Hindu Religious and Charitable Endowment (A) Department vs N. Sivarajan Nadar and Others

V. Kanagaraj, J.—The defendant in the suit has preferred this appeal suit against the judgment and decree dated 29.10.1986 made in

O.S.No. 10 of 1984 by the Court of Subordinate Judge, Nagercoil.

The respondents herein have filed the suit against the appellant-Board seeking to set aside the order passed by the Commissioner, Hindu

Religious and Charitable Endowment Board in his A.P.No. 13 of 1983, dated 30.6.1983 on grounds that one Narayana Perumal, son of Peda

Perumal constructed ''Arulmigu Srimen Narayana Temple'' at a place Koyyanvilai in Neendakari ''B'' village in Survey Nos. 10925 and 10928 in

an extent of 40 cents of land for the worship of the family members; that there is no idol in the temple and only by lighting the light, they used to

worship; that the ancestors of the plaintiffs worshipped the temple; that during settlement on the application of Peda Perumal Nadar and

Shanmugha Perumal Nadar, the ancestors of the plaintiffs, the patta for the temple land had been issued and thereafter, in the partition that took

place on 26.9.1121 M.E. among the family members, the name of the temple has been mentioned in the said partition deed, further reciting therein

that the temple had to be administered as per the traditions of the family; that in the year 1966, temple''s Mulasthanam was constructed by Peda

Perumal and Senbagaraman at a cost of Rs. 60,000 and that the ancestors of the plaintiffs have annexed properties in the name of the temple.

The further contentions of the plaintiffs are that since the second respondent Board attempted to interfere with the administration of the temple

by the plaintiffs, family, an application u/s 63(a) of the Tamil Nadu Hindu Religious and Charitable Endowments Act (hereinafter referred to as the

Act) was made to the Deputy Commissioner stating that the temple was not a public temple and the said authority passed an order as per his

O.A.No. 19 of 1977 declaring that the temple was a public temple. On appeal before the Commissioner, H.R. & C.E. Board made in A.P.No.

177 of 1977, the Commissioner admitted the appeal and remanded the matter for fresh enquiry and disposal by the Deputy Commissioner himself

and hence, the Deputy Commissioner as per O.A.No. 34 of 1979 again enquired into and dismissed the application and on appeal in A.P.No. 13

of 1983 preferred the second time before the Commissioner, H.R. & C.E. Board; that appeal also came to be dismissed by the Commissioner

holding that it was a public temple and hence u/s 70 of the Act, seeking to declare that the temple is not a public temple but a private temple

owned by the family members of the plaintiffs, the statutory suit has been filed praying to set aside the order passed by the Commissioner as above

mentioned.

The plaintiffs would pray for the said relief on the pleadings that the temple has no flag-pole, no deity, no Utsavamurthy and only the family

members of the plaintiffs are performing the poojas; that there is no hundi nor any money collected from the general public for the management of

the temple and on such grounds, they would file the suit praying for the relief extracted supra.

On the part of the defendants, it would be pleaded that the temple is of the dimension of the public temple; that even though there is no idol,

poojas are being performed and the temple had been devoted for the public purpose; that the properties of the temple are in the name of the

temple; that it cannot be admitted that the temple was started by Narayana Perumal; that because of the averments of the partition deed, the

characters of the temple as public temple cannot be erased; that apart from the family members of the plaintiffs, some others belonging to the Hindu

religion have also contributed sufficiently to the development of the temple; that there is no reason to set aside the order passed by the

Commissioner, H.R. & C.E. and that the suit is barred by limitation. On such averments on the part of the defendant- Board, they would pray to

dismiss the suit with costs.

The trial court based on the pleadings put forth as above, having framed five issues viz.,

(i) Whether the suit temple is a private temple of the plaintiffs or a public temple as defined by Section 6(20) of the Hindu Religious and Charitable

Endowments Act, 1959?

(ii) Whether the suit is barred by limitation?

(iii) Whether the order passed by the Commissioner, Hindu Religious and Charitable Endowment Board in A.P.No. 13 of 1983 dated 30.6.1983

is to be set aside?

(iv) Whether the plaintiffs are entitled to the reliefs sought for? and

(v) What orders have to be passed regarding costs?

has conducted the trial with due opportunity for parties to be heard, in which two witnessess would be examined on the part of the plaintiffs and

three witnesses on the part of the defendants as P.Ws.1 and 2 and D.Ws.1 and 3 respectively. So far as the documentary evidence is concerned,

nine documents have been marked on the part of the plaintiffs as Exs.A-1 to A-9, Exs.A-1 and A-2 being the dismissal order passed by the

Commissioner, H.R. & C.E., Ex.A-3 being the cover sent by the Commissioner, H.R. & C.E., Ex.A-4 being the partition deed dated 26.9.1121

M.E., Ex.A-5 being the document dated 13.4.1191 M.E., Ex.A-6 being the sale deed dated 15.6.1046 M.E., Ex.A-7 being the chit dated

28.8.1114 M.E., Ex.A.8, being the kist receipt dated 20.4.1986 and Ex.A-9 being the notice from the H.R. & C.E. dated 20.1.1980.

Likewise, eight documents would be marked on the part of the defendant- Board as Exs.B-1 to B-8, Ex.B-1 being a letter sent to the defendant

dated 30.1.1977, Ex.B-2 being the order passed by the Commissioner in Appeal No. 13 of 1983, dated 30.6.1983 Ex.B-3 being the statement

given by Pusari Andi Nadar to the Inspector, H.R. & C.E. Board dated 14.4.1977, Ex.B-4 being the report sent u/s 63(a) of the Act, dated

26.6.1977, Ex.B-5 being the chitta extract of the patta No. 797 of Dharmapuram village dated 11.4.1977, Ex.B.6 being the chitta extract for

Neendakari village B. Survey Nos. 6458, 6459, 6460 and 6457 dated 1.4.1977, Ex.B-7 being the settlement register extract for Survey Nos.

10925, 10928 and 10866 dated 11.4.1977, Ex.B-8 being the chitta extract for patta No. 807, dated 12.4.1977.

The trial court having considered the propositions of law as propounded in an earlier case delivered by this Court in R. Mayaperuaml and

Another Vs. Azhagappan Nadar (died) and Others, , wherein it has been held that the following three characteristics have to be proved for a

temple to be branded as a public temple. they are:

(i) It is a place of public worship,

(ii) there should be acceptable proof of dedication for the benefit of the Hindu community, and

(iii) it should also be established that the worshippers have been using as of right the religious institution as a place of public religious worship.

The court below has further extracted the following from the same judgment in the context of the patta standing in the name of the temple viz.

Arulmighu Srimen Narayanaswamy Temple:

The fact that patta stands in the name of the deity does not in any way detract from the temple being a private temple. Any private individual

desiring to consecrate a temple will naturally put the properties in the name of the deity and not retain the property in himself.

Then, after discussing the evidence placed on record in its own way, the lower court would ultimately arrive at the conclusion to decree the suit as

prayed for. Aggrieved, the defendant before the lower court has come forward to prefer the above appeal suit on certain grounds as brought forth

in the grounds of memorandum of appeal.

During arguments, the learned Government Advocate appearing on behalf of the appellant would cite three judgments of this Court, in support

of the case of the appellant. They are:

(1) T.R.K. Ramaswami Servai and Another Vs. The Board of Commissioners of the Hindu Religious Endowments, . (2) Logambal Ammal and

Another Vs. The Commissioner for Hindu Religious and Charitable Endowments, and (3) T. V. Durairajulu Naidu v. The Commissioner, H.R. and

C.E. (Admn.) Department, Madras (1986) 2 M.L.J. 390.

So far as first of the above three judgments is concerned, the learned Full Bench of this Court extracting the meaning of the definition ""temple

as defined by Beasley, C.J., in an earlier decision rendered in Board of Commissioners for the Hindu Religious Endowments and Others Vs.

Sreemathi Rukmini alias Kunhikavu alias Kuthiravattath Kongasseri Puthukulangara Amma Neethiyar and Another, , wherein it was observed:

The definition of a temple in the Act requires it to be a place which is used; and this temple, not only was not used and is not being used, but it

cannot be used until it is rebuilt. It has in fact been in ruins for many years. I, therefore, think, that the learned trial Judge was perfectly right in

holding that the Board had no jurisdiction with regard to its properties.

and having discussed the merit of the above proposition, it was ultimately held (by the Full Bench) that:

If the public or that section of the public who go for worship consider that there is a Divine presence in a particular place and by offering worship

at that place, they are likely to be the recipients of the bounty or blessings of God, then, you have got the essential features of a temple as defined

in Section 9, Clause (12) of the Act. The presence of an idol, though an invariable feature of Hindu temples, is not a legal requisite under the

definition of a temple in Section 9, Clause (12) of the Act.

So far as the second judgment cited above is concerned, the Division Bench of this Court held:

Though the appearance of a temple is a relevant circumstance it is by no means a decisive one. Once there is evidence to show that a temple is

used as a public place of worship, the presumption in this part of the State is that it is a public temple. If a place is used as of right by the Hindu

community for public religious worship, it is a temple within the meaning of Section 6(20) of the Hindu Religious and Charitable Endowments Act.

In the third judgment cited above, in a case where one Veerasami Naidu executed a Will and Codicil founding a charity for the salvation of his

soul and he dedicated it to the public and required it to be used as a temple and mutt, it has been held by the learned single Judge of this Court:

He dedicated it to the public and required under the Will to use it as a temple and mutt. Nothing more is necessary than this unequivocal dedication

for the public to enjoy as of right. If a sense of reverence is created by the place in the belief that God resides there or of an edifice devoted to

divine worship, that would be enough to attract the definition of ''Temple'' u/s 6(20) of the Act. In other words, it is a sense of reverence that is

very important. It may be stated that this very definition has been repealed under the Act right from the Act II of 1927, against under the Act XIX

of 1951 and also the present Act (XXII of 1959). Nowhere the requirements as are ordinarily expected of a temple are insisted upon. The

presence of an idol is unnecessary. It is the faith that it is the abode of God that matters. It is that compelling faith, that by offering prayers, one will

be the object of bounty that is important.

Citing the above judgments, the learned Government Advocate would exhort that in a place, which is dedicated for worship, whether there is

idol or Utsavamurthy or performance of poojas held regularly or not, it falls within the definition of the ''temple'' as defined u/s 6(20) of the Act,

according to which it is a public place of worship rather a public temple; that there is no doubt that the general public are making use of the temple

for religious worship and it is not confined to the family members of the respondents/plaintiffs and hence just for the simple reason that the

respondents came forward to state that the temple was owned by the family members of the respondents, it cannot become a private temple since

this temple is one having all the characteristics to be called a public temple and hence would pray to allow the appeal.

In Appeal Petition No. 13 of 1983, the Commissioner, H.R. & C.E. would remark that when the Deputy Commissioner, Tirunelveli inspected

the temple on 17.9.1981, he observed the temple being used as a place of public religious worship as of right by the Hindu community; that from

the evidence of P.W.2 therein and from the report of the Assistant Commissioner, H.R. & C.E. dated 21.8.1979, it is clear that the worship in this

temple is for ""Arubam""; that the plea of the appellants that patta alone is not proof of the public nature of the temple is untenable and would dismiss

the appeal preferred against the dismissal order passed by the Deputy Commissioner.

But, on the contrary, the lower court, having extracted the three ingredients, which are necessarily to be proved for a ''temple'' to be branded

as a ''public temple'' as per the case reported in R. Mayaperuaml and Another Vs. Azhagappan Nadar (died) and Others, and further seeking

evidence from the defendants in proof of the fact that the temple, which is the subject matter, is a public temple, has gone into dissecting the case

as though the defendant/H.R. & C.E. Department has come forward to pray for the relief of declaration to the effect that the temple is a public

temple. It is just contrary in the case in hand. It is the plaintiff before the lower court, who filed the suit on ground that there had been the existence

of the fact or the non-existence of the same regarding the nature of the subject matter, which is a temple seeking to declare the same as the private

temple of their family and it does not have any other characteristics and features so as to be brought u/s 6(20) of the Act as a public temple. Since

the plaintiffs have instituted the suit praying to declare the suit temple as their private temple and does not have the characteristics and features of a

public temple, the onus of proof of the allegations of the plaint is heavily on the plaintiffs to prove their case and the same cannot be cast on the

defendant/Department as it is suggested by the case cited in para No. 5 of the judgment of the lower court reported in R. Mayaperuaml and

Another Vs. Azhagappan Nadar (died) and Others, , wherein the proof of such points, as extracted from the lower court judgment, could be

imposed only in such event where the Department or anyone has filed the suit seeking to declare the temple as a ''public temple''. But, here, it is a

case by individuals to declare the suit temple as private temple and the onus to the extent of the pleadings and prayer being heavily on the plaintiffs

to prove, proceeding from that angle of approach, the lower court seems to have adopted the wrong approach expecting the proof from the

defendant, as a result of which ultimately the lower court has to arrive at the wrong conclusions saying that no sufficient proof has been placed on

the part of the defendants either by oral evidence or in the nature of documentary evidence and hence the conclusions arrived at on such wrong

expectations of proof from the defendants is not sustainable and therefore the judgment and decree passed by the lower court cannot be sustained.

On the other hand, it is a case that has to be remanded for reconsideration to the same court for proper appreciation of the evidence with further

opportunity for parties to be heard.

In result,

(i) the above appeal suit stands allowed setting aside the judgment and decree dated 29.10.1986 made in O.S.No. 10 of 1984 by the Court of

Subordinate Judge, Nagercoil.

(ii) the case is remanded to the trial court for proper appreciation of the evidence already recorded with further opportunity to parties to put in any

more evidence and to deliver the judgment on merit and in accordance with law;

(iii) since it is a long pending one, a further direction is issued to the lower court to take up this case out of turn and on priority basis and observing

all the requirements, as aforementioned, deliver the judgment in six months from the date of receipt of this judgment, and

(iv) the parties are hereby directed to appear before the lower court on 22.12.2000.

However, in the circumstances of the case, there shall be no order as to costs.