tests to decide whether a temple is a private or public one is to see whether the temple is located inside a private house or a public holding, whether the idols are permanently installed on pedestals inside the temple, whether there are permanent archakas appointed for performing puja in the temple, whether the deity is taken out in public in procession periodically and public make offerings on the occasion and so on.
13. In T.D. Gopalan v. Commissioner, H.R. and C.E., Madras , the Supreme Court held as follows:
The origin of the temple, the manner in which its affairs are managed, the nature and extent of the gifts received by it rights exercised by devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple are facts that go to establish whether a temple is public or private.
14. It is also admitted by the lone witness on behalf of the defendant that the temple is administered by Chekkola Community and he was also not successful in getting the statements from the residents of the street, where the temple is situated, that they are also worshipping in the temple. Admittedly, the temple has no 'gopuram' 'or 'prakaram', 'hundial' or 'moorthis' which would be taken out in procession during festivals. It is also an admitted fact that the presence of 'gopuram' or 'prakaram' 'hundial' or 'moorthis' is necessary to reach the conclusion whether the particular temple is a public temple or a private temple. In this case, the material on record shows that there was no 'gopuram' or prakaram' and there was no 'hundial' or 'moorthis' which would be taken out in procession during festivals, to hold that the temple is a public temple.
15. In view of the above concurrent findings of fact about the physical features of the temple, its origin and subsequent administration all along and the absence of any proof of other members of the public worshipping in the temple or giving any funds or contribution or the presence of any hundial, no exception could be taken to the ultimate decision arrived at that the temple in question is not a public temple. The appellant was not able to point out any concrete material or justifying reason to necessitate our taking a different view than the one arrived at by the learned single Judge.
16. In the result, this appeal is dismissed. In the circumstances, no costs.