Madras High Court
)P.Mayandi Asari(Died) vs )The Joint Director on 1 July, 2022
A.S(MD)No.270 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.07.2022
CORAM :
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
A.S(MD)No.270 of 2009
1)P.Mayandi Asari(Died)
2)Jothi
3)Pandi Selvi
4)Nagarathinam
5)Karthigai Selvi
6)Muthukumar
7)Nandhini ... Appellants
(Appellants 2 to 7 are brought on record as LRs of the deceased sole
appellant vide order dated 08.03.2022 in CMP(MD)No.7620/22)
vs.
1)The Joint Director,
Hindu Religious and Charitable Endowment, Madurai,
No.1, West Chithirai Street,
Madurai-625 001.
2)The Commissioner,
Hindu Religious and Charitable Endowment,
Nungampakkam High Road,
Chennai.
Marimuthu Asari (Died)
3)Rakkammal
4)Maniammal
5)Bathma
Page 1 of 19
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6)Mamundi Asari
7)Executive Officer,
Arulmigu Jeya Veera Anjaneya Swamy Temple,
Simmakkal, Madurai and
The Fit Person, Arulmigu Salavai Karuppanasamy Temple,
Yanaikkal, Madurai. ... Respondents
Appeal Suit filed under Section 70(2) of the Tamilnadu Hindu
Religious and Charitable Endowments Act, 1959, against the
judgment and decree dated 30.09.2009 passed in O.S.No.894 of
1989 on the file of the 1st Additional Subordinate Judge, Madurai.
For Appellants : Mr.N.Tamilmani
For R1 & R2 : Mr.P.T.Thiraviam
JUDGMENT
The plaintiff filed O.S.No.894 of 1989 on the file of the 1st
Additional Subordinate Judge, Madurai, against the
respondents/defendants for setting aside the order of the 2nd
respondent/ 2nd defendant passed in A.P.12/1986 dated 29.07.1989
confirming the suo motu proceedings of the 1st respondent/1st
defendant made in O.A.No.48/1981 dated 27.05.1985 and
consequently to declare the suit temple as private temple belonging
to the appellant/plaintiff and it is not a religious institution. After
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trial, the trial Court dismissed the suit. Challenging the said
judgment and decree, the plaintiff has filed this appeal.
For convenience, the parties are referred to as per their rank in
the suit.
2. Brief facts in the plaint are as follows:-
According to the plaintiff, the suit temple is a private temple
and the Deputy Commissioner, HR & CE, Thanjavur, declared the
suit temple as private temple in O.A.No.133/1957, dated 23.10.1958
under Section 57(B) of the Hindu Religious and Charitable
Endowments Act, XIX of 1951. According to the plaintiff, the said
decision will bind all the officers of HR & CE Department. However,
the 1st defendant/Joint Commissioner, HR& CE, Madurai, suo motu
initiated the proceedings in O.A.No.48/1981 and issued a notice to
the plaintiff calling for objection as to the declaration of the suit
temple as religious institution under the HR & CE Act. The plaintiff
contested the proceedings, in which, the 1st defendant relying upon a
report of the Inspector of HR & CE, wherein, the suit temple was
stated as a public temple, declared the suit temple as public temple
by order dated 27.05.1985, against which, the plaintiff filed appeal
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in A.P.No.12/1986 before the 2nd defendant/Commissioner, HR& CE,
Madurai, who by setting aside the order passed by the Deputy
Commissioner, HR & CE, Thanjavur, in O.A.No.133/1957, dated
23.10.1958, confirmed the order passed by the 1 st defendant.
Hence, the suit.
3. Brief facts in the written statement are as follows:-
The defendants 1 and 2 submit that only on the petition
received from the public that the plaintiff did not manage the temple
properly, the Inspector of HR & CE concerned was directed to
conduct an enquiry and the Inspector has recorded evidence of two
witnesses and before the Inspector of HR & CE, the plaintiff himself
stated that public will come and worship in the suit temple and there
is no prohibition for the public to visit the suit temple and therefore,
the order passed by the 1st defendant as confirmed by the 2nd
defendant that the suit temple is a public temple is correct and the
suit is liable to be dismissed. The defendants 3 and 8 filed separate
written statements stating that based on the complaints received
from the public that the plaintiff was residing inside the temple
campus and was utilising the amount received from the suit temple
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for himself, the defendants 1 and 2 rightly declared the suit temple
as public temple and therefore, the suit is liable to be dismissed.
4. Based on the pleadings, the trial Court framed the
following issues:-
i) Whether the order dated 29.07.1989 passed by the 2nd
defendant could be set aside and whether the suit temple can be
declared as private temple?
ii) Whether the plaintiff has a case?
iii) To what other reliefs, the plaintiff is entitled to?
5. In order to substantiate the case, on the side of the
plaintiff, the plaintiff examined himself as PW1 and 20 documents
were marked as Exs.A1 to A20. On the side of the defendants, three
witnesses were examined as DW1 to DW3 and 25 documents were
marked as Exs.B1 to B25.
6. The learned counsel for the appellant would submit that
the suit temple is a private temple belonged to the plaintiff's family
and at no point of time, public were allowed to worship in the temple
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and even in the year of 1957, the Deputy Commissioner, HR & CE,
Thanjavur, had declared the suit temple as a private temple in
O.A.No.133/1957 dated 23.10.1958 under Section 57(B) of the
Hindu Religious and Charitable Endowments Act, XIX of 1951, on the
application made by one Bodaguru Asari, father of the plaintiff. The
said order was passed even three decades ago and now the 1st
defendant has initiated suo motu proceedings in O.A.No.48/1981
and called for objections from the plaintiff against declaring the suit
temple as a religious institution as defined under the HR & CE Act.
In the said proceedings, the 3rd defendant in the suit himself got
impleaded as a party at the instigation of the 1st defendant. Based
on the report of the Inspector of HR & CE, the 1st defendant declared
the suit temple as private temple. The 2nd defendant also simply
dismissed the appeal without even considering the submissions of
the plaintiff.
7. He would further submit that the order of the 1st
defendant reveals that though the Inspector of HR & CE examined
two witnesses namely, Subbaiah Pillai aged 63 years and the
deceased plaintiff, Ex.B3-order passed by the 1st defendant in
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O.A.No.48/1981 shows that Subbaiah Pillai was not examined in the
said proceedings and further, the plaintiff was examined and he
deposed that the suit temple is a private temple. Though Ex.B3
shows that Subbaiah Pillai stated that the suit temple is visited by all
people without any permission and festivals are conducted in Chitra
Powernami, Adi Powernami, Pongal Maha Sivarathiri and even the
deceased plaintiff also gave a statement before the Inspector of HR
& CE that public are worshipping in the suit temple and he never
obstructed them and special poojas are done in all Fridays and
Tuesdays and Chithra Powernami day, neither the said Subbaiah
Pillai nor the Inspector of HR & CE, was examined to substantiate
the same. Even in the proceedings O.A.No.48/1981, the plaintiff
denied that he had not given any such statement before the
Inspector of HR & CE. Therefore, when the public have not been
examined and when the plaintiff denied that he had not given any
such statement before the Inspector of HR & CE, the trial Court
ought not to have dismissed the suit. Further, on the side of the
defendants, three witnesses were examined and even DW1 has
clearly stated that he never entered into the suit temple and DW2
and DW3 are interested witnesses and no public was examined or
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A.S(MD)No.270 of 2009
otherwise, the person who said to have given complaint has not
been examined. Absolutely, there are no materials to show that
public are allowed to worship. No doubt, in change of
circumstances, the private temple may lose its character and it can
be stated as public temple, whereas, in this case, absolutely, there
are no materials to prove that the suit temple lost its character of
private temple and now it has become the public temple.
Therefore, the orders passed by the defendants 1 and 2 and the
judgment and decree passed by the trial Court are liable to be set
aside. In support of his contentions, the learned counsel for the
appellant placed reliance upon a decision of this Court in
S.Narayana Pillai vs. The Commissioner, Hindu Religious and
Charitable Endowments Administration Department, Madras
and C.Nalla Sivan Pillai (LPA.Nos.11, 12, 78 and 79 of 2002,
decided on 21.07.2005), wherein, it has been held as follows:-
''14. In order to determine the nature of religious
institution as a place of public religious worship, a Division
Bench of this Court in a decision in R. Mayaperumal and
another v. Azhagappan Nadar (died) and others (1984 (2)
MLJ 422) has approved the views of the Hon'ble Mr. Justice
Ramaprasada Rao in an another case which reads as
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follows:-
(a) The existence of Moolasthanam, Mahamandapam,
idols of chief and other deities, utsavamurthis, daily poojas,
special poojas and procession during festive occasions,
worship by the local public belonging to different
communities without any let or hindrance, are all factors
which give the impression that the temple is a public one.
(b) If the temple is being used as a place of public
religious worship, if there is no dedication of the temple to
and for the benefit of the Hindu community or any section
thereof, if it is not used generally by the Hindu community
as of right as a place of public religious worship, if there is
no hundial and no collections are made from the public for
the performance of any festival connected with the temple
or for its maintenance and no member of the public has
come forward to say that he has contributed any amount for
the maintenance or any of the related poojas to the deity
therein, the temple will not be a public temple, but a private
one.
(c) 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 factors that go to establish
whether a temple is a public or a private one and in each
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case both the documentary and oral evidence have to be
considered as is whole while keeping in view the above
principles.
(d) An inference whether a religious institution is a
public one or a private one can be drawn from the usage
and customs of the institution or from the mode in which
the properties have been dealt with as also the other
established circumstances.
(e) The essential sine qua non to make a temple a
public temple appears to be that the public should claim the
right to worship the deity installed therein as of right. If the
origin of the temple is very well-known as a private temple,
then the clearest possible evidence is necessary for
converting that temple into a public temple. As worshippers,
are naturally welcome and as the sentiment of a Hindu
would not prevent another from making offerings or to turn
away a worshipper and as there is an innate desire in
persons in charge of private temples not to discourage
popularity of the deity, the mere circumstance that the
people in the locality were visiting the temple and were
worshipping the deity may not take away the character of
the temple from a private temple to a public temple. In all
such cases worship of outsiders is referable to the leave and
licence granted by the owner and cannot be indicative of
any dedication to the public.
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(f) A temple will not be a public temple within the
scope of the Act because in the absence of an express
dedication for the benefit of the public, user by the public as
of right must be established and such user as of right is far
different from the trustees being willing to welcome the
public to come and worship in the temple. If a temple had
no garbagraham, mahamandapam and if there was no
dwajasthambam, no prakaram, no hundi and if no kanikai
or any collection was made by the temple and if the utsava
idols were not taken in procession in the street then the
temple is not a public one.
(g) If the public do not worship the idol as of right and
simply because some poojas are performed in a temple and
certain members of the public are allowed to participate in
the pooja, the temple cannot be said to be a public temple.
15. Similarly, a Division Bench of this Court in its
decision in The Commissioner, H.R. & C.E., (Admn.)
Department, Madras v. Sri Andarvillai Mutharamman
Temple, Checkala Street, Eraniel, 2. S. Kunchu Pillai
(Secretary of the Eraliel Chekkala Samudayam) Eraniel, etc.
(1998 2 LW 819) has observed that the presence of
‘Gopuram’ or ‘Prakaram’, ‘Hundiai’ or ‘Moorthis’ is necessary
to reach the conclusion, whether the particular temple is a
public temple or a private temple. Similar view is expressed
by another Division Bench of this Court in its decision in The
Commissioner, Hindu Religious and Charitable Endowments
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Board, Nungambakkam, Madras-34 and another v. T.S.
Palanichamy and seven others (2003 (1) CTC 65).''
8. The learned counsel for the respondents 1 and 2 would
submit that no doubt, in the year 1957, the Deputy Commissioner,
HR & CE, Thanjore, in O.A.No.133/1957, has declared the suit
temple as private temple under the old Act. Even otherwise, at one
point of time, the suit temple was treated as a private temple, but in
the course of time, public were allowed to worship unconditionally
and donations were received from the public or hundial is installed to
collect money or any other contribution from the public. So, in that
way, the suit temple becomes the public temple. However, in the
year 1981, the authorities received complaints from the public and
based on that complaints, the 1st respondent initiated suo motu
proceedings and made enquiry and deputed the Inspector of HR &
CE to enquire into the matter and file a report. Based on that
report, the 1st defendant has come to the conclusion that the suit
temple is a public temple. Though during investigation by the
Inspector of HR & CE, the plaintiff was enquired and he made a
statement before him that public are allowed to worship without any
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condition, now he retracted the said statement made by him earlier.
However, other public witnesses were also examined and they
categorically stated that public were allowed to worship and also in
the important festival days, the temple got contribution or gifts from
them. Even the plaintiff admitted that there are four shops in the
suit temple that have been leased out and the plaintiff is collecting
rent. Pursuant to the declaration of the suit temple as public temple,
now the Executive Officer has been appointed and the temple is now
under the control of the Executive Officer. Considering the same,
the trial Court rightly dismissed the suit which does not warrant any
interference by this Court.
9. Heard both sides and perused the records.
10. It is the case of the plaintiff that the suit temple is a
private temple and it is a family temple. It is the specific case of the
plaintiff, even in the year 1957, the Deputy Commissioner, HR & CE,
Thanjore, in O.A.No.133/1957, dated 23.10.1958, had declared the
suit temple as a private temple and now the very same department
cannot say that the suit temple is a public temple. The 1 st defendant
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has no power to initiate suo motu proceedings and declare the suit
temple as public temple reversing the earlier order passed in 1957.
The case of the defendants is that even though due to the
circumstances prevalent during 1957, the suit temple was declared
as a private temple, in the course of time, the character of the suit
temple has been changed and now the public are worshipping and
even in the important festivals, large number of people are allowed
to worship and the plaintiff is collecting rent from the shops situated
in the temple and also contributions/gifts/donations etc., from the
worshippers. Therefore, when the plaintiff is collecting
contribution/funds from the public and allowed the public to worship
in the suit temple, it has lost its character of private temple and it
has become the public temple. Only on the complaints received
from the public regarding improper management of the suit temple
and its properties by the plaintiff, the authorities have taken suo
motu action and after enquiry, declared the suit temple as a public
temple.
11. In the plaint, the plaintiff has stated that it is a private
temple and quoted the proceedings in 1957, whereas, the
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defendants 1 and 2 have stated that though the suit temple was a
private temple in 1957, now it lost its character due to change of
circumstances and the plaintiff mismanaged the temple and its
properties and not properly maintained the accounts and therefore,
pursuant to the complaints from the public, the authorities declared
the suit temple as a public temple and now the suit temple is under
the control of the HR & CE Department. On the side of the plaintiff,
he alone was examined and though he marked all the proceedings
and also denied that he never made admission before the Inspector
of HR & CE that public were allowed to worship in the suit temple
and contributions/donations were received from the public, the
plaintiff has not examined any other witness to support the said
stand. However, on the side of the defendants, three witnesses
were examined and two of them are officials. Though the 3rd
defendant impleaded himself in that proceedings, clearly stated that
public were allowed to worship in the suit temple and hundial was
installed and contributions/donations received from the public,
admittedly, in the proceedings in O.A.No.48/1981 dated 27.05.1985,
the person namely, Subbaiah Pillai, said to have been examined by
the Inspector of HR & CE, has not been examined as a witness.
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Even in the suit also, he was not examined and no public was
examined by the HR & CE department.
12. It is a settled proposition of law that the plaintiff has to
prove his case on its own merits and he cannot take advantage of
the loopholes left by the defendants. Whereas, in this case, as per
Ex.A1, the plaintiff already got the order from the department in
1957 that the suit temple is a private temple and now the
department turn around and contend that in the course of time, the
temple lost its character of private temple and now it has become
the public temple. Once it is established through Ex.A1 that the suit
temple was a private temple, the burden is shifted on the defendants
to prove that it lost its character of private temple by establishing
the subsequent developments. However, the evidence placed before
this Court are not sufficient to sustain the claim of the defendants,
since Ex.B3 itself is clear that the department has not examined any
public and merely based on a report of the Inspector of HR & CE, the
1st defendant came to the conclusion that the suit temple is a public
temple. Even the witness cited in the report of the Inspector of HR
& CE namely, Subbaiah Pillai, has not been examined, but the 1st
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defendant has decided only based on the said report and not on any
other materials.
13. Since the materials placed before the trial Court are not
sufficient to prove the case of the defendants, the judgment and
decree dated 30.09.2009 passed in O.S.No.894 of 1989 on the file of
the 1st Additional Subordinate Judge, Madurai, is liable to be set
aside and remitted back to the trial Court for fresh trial.
14. With the above direction, the judgment and decree dated
30.09.2009 passed in O.S.No.894 of 1989 on the file of the 1st
Additional Subordinate Judge, Madurai, is set aside. The trial Court
is directed to conduct a fresh trial and give an opportunity to both
the parties to examine their witnesses and thereafter shall decide
the suit in accordance with law, as expeditiously as possible. The
defendants in the suit are at liberty to file additional written
statement, if necessary and produce fresh material, if any, to prove
that the suit temple is a public temple.
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15. In view of the above, the Appeal Suit is disposed of. No
costs. Registry is directed to send back the original records along
with the judgment and decree passed in this appeal to the trial Court
forthwith.
bala 01.07.2022
Index : Yes / No
Internet : Yes
To
The 1st Additional Subordinate Judge,
Madurai.
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A.S(MD)No.270 of 2009
P.VELMURUGAN, J.
bala
JUDGMENT MADE IN
A.S(MD)No.270 of 2009
DATED : 01.07.2022
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