Muthuswami Gurukal vs Aiyaswami Thevar and Sixteen Ors.

Ramamurti, J.—This Letters Patent Appeal is preferred against the Judgment of Jagadisan J., who confirmed the Judgment of the learned

Subordinate Judge of Coimbatore in Original Suit No. 267 of 1956. The said suit was filed by the Appellant for a declaration that be and

Defendants 6 to 12 (members of his family) are the hereditary trustees of three small temples, Sri Thiru Nandhiswara Swami temple, Sri

Kailasanathar temple and Sri Selva Vinayakar temple in Sircar Kannadiputhur in Udamalpet taluk in Coimbatore district, and that the order of the

Commissioner, Hindu Religious and Charitable Endowments, appointing Defendants 1 to 5 as trustees is invalid and would not affect the rights of

the Plaintiff.

On 20th November 1955, the Assistant Commissioner of Hindu Religious and Charitable Endowment Board appointed Defendants 1 to 5 as

non-hereditary trustees. The Plaintiff filed a petition u/s 57-B of the Act before the Deputy Commissioner for a declaration that Plaintiff and

Defendants 6 to 12 are the pujaris and hereditary trustees of the temple. That petition was rejected and an appeal before the Commissioner was

equally unsuccessful. The present suit has been instituted to set aside the order of the Commissioner for the Hindu Religious and Charitable

Endowments.

The documentary evidence in this case mainly consists of the inam fair register, Exhibit A-1 and Exhibits A-2 to A-4 extracts from the register

relating to the village of Sircar Kannadiputhur. The entries in the aforesaid document show that the devadayam was granted by the palayagar of

Madurai in favour of the three deities aforesaid and Subramania Gurukkal, admittedly an ancestor of the Plaintiff, was acting as the pujari and

managing and attending to the affairs of the temple. It is clear from the evidence that these three temples do not own any other property except the

devadayam grants of a total extent of 6 acres in the village of Kannadiputhur. Both the learned Subordinate Judge, as well as Jagadisan J., have

found that, for a very long number of years, the Plaintiff and his predecessors-in-title have been in possession and management of the properties

functioning as trustee while at the same performing the daily puja and also attending to the annual festivals. Evidence also is clear that none of the

villagers took any interest in the affairs of the temple nor interfered in any manner with the management of the temples and their affairs and the lands

by the Plaintiff and his predecessor-in-title for a very long number of years. In fact on this aspect of the matter both the trial Court as well as

Jagadisan J., had accepted the Plaintiff''s evidence. There is no satisfactory rebuttal evidence either. While discussing the evidence, the learned

Judge has summed up as follows:

The only property which these temples had is an extent of six acres of land in the village. These lands were no doubt in the possession of the

poojaris. Evidence is that they have been receiving the income from these lands, performing daily pooja and maintaining themselves from out of

the...income. It is no doubt true that the members of the Plaintiff''s family have been getting the income from the suit temples'' land and utilizing it for

their own benefit as well as for the upkeep of the temples. But this would not be evidence of the management of the temples. The fact of

possession of the inam lands could only be attributed to their functioning its archakas in which right they were in possession of the lands. If this

conduct is consistent with their capacity as Poojari it may also be consistent with the right of trusteeship, now put forward. But it cannot be said

that there is such conclusive proof as would enable the members of the Plaintiff''s family to claim prescriptive right of hereditary trusteeship. This is

a peculiar case in which the mere fact of possession of inam lands will not by itself be sufficient to establish the claim of trusteeship now put

forward by the Plaintiff.

In view of this the learned Judge held that the Plaintiff has not made out his right to the trusteeship of the three temples in question.

We are with great respect unable to agree with this view of the learned Judge. We are of the opinion that on the evidence in this case and on his

own reasoning it should have been held that the strong presumption arising in favour of the Plaintiff has not been rebutted at all. In the case of small

village temples where the temple, property is of insignificant value and the income is hardly sufficient even to meet the routine expenses of the

temple, if the archaka or the pujari is left in management of the temple lands and the affairs of the temple without any inference by any of the

villagers for a long number of years, it must be presumed that with the consent and acquiescence of the worshippers of the village the pujari is the

trustee as well. This Court has been consistently taking the view that in our parts it is frequently found that the office of archaka and a manager or a

trustee are found united in the same person, that is the archaka.

In Andavar and Others Vs. Periathambi Padayachi and Others, Balakrishna Ayyar J., took the view that in the absence of any control or check

by the villagers exercised over the management of the properties of the temple or its affairs by the pujaris and in the absence of any demand for

and rendition of accounts by the pujaris to the villagers, it must be held that the pujaris themselves have been functioning as trustees with the

consent and acquiescence of the worshippers of the temples. The learned Judge followed the decision in Paningapalli Ramasami Vs. Pentakota

Ramasami,

Our attention was drawn to a few recent unreported Judgments of this Court in which the same view has been taken. In Appeal Suit No. 75 of

1956 one of us held that whatever may be the position with regard to temples having large endowments, in the case of small temples owning small

extent of properties, the pujari himself functions as the trustee. In this decision it was held that the unreported Judgment of a Bench of this Court in

Letters Patent Appeal No. 36 of 1953, is not authority for the position that the office of hereditary trustee and hereditary pujari could not be

combined and vested in the same person, or that it would be illegal for the same individual to be both a hereditary trustee as well as a hereditary

pujari. It was pointed out that there is no such general rule and the matter has to be decided upon the faces of each case.

In Appeal Suit No. 300 of 1959, Venkatadri J., has also taken the same view. In that case the inam lands endowed to the temple known as

Chennarayaswami temple in Chakkaragoundanahalli in Dharmapuri taluk, Salem district, were of an extent of 10� acres and it was found that

from about 1825 onwards the archaka was in possession and management of the lands of the temple, and its affairs without any interference or

control by the villagers. The learned Judge followed the decision in Paningapalli Ramasami Vs. Pentakota Ramasami, and held that there was a

strong presumption that under those circumstances, both the offices were united in the pujari, and that the Bench Judgment in Appeal Suit No. 76

of 1956, (unreported) is not authority for the position that it is legally impossible for both the offices to vest in the same person. It may also be

mentioned that the learned Judge has followed a Judgment of Jagadisan J., himself in Appeal Suit No. 177 of 1958, in which the learned Judges

has taken the view that there is no legal obstacle in a person functioning both as a trustee and pujari and that in such a situation it is not likely that

the interests of temple will suffer by a person holding both the offices.

Very recently Ramakrishnan J., has also taken the same view in Appeal Nos. 237 and 244 of 1960. In that case the temples were small village

temples with an endowment of lands about 23 acres in extent with an income of rupees one thousand. The learned Judge followed the aforesaid

unreported Judgments and has held that there was nothing illegal in hereditary trusteeship and pujariship being combined in the same person

especially in the case of small temples where there has been no interference or any control by any of the villagers. We are, therefore, of the opinion

that in such cases there will be a presumption that the pujari himself is the hereditary trustee of the temple, and the note of warning given by

Rajamannar C.J., in the unreported Judgment in Letters Patent Appeal No. 36 of 1953, that by reason of conflict between interest and duty it

would be a bad precedent for the office of hereditary trusteeship and pujari tote combined in one and the same person should not be applied to

small temples where the villagers do not take any interest and everything has got to be attended to by the pujari himself. In fact that Judgment itself

shows that the Bench has made a distinction in the case of small temples. We are, therefore, unable to agree with the reasoning of Jagadisan J., that

where the evidence is consistent with the pujari having acted as the trustee there should be any further or particular evidence that the pujari

expressly claimed the right of trusteeship as well. As the evidence shows that for over hundred years the Plaintiff and his ancestors have been

functioning as pujaris and attending to the management and affairs of the temples it must be held that the Plaintiff has made out his right to the

hereditary trusteeship, and that the appointment of Defendants 1 to 5 as non-hereditary trustees is invalid and that cannot affect the rights of the

Plaintiffs and Defendants 6 to 12.

The learned Judge in his order has made some reference to the fact that the shrine itself is in ruins and that utsavams are not performed

regularly, and that there is some lapse in the performance of the duties on the part of the Plaintiff as a pujari. In this connection, the learned Judge

also noticed that for this state of affairs the Plaintiff and the members of the family cannot be blamed as the income from the temple properties is

hardly sufficient to meet the routine expenses for the puja and also to maintain themselves. The question as to how far and what better attention in

the management of the temples'' affairs could be secured and how far the Plaintiff is guilty of negligence or mis-management, and whether the

Plaintiff and the members of his family can at all be blamed are all matters to be considered by the appropriate authorities for taking any action as

against the Plaintiff and the members of his family by way of appointing others as associate trustees or by exercising more effective check and

control over the Plaintiff. In the present case the trustee has admitted that the lands are temple lands and he never set up any rights to them as his

own property.

For the above reasons we are unable to concur with the view taken by JAGAOTSAN J., and we set aside his Judgment and decree and

decree the Plaintiff''s suit as prayed for. The Plaintiff will have his costs throughout.