The Assistant Commissioner, Hindu Religious and Charitable Endowment and Others vs Nattanmai K.S. Ellappa Mudaliar and Others

Srinivasan, J.—Defendants 1, 2 and 4 in O.S. No. 19 of 1984 on the file of the District Munsif, Salem have preferred Second Appeal No.

42 of 1986 while the fifth defendant in the same suit has preferred the other Second Appeal No. 43 of 1986.

The suit was filed originally by two persons for a declaration that Arulmigu Kannanur Mariamman temple situated in Tharamangalam Village is a

denominational temple entitled to the protection conferred by Article 26 of the Constitution of India and that the provisions contained in the Tamil

Nadu Hindu Religious and Charitable Endowments Act, 1959 could be applied only subject to the constitutional rights recognised by Section 107

of the said Act, for a direction to the Assistant Commissioner, H.R. & C.E., Salem-7 to remove the hundial installed by him only on 7-7-1982 by

means of a mandatory injunction and to restrain the defendants and their men from installing a hundial or directing the plaintiffs to install a hundial or

by appointing trustees or in any other manner interfering with the possession and management of the temple by the plaintiffs by means of a

permanent injunction. During the pendency of the suit, the second plaintiff died and plaintiffs 3 to 9 were added as his legal representatives. Some

time thereafter, the 10th plaintiff was added as a party on the footing that he succeeded to the rights of the second plaintiff as the chosen

representative of a section of the community called peria katchi. According to the plaint, Arulmigu Kannanur Mariamman temple situated in

Tharamangalam village, Omalur Taluk, Salem district was established and managed by the members of religious denomination of Senguntha

mudaliar residing at Tharamangalam and the actual management was attended to by the chosen representatives of the two sections of the

community known as peria katchi and chinna katchi. There was an agreement between the members of the two katchis in 1933 with regard to the

terms of management and the same was upheld in a suit O.S. No. 780 of 1958 on the file of District Munsif, Sankari at Salem. The judgment of

the District Munsif was confirmed on appeal by the Additional District Judge, Salem in A.S. No. 288 of 1959 and the second appeal against the

same, viz., S.A. No. 877 of 1960 was dismissed. It is stated in the plaint that the first plaintiff and the second plaintiff originally and after his death

the 10th plaintiff are the chosen representatives of the two katchis. In the year 1973, when the Assistant Commissioner, H.R. & C.E. Salem issued

a notice in R.C. 11821/73/-A3, dated 1-12-1973 inviting applications for appointment of non-hereditary trustees for the temple, the first plaintiff

filed a revision petition before the Commissioner and the same was allowed by order dated 10-5-1975 on the ground that the temple is a

denominational temple. The first defendant was ordered to install a hundial in the year 1978 without giving notice to or calling for objections from

the plaintiffs or any of the community people. The said order was challenged in W.P. No. 2969 of 1978 and this Court quashed the order and

directed the first defendant to give notice to the plaintiffs before proceeding further. Subsequently, notice was issued and objections were called for

and overruling the plaintiff''s objections the first defendant passed and order on 30-7-1981 directing the plaintiffs to install a hundial. The second

defendant viz., the Inspector of H.R. & C.E., Omalur attempted to install a hundial even on 31-7-1981 itself bringing the same from Siddar Koil

illegally. On intervention by police, the second defendant took away the hundial without installing the same. The plaintiffs have submitted that the

temple is a denominational temple exclusively belonging to and managed by the denomination of Sengundha Mudaliar of Tharamangalam and that

the provisions of Article 26 of the Constitution of India govern the said temple. The plaint alleged further that after the receipt of the summons in the

suit and notice in the injunction petition, the first defendant appeared to have appointed the third defendant as fit person to the temple by ante-

dating the order. Even while the suit was pending, the fourth defendant viz., the Commissioner, H.R. & C.E. Madras gave a direction to the first

defendant to appoint trustees for the temple. In pursuance of the same, the first defendant appointed the fifth defendant as the trustee in utter

disregard of the pending suit. The defendants had no right to interfere with the possession and management of the plaintiff and the reliefs referred to

earlier and prayed for on that basis.

Written statements were filed by the first defendant, third defendant, fifth defendant and seventh defendant. Additional written statements were

filed by the first defendant and the same were adopted by second and fourth defendants. The common case of the defendants is that the allegation

that the temple was established by the religious denomination of, Senguntha Mudaliars is false and that the suit temple does no belong to any

particular religious denomination. Article 26 of the Constitution of India is not applicable to the suit temple. The allegation that the management of

the temple has been with the chosen representatives of the two katchis of the Senguntha Mudaliar Community is not true. In one of the additional

written statements filed by the first defendant it is stated that applications were called for only from the Senguntha Mudaliar community of

Tharamangalam and the fifth defendant who belonged to the said community was appointed as trustee. As such, the rule laid down in Section 51 of

the Tamil Nadu Hindu Religious & Charitable Endowments Act is fulfilled. In the additional written statement filed by the fifth defendant it is stated

that the allegation that Senguntha Mudaliar community of Tharamangalam had common faith over Goddess Kannanur Mariyamman is false and that

it is false to allege that the suit temple was established by the said community for purpose of worship of their community people. In the said

additional written statement it is also stated that the Senguntha Mudaliar community have common faith in ""periyandachi"" situated opposite to

Panchayat Union Office, Omalur Road, where there are two path is for their exclusive worship. The defendants also contested the maintainability

of the suit in view of the provisions of Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act.

On these pleadings, the trial Court framed issues with reference to the maintainability of the suit and the bar u/s 108 of the Hindu Religious and

Charitable Endowments Act and the entitlement of the plaintiffs to the reliefs prayed for by them. The trial Court also framed additional issue on

23-4-1984 as to whether there was proper notice u/s 80, Code of Civil Procedure. The trial Court held that the suit was not maintainable as the

rights put forward by the plaintiffs were those of Senguntha Mudaliar community of Tharamangalam and the community was not before the Court.

It was also held that there was no notice u/s 80, CPC and consequently, the suit was not maintainable on that ground too. The trial Court held that

the plaintiffs did not prove that Senguntha Mudaliar community was a religious denomination and that the temple was established and maintained by

that community. The trial Court also upheld the plea of the bar of suit by virtue of the provisions of Section 108 of the Hindu Religious and

Charitable Endowments Act. Based on those findings, the trial Court dismissed the suit.

Plaintiffs 1 and 3 to 10 preferred an appeal to the District Judge, Salem. When the appeal was pending, the plaintiffs filed I.A. No. 277 of 1984

praying for leave to file the suit in a representative capacity under Order 1, Rule 8, Code of Civil Procedure. The said application was dismissed

on 20-11-1985 on the ground that the allowing of the petition would change the nature of the suit which would put the clock back so as to

necessitate a retrial. After the main appeal was heard, the learned Judge allowed the same reversing the conclusions of the trial Court. The

appellate Judge took the view that Ex. A6, dated 1-7-1981 by which objections, were filed by Plaintiffs 1 and 2 before the Assistant

Commissioner, Hindu Religious and Charitable Endowments, Salem in reply to his notice relating to the installation of hundial would serve the

purpose of a notice u/s 80, CPC and there was no necessity for a separate notice, arid therefore, the suit was maintainable. As regards the

representative capacity of the plaintiffs, the learned Judge held that the suit was not filed in a representative capacity and there was no necessity for

the plaintiffs to do so as they were claiming rights as elected representatives of the community and the dismissal of the suit as not maintainable was

erroneous. Thirdly, the learned Judge held that the community of Senguntha Mudaliar of Tharamangalam was a religious denomination having

common faith in the temple of Kannanur Mariamman and they were entitled to protection under Article 26 of the Constitution of India. The learned

Judge further held that the defendants were not entitled to install a hundial or interfere with the management and possession of the plaintiffs.

Consequently, the suit was decreed by the learned appellate Judge as prayed for by the plaintiffs.

In these second appeals, Sri O.V. Balaswami appearing for the appellant in S.A. No. 43 of 1986 and the Additional Government Pleader

appearing for the appellants in S.A. No. 42 of 1986 made the following submissions:

(1) The suit is not maintainable as there was no notice u/s 80, Code of Civil Procedure.

(2) The suit having been filed by individuals putting forward the rights of the community as such, cannot be maintained without complying with the

provisions of Order 1, Rule 8, Code of Civil Procedure. As admittedly leave was not obtained under Order 1, Rule 8, CPC in the trial Court and

the application therefore was dismissed by the lower appellate Court, the suit has to be dismissed.

(3) The Senguntha Mudaliar community is not a religious denomination within the meaning of Article 26 of the Constitution of India.

(4) The plaintiffs have not proved that the suit temple was established and administered by the Senguntha Mudaliar Community.

As regards the objection u/s 80, Code of Civil Procedure, learned Counsel for the respondents drew my attention to an order passed by the

District Munsif, Mettur before whom the suit, was originally filed as O.S. No. 750 of 1881. As application I.A. No. 627 of 1981 was filed before

the District Munsif, Mettur for dispending with the issue of notice u/s 80, CPC and by order dated 3-8-1981, the learned District Munsif

dispensed with the said notice by virtue of the power conferred by Section 80(2), Code of Civil Procedure. Under the provisions of Section 80(2)

of the Code of Civil procedure, the suit may be instituted with the leave of the Court without serving any notice as required by Sub-section (l) of

Section 80, if an urgent or immediate relief against the Government or any public officer is sought. The sub-section prevents a Court from granting

any relief in the suit, whether interim or otherwise, without giving to the Government or public officer as the case may be, a reasonable opportunity

of showing cause in respect of the relief prayed for in the suit. In the present case, the notice has been dispensed with on 3-8-1981. It is rather

unfortunate that neither the District Munsif, Salem who tried the suit ultimately nor the second Additional District Judge of Salem, who heard the

appeal, took note of the order of the District Munsif, Mettur dispensing with issue of notice. The counsel who appeared in the proceedings had

obviously not brought the said order to the notice of the two Judges. After the learned Counsel for the respondents referred to the order dispensing

with the issue of notice, learned Counsel for the appellants contended that the said order was a nullity inasmuch as there was no urgency at the time

of the filing of the suit and there is no record to show whether any urgent interim order was prayed for by the plaintiffs. I cannot accept this

contention. The defendants never challenged the validity of the order dated 3-8-1981 dispensing with the issue of notice. In none of the written

statements or the additional written statements, the plea of non-maintainability of the suit for went of notice u/s 80, CPC was taken. That is a good

reason to infer that the defendants were aware of the order dispensing with the issue of notice. Even otherwise, the presumption u/s 114(e) of the

Evidence Act that judicial and official acts have been regularly performed, should apply and nothing has been placed before me to dislodge that

presumption. Hence, I hold that the plaintiffs cannot be non-suited for want of notice u/s 80, Code of Civil procedure.

Turning to the second point urged by the appellants, a reading of the plaint makes out that the right put forward therein is that of the community

and not any individual right of the plaintiffs. In paragraph III of the plaint it is alleged that the temple was established and managed by the members

of the religious denomination of Sengunthar Mudaliars residing at Tharamangalam and the actual management of the temple was attended to by the

chosen representative of the two sections of the community known us Peria Katchi and Chinna Katchi. In paragraph IV the denominational

character of the institution is reiterated. In paragraph VII it is stated that the temple is a denominational temple exclusively belonging to and

managed by the denomination of Senguntha Mudaliar community of Tharamangalam. In the same paragraph the following averments are found:

So it is clear neither the defendants nor any of the authorities are entitled to interfere in any manner under the guise of regulating the administration

either by directing to install hundial or by appointing trustee. The plaintiffs submit that the temple as already stated is being exclusively belonging to

and managed by the Mudaliar Community. The entire funds are collected only from the Mudaliar Community of Tharamangalam and not even a

single pie is ever collected of donated or contributed from any other Community.... The defendants now openly proclaim that they will install the

hundial even if it is contrary to law at any cost and appoint trustee for the temple so as to interfere with the management of the Mudaliar

Community.

In paragraph VII (a), it is alleged that the appointment of the third defendant as fit person has transgressed the rights of the management of the

community as guaranted under Article 26 of the Constitution of India read with Section l07 of the Hindu Religious and Charitable Endowmonts

Act. Again, the main relief prayed is for declaring the temple as a denominational temple entitled to the protection under Article 26 of the

Constitution of India and the other reliefs are only prayed as consequential reliefs. Thus, it is clear that the plaintiffs are putting forward the rights of

the community as such and claiming themselves to be the chosen representatives of the two sections of the community.

Order 1, Rule 8, CPC enables one or more persons to sue on behalf of numerous persons having the same interest with the permission of the

Court. If an individual seeks to advance the claim of a group of persons, he is enabled to do so, by virtue of the provisions of Order 1, Rule 8,

Code of Civil Procedure, but the procedure prescribed therein should be strictly followed. The benefit of the rule is available only to persons who

fulfil the requirements thereof. It is well known that there is a clear legislative concern in the entire Code indicating that Court should make judicial

orders only after hearing the persons likely to be affected by any decision in any cause. If a person is permitted to sue as a representative of

another, or a group of persons, it is a matter of far-reaching effect as it is likely to affect the interests of those who may not participate at the

hearing of the suit. Such persons are obviously entitled to put forth their objections to the filing of the suit and to the capacity of the representative

who seeks either to be the plaintiff or defendant and even to the merits of the cause. All that will be possible only if the party sought to be

represented is given an opportunity to raise objection, if any. It is only in accordance with the said salutary principle, the procedure in Order 1,

Rule 8, CPC has been prescribed. The object of the rule is to avoid unnecessary tedium and expense of litigation and to give a binding force to the

decision which may be ultimately passed in the suit. A person cannot seek to advance the claims of a group of persons or community without

adopting the procedure under Order 1, Rule 8, CPC if the relief is prayed for only on the basis of the right of the community as such. It is no doubt

true that Order 1, Rule 8, CPC presupposes that each one of the numerous persons by himself has a right of suit. If a person himself has no such

right to sue, he cannot be permitted to sue on behalf of others who have right but, the distinction has to be maintained between cases where the

individual puts forward a right which he has acquired as a member of a community and cases where the right of the community is put forward in the

suit. If it is the former, the individual is not debarred from maintaining the suit in his own right in respect of a wrong done to him even though the act

complained of may also be injurious to some other persons having the same right. If it is the later, the procedure under Order 1, Rule 8, CPC has

to be followed and without doing so, no relief could be granted to the individual concerned.

Learned Counsel for the respondents invited my attention to the decision of the Privy Council in AIR 1930 232 (Privy Council) , where Sri

Lancelot Sanderson observed that Order 1, Rule 8, contains provisions which enable the Court to grant the permission therein mentioned in a case

which comes within the scope of the rule. On the facts of that case, the Privy Council held that the plaintiff in that suit had no necessity to have

recourse to the rule. Apart from the observation referred to above, there is nothing in that decision which helps the respondents in this case.

The next decision relied upon is that of the Privy Council in AIR 1933 183 (Privy Council) . In that case it was held that the decision in a

former suit will not operate as Res Judicata in a subsequent suit filed under Order 1, Rule 8, CPC unless the formalities prescribed by the rule were

complied with in the former suit. The only exception to the same was pointed out to be a case where the former suit having been litigated Bona

Fide on behalf of the plaintiff and Others with a common right, the omission to comply with the rule had been inadvertent, and no injury therefrom

was sustained by the plaintiff in the second suit. On the facts of the case, it was held that the former suit was filed without the permission of the

Court and it was not instituted or conducted as a representative suit and therefore, no question of Res Judicata arose in the second suit. The

observation of the Privy Council on which learned Counsel places reliance is as follows:

...It is an enabling rule of convenience prescribing the conditions upon which such persons when not made parties to a suit may still be bound by

the proceedings therein. For the section to apply the absent persons must be numerous; they must have the same interest in the suit which, so far as

it is representative, must be brought or prosecuted with the permission of the Court. On such permission being given it becomes the imperative

duty of the Court to direct notice to be given to the absent parties in such of the ways prescribed as the Court in each case may require; while

liberty is reserved to any represented person to apply to be made a party to the suit.

I am unable to understand as to how the aforesaid observation helps the learned Counsel for the respondents.

The next decision that is relied upon is that of the Calcutta High Court in Taraprasanna Ganguly and Others Vs. Naresh Chandra Chakrabarty

and Others, . The question which arose before the Division Bench of the Calcutta High Court in that case was whether a decree obtained against

the managing committee of an unincorporated association, viz., a school, with a direction that the members of the managing committee were not

personally liable could be construed to be a decree against them in their representative capacity so as to bind the school even after a change in the

personnel of the managing committee after the decree. It was held on a construction of the decree that it was passed against the members of the

managing committee in their representative capacity and as such it could be executed against the subsequent committee. It was held by the Bench

that the provision of Order 1, Rule 8, CPC did not have any application to that case as all the members of the managing committee at the date of

the suit were sued and that the managing committee stood in law for the school and the decree against them was binding on the school. That

decision cannot apply to the facts of the present case.

Learned Counsel relies upon the decision of the Patna High Court in Ramghulam Khatik and Others Vs. Ramkhelawan Ram and Another, ,

wherein a single Judge of the Court held that Order 1, Rule 8, CPC is an enabling section entitling one party to represent many having a common

cause of action, but it does not force one to represent many if his action is maintainable without the joinder of other persons. That case related to

the rights of the public to use a certain well and a right of way over some land appurtenant to the well. The suit was instituted without complying

with the provisions of Order 1, Rule 8, CPC and the plaintiffs asserted their rights to the use of the well and the right of way. The learned Judge

held that the suit was maintainable and the plaintiffs were entitled to get a decree on proof of their rights. The learned Judge observed as follows:

There is no doubt with regard to the facts of this case inspite of the loose pleadings, and it is quite clear that the plaintiff is one of the limited

members who enjoys the use of a certain well. The user of that well has been obstructed by the action of the defendants, and the short question is

whether an action in those circumstances would lie at the instance of the plaintiff alone. Order 1, Rule 8, Civil P.C., has nothing to do with the

matter at all. 0. 1, Rule 8, as has been pointed out by a number of decisions, is an enabling section which entitles one party to represent many who

have a common cause of action; but it does not force one to represent many if his action is maintainable without the joinder of the other persons.

In fact, the learned Judge has himself referred to the types of cases where an action by an individual will not lie. After referring to the decision of

the Privy Council in AIR 1925 36 (Privy Council) , and some other decisions of the Bombay High Court and the Calcutta High Court, the learned

Judge observes thus:

... In my Judgment the law in India is precisely the same in this regard as it is in England and it does not depend on the technical question of

whether in the circumstances of the case an indictment could be maintained. Technical objections of that kind do not obtain in India. But the main

principle upon which this question is to be discussed and upon which the whole matter rests is that where all members of the public have suffered

inconvenience or damage, an action by an individual will not lie excepting as indicated by Section 91, Civil P.C.

Far from supporting the contentions of learned Counsel for the respondents this decision of the Patna High Court can be made use by the

defendants in this case.

Learned Counsel placed strong reliance on the decision of a Full Bench of Lahore High Court in Masrid Shahid Ganj v. Shromani Gurdwara

Purbandak Committee, Amritsar AIR 1938 Lahore 369. The Full Bench took the view that the omission to follow the procedure under Order 1,

Rule 8, CPC was only a technical irregularity which caused no prejudice to the concerned parties. That decision in effect follows the decision of

the Privy Council in Kumaravelu Chettiar v. Ramaswami Ayyar 65 M.L.J. 87 : ILR Mad. 657, already referred to. That turned on the facts of that

case and will not have any applicability to the case on hand.

Learned Counsel for the respondents draws my attention to the decision of the Calcutta Bench in Prafulla Kumar Roy and Others Vs. Sm.

Bibhabati Roy and Others, . That was a case where a suit was filed for removal of an alleged encroachment made by the District Board, Nadia,

upon a public thorough fare in front of the plaintiff''s premises. The plaintiff alleged that his rights as a rate-payer and as a member of the public

were infringed by the encroachment by the District Board which deprived him of the user of the full width of the public road. Though the

encroachment was found by the Subordinate Judge, he dismissed the suit on the ground that it was not maintainable at the instance of the plaintiff

without proof of special damage. The Subordinate Judge further expressed his opinion that the proper course for the plaintiff was to bring a

representative suit in conformity with the provisions of Order 1, Rule 8, Code of Civil Procedure, thus obviating the necessity of proving special

damage. Though the decree was affirmed by the Bench on appeal. B.K. Mukherjea, J., who was a member of the Bench disagreed with the view

of the Subordinate judge that if a suit is filed under the provisions of Order 1, Rule 8, Code of Civil Procedure, there would be no necessity to

prove special damage. His Lordship observed that if it is necessary to prove special damage in a suit by private individuals, the necessity is not

obviated by bringing the suit under Order 1, Rule 8, Code of Civil Procedure. While dealing with that aspect of the matter, the learned Judge

observes that Order 1, Rule 8, CPC is a purely enabling section entitling under certain circumstances some of the interested persons to bring a suit

on behalf of all and that it does not force one to represent many if his action is maintainable without the joinder of those persons. The said

observations made in that case will not take the respondents far.

Learned Counsel also made reference to the Full Bench decision of this Court in Kodia (Sounder and Anr. v. Velandi Gounder and Ors.

(1955)1 M.L.J. 247 : ILR 1955 Mad. 339 : AIR 1955 Mad. 281, wherein the executability of a decree obtained in a representative suit filed

under Order 1, Rule 8, CPC against persons who are not Eo Nomine parties to the suit was considered. The Full Bench answered the question in

the negative and held that a decree obtained in a representative suit cannot be executed personally against persons who were not Eo Nomine

parties to the same. The Full Bench made some general observations with regard to the object of the rule in the following terms:

The object for which this provision is enacted is really to facilitate the decision of questions in which a large body of persons are interested without

recourse to the ordinary procedure. In cases where the common right or interest of a community or members of an association or large sections is

involved there will be insuperable practical difficulty in the institution of suits under the ordinary procedure, where each individual has to maintain an

action by a separate suit. To avoid numerous suits being filed for decision of a common question, Order 1, Rule 8, has come to be enacted. The

nature of the claim whether it is a suit for a declaration of a right, or an injunction or an action for money on contract or on tort-is not very material

in considering whether a suit could be filed under the simplified procedure of Order 1, Rule 8. But, as already observed, it is the existence of a

sufficient community of interest among the persons on whose behalf or against whom the suit is instituted that should be the governing factor in

deciding as to whether the procedure provided under Order 1, Rule 8, could properly be adopted or not.

These general observations will not help the respondents in the present case. On the other hand, they make it clear that the object of the rule is to

avoid numerous suits being filed for the same relief.

The last of the decisions relied upon by learned Counsel for the respondents is that of the Andhra Pradesh High Court in B. Venkayya v. L.

Narasayya AIR 1957 A.P. 975, wherein Viswanatha Sastri, J., held that a suit by a villager for a declaration of his easementary right to a way over

the lands of the defendants and for a mandatory injunction directing the defendants to remove the obstruction put up by them could be maintained

De Hors the provision of Order 1, Rule 8, Code of Civil Procedure. The learned Judge held that the injury alleged in the case was one which was

individual to the plaintiff and he could bring a suit for the removal of the obstruction and for an injunction restraining the defendants from repeating it

and the fact that others might have suffered a similar injury and might have joined the plaintiff in a representative suit with the sanction of the Court

under Order 1, Rule 8, CPC did not stand in the way of the plaintiff himself instituting a suit for redressing the wrong. While holding so, the learned

Judge observed that Order 1, Rule 8 was merely permissive and unless the plaintiff has an individual right of his own to vindicate, the mere grant of

permission by the Court under Order 1, Rule 8, CPC will not clothe him with a right of suit. I am afraid that this decision cannot help the

respondents.

It is no doubt true that the plaintiffs have alleged in the plaint in more than one place that they are the chosen representatives of the two sections

of the community. But, there is absolutely no record produced in the case in support of the said claim. Even in the deposition of the first plaintiff,

who is the only witness examined on the side of the plaintiffs, there is nothing to show as to when and how the plaintiffs wore chosen by the

members of the community to be their representatives. Even though the first plaintiff asserts in his deposition that there are accounts for the temple

and the community, he has not chosen to produce the same before Court to prove that he was authorised to represent the community in the

management of the temple. Nor has he produced any record to show that he has been authorised by the community to institute the present suit.

Learned Counsel for the appellants invites my attention to the decision of Ratnam, J., in H.R. & C.E. Rep. By Its Commissioner, Madras-34

v. N. Ramakrishna Pillai and Ors. 99 L.W. 295, wherein the relief of declaration that the temple is a private denominational trust for the benefit of

the plaintiff and the members of the Nair Community was refused on the ground that the suit was instituted by the plaintiff in his individual capacity

and not in a representative capacity. That case arose out of a suit filed u/s 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act

for setting aside an order passed by the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, Tirunelveli II and

confirmed by the Commissioner, Hindu Religious and Charitable Endowments, Madras declaring that Chembake Koothan Kandan Sastha temple

in Sasthamangalam, Kalkulam Village, Kanyakumari District was a public temple. The trial Court granted the reliefs prayed for by the plaintiff. But,

on appeal, Ratnam, J. deleted the declaration of the denominational character of the temple from the decree while maintaining the decree relating,

to the setting aside of the order passed by the Commissioner. While dealing with the question of the denominational character of the temple, the

learned Judge observed as follows:

A reading of the plaint clearly makes out that the complaint voiced therein is in relation to the character of the temple. No doubt, it is stated in

paragraph 1 of the plaint that the ancestors of the plaintiff founded the Sastha temple for the benefit of their family as well as the members of their

community. Relief (a) in the plaint also refers to the declaration of rights as a private denominational trust. However, the cause of action for the suit

is stated to be the passing of the order by the Commissioner on appeal on 21st September, 1977 and the receipt thereof on 27th November,

1977. Obviously therefore, even according to the plaintiff, he was aggrieved by the order passed by the Commissioner affirming the order of the

Deputy Commissioner holding that the temple in question is a public temple. It has also to be remembered that the proceedings originated out of an

application u/s 63(a) of the Act where the power of Deputy Commissioner is confined to a decision on the question whether an institution is a

religious institution. No power is conferred u/s 63 on the Deputy Commissioner to go into the question whether the temple is a denominational one

or not. That there is no such power is also laid down in the decision in R. China Boyan and Others Vs. The Commissioner for Hindu Religious and

Charitable Endowments and Another, , relied on by the learned Counsel for the contesting respondents. Therefore, the adjudication of the Deputy

Commissioner on an application u/s 63(a) of the Act cannot be read as one relating to the rights of the Nair Community as a religious

denomination. u/s 69 of the Act a right of appeal to the Commissioner is conferred on person aggrieved by an order of the Deputy Commissioner.

u/s 70(l) of the Act, any party aggrieved by an order of the Commissioner, is enabled to institute a suit against that order in a Civil Court. In this

case, Neelakanta Pillai was impleaded as a party to the proceedings in O.A. No. 7 of 1975 only in his individual capacity and the plaintiff in O.S.

No. 18 of 1978, Sub Court, Padmanabhapuram was also not impleaded in a representative capacity on behalf of the religious denomination. Thus,

taking into account the manner in which the dispute had originated under the relevant statutory provisions referred to earlier, it seems to me that the

agitation of rights of a religious denomination could not have been done at all within the scope of a petition u/s 63(a) of the Act, or the appeal

therefrom or even in a suit thereafter u/s 70 of the Act. There fore, the question of determination of rights of a religious denomination cannot arise

at all. In view of this, it is not necessary to consider the question whether a common faith among the members of the Nair community had been

established to enable them to claim the benefits as a religious denomination. Those rights, if any, have to be agitated and adjudicated in other

appropriate proceedings and not here and that matter is left open.

The principle enunciated by Ratnam, J., in the aforesaid decision will clearly apply to the present case. I respectfully adopt the said principle

and hold that the suit from out of which these second appeals arise is not maintainable inasmuch as the plaintiffs have failed to follow the procedure

prescribed in Order 1, Rule 8, Code of Civil Procedure.

I have to refer to the contention urged by learned Counsel for the respondents that the objection as to the maintainability of the suit for want of

compliance with the provisions of Order 1, Rule 8, CPC was not taken specifically in the written statement and that there was no issue regarding

the same in the trial Court. Though there is no specific issue framed by the trial Court. I find that the matter has been argued before the trial Judge

and it has been dealt with in paragraph 21 of his judgment. He has given a categorical finding that the suit is not maintainable as the community

which claims the relief is not before the Court. The objection under Order 1, Rule 8, CPC has also been considered by the learned appellate

Judge, though he comes to a different conclusion from that of the trial Judge. It is too late in the day to shut out the said objection on the ground

that there was no specific pleading in the written statement. As pointed out earlier, Rule 8 of Order 1, CPC constitutes a glaring exception to the

general rule and if it is not strictly complied with, it may result in a flagrant departure from the salutary practice of not proceeding with an

adjudication in the absence of the parties affected thereby. The foundation of Order 1, Rule 8, CPC lies in a principle which transcends the

personal or parochial nature of the combatants who are arrayed as parties to the suit. It affects the rights of the persons not present before the

Court. Hence, a duty is cast on the Court itself to follow meticulously the procedure prescribed by Order 1, Rule 8, CPC and it is immaterial

whether the defendants raised the objection in the written statement or not. I do not see any substance in the objection of learned Counsel for the

respondents that the trial Court ought not to have considered the matter in the absence of a pleading and an issue. Hence, the suit has to be

dismissed on that ground.

I will now proceed to consider the question whether Senguntha Mudaliars of Tharamangalam form a religious denomination within the meaning

of Article 26 of the Constitution of India. Before referring to the evidence available on record with reference to this question. 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 paragraph 26 of its judgment framed the

following question which proves that the real controversy has not been understood by it:

The question, therefore, is whether it is a private temple, that too a denominational temple or a public temple? If it is latter, as argued by the

defendants, the Act is applicable. In the instant case that position of whether it is a public temple at all is the main question.

The above extract from the judgment of the trial Court illustrates the misconception prevailing among many of the members of the subordinate

judiciary.

The lower appellate Court framed point No.2 for determination as follows:

Whether the suit temple is denominational temple exclusively belonging to Senguntha Mudaliar community of Tharamangalam?

Here again, the two independent questions whether the Senguntha Mudaliar community of Tharamangalam is a religious denomination and whether

the suit temple belongs exclusively to that community have been telescoped into one which proves that even he learned Second Additional District

Judge, Salem did not have a correct idea of the legal position. It is seen in paragraph 16 of his judgment that he refers to the argument of learned

Counsel for the plaintiffs to the effect that they had never disputed the fact that the temple was a religious temple, but that their grievance was that it

was managed and administered by the Senguntha Mudaliars of Tharamangalam for several decades and, therefore, the authorities of Hindu

Religious and Charitable Endowments had no right to interfere with the administration of the temple by the community. This again shows that the

counsel for the plaintiffs who appeared before the learned Additional District Judge was under the impression that the only basic relevant factor to

be taken into account was the ownership of the temple by the community. It is no doubt true that an argument had been advanced before the

learned Additional District Judge that the community of Senguntha Mudaliars of Tharamangalam are worshipping a peculiar idol known by the

peculiar name Kannanoor Mariamman which was a clear indication to show that they had common faith in the said idol. Inspite of the fact that the

learned Additional District Judge refers to the definition of religious denomination found in the decision of the Supreme Court in The Commissioner,

Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., , the learned Judge did not consider the issue in

the proper perspective. of course, he cannot be blamed therefore when it is seen that some reported decisions of this Court create an impression

that proof of establishment and maintenance of temples by a community or a section thereof would be sufficient to support a finding that such

temples are denominational temples.

It is needless to point out that the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, or any of its predecessors did not use

or define the term ''Denominational Temple'' as such. Section 6(20) of the Act of 1959 defines a ''temple'' as a place by 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 any

section thereof, as a place of public religious worship. Section 107 provides that ""Nothing contained in this Act shall, save as otherwise provided in

Section 106 and in Clause (2) of Article 25 of the Constitution, be deemed to confer any power or impose any duty in contravention of the rights

conferred on any religious denomination or any section thereof by Article 26 of the Constitution"". Section 106 provides for removal of

discrimination in the distribution of prasadams and theerthams in any religious institution on grounds only of caste, sex, place of birth or any of

them. Section 51 of the Act provides that in making appointments of trustees u/s 47 or Section 49, the Commissioner or the Area Committee, as

the case may be, shall have due regard to the claims of persons belonging to the religious denomination for whose benefit the institution concerned

is chiefly intended or maintained"". It is seen that Section 107 deals with the rights of any religious denomination or any section thereof as conferred

by Article 26 of the Constitution which means that the section relates to religious institutions established and maintained by a religious denomination

or any section thereof. But, Section 51 of the Act would apply even to cases where the religious institutions were not established or maintained by

the religious denomination or section thereof sent to such religious institutions which are intended or maintained for the benefit of persons belonging

to any religious denomination. Apart from Sections 51 and 107, there is no reference in the Act to a religious denomination. If the members of a

religious denomination claim that the religious institution in question has been established and maintained by them, their rights are governed by

Article 26 of the Constitution of India and the same are left untouched by the Tamil Nadu Hindu Religious and Charitable Endowments Act on

account of Section 107 thereof. Hence, the first question to be considered invariably in every case in which a temple is claimed to be a

denominational temple is whether that community is a religious denomination or any Section thereof. Though there is no definition of the term

''religious denomination'' either in the Act or in the Constitution of India, it has been judicially interpreted in unmistakable terms by the Supreme

Court of India in the famous The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.,

. Mukherjee, J. observed as follows:

As regards Article 26, the first question is, what is the precise meaning or connotation of the expression ""religious denomination"" and whether a

Math could come within this expression. The word ""denomination"" has been defined in the Oxford Dictionary to mean ""a collection of individuals

classed together under the same name; a religious sector or body Having a common faith and organisation and designated by a destructive name"".

It is well known that the practice of setting up Maths as centres of theological teaching was started by Shri Sankaracharya and was followed by

various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of

the Hindu religion that we find in India at the present day.

Each one of such sects or sub-sects can certainly be called a religious denomination, as it is designated by a destinctive name, in many cases it is

the name of the founder, and has a common faith and common spiritual organization. The followers of Ramanuja, who are known by the name of

Shri Vaishnabas, undoubtedly constituted a religious denomination; and so do the followers of Madhwacharya and other religious teachers. It is a

fact well established by tradition that the Udipi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these

Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of the Sivalli Brahmins who

constitute a section of the followers of Madhwacharya. As Article 26 contemplates not merely a religious denomination but also a section thereof,

the Math or the spiritual fraternity represented by it can legitimately come within the purview of this Article.

While the decision referred to above was rendered with reference to a Mutt, the question arose before the Supreme Court with reference to a

temple in Sri Venkataramana Devaru and Others Vs. The State of Mysore and Others, . Venkatarama Ayyar, J., dealing with the question

whether the temple dedicated to Sri Venkataramana in the village of Mannampady, was a denominational temple, referred to the relevant aspects

of the evidence which would help the Court to conclude that the temple in question is a denominational one in paragraph 15 of the Judgment, which

reads thus:

The next question is whether the suit temple is a denominational institution. Both the Courts below have concurrently held that at the inception the

temple was founded for the benefit of Gowda Saraswath Brahmins; but the Subordinate Judge held that as in course of time public endowments

came to be made to the temple and all classes of Hindus were taking part freely in worship therein it might be presumed that they did so as a

matter of right, and that, therefore, the temple must he held to have become dedicated to the Hindu public generally. The learned Judge of the

Hindu Court, however, came to a different conclusion. They followed the decision in Indian Metal and Metallurgical Corporation Vs. Industrial

Tribunal, Madras and Another, , and held that the temple was a denominational one. The learned Solicitor-General attacks the correctness of this

finding on two grounds. He firstly contends that even though the temple might have been dedicated to the Gowda Saraswath Brahmins, that would

make it only a communal and not a denominational institution, unless it was established that there were religious tenets and practices special to the

community and that had not been done. Now, the facts found are that the members of this community migrated from Gowda Desa first to the Goa

region and then to the South, that they carried with them their idols, and that when they were first settled in Moolky, a temple was founded and

these idols were installed therein. We are therefore concerned with the Gowda Saraswath Brahmins not as a section of a community but as a sect

associated with the foundation and maintenance of the Sri Venkataramana Temple, in other words, not as a mere denomination, but as a religious

denomination. From the evidence of P.W. 1, it appears that the Gowda Saraswath Brahmins have three Gurus, that those in Moolky Petah are

followers of the head of the Kashi Mutt, and that performs some of the Important ceremonies in the temple. Ex. A is a document of the year 1826-

That shows that the head of the Kashi Mutt settled the disputes among the Archakas, and that they agreed to do the puja under his orders. The

uncontradicted evidence of P.W. 1 also shows that during certain religious ceremonies, persons other than Gowda Saraswath Brahmins have been

wholly excluded. This evidence leads irresistibly to the conclusion that the temple is a denominational one, as contended for by the appellants.

The Supreme Court had occasion to reiterate its view on the interpretation of the words ""religious denomination"" in Acharya Jagdishwaranand

Avadhuta and Others Vs. Commissioner of Police, Calcutta and Another, . The question which arose for consideration in that case was whether

Ananda Marga could be accepted as a religious denomination. While answering the question in the affirmative, the Court made a reference to the

test laid down by Mukherjee, J. in The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur

Mutt., referred to earlier and observed as follows:

This test has been followed in The Durgah Committee, Ajmer and Another Vs. Syed Hussain Ali and Others, : In the majority judgment in S.P.

Mittal v. Union of India : [1983]1SCR729 reference to this aspect has also been made and it has been stated:

The words ''religious denomination'' in Article 26 of the Constitution must take their colour from the word ''religion'' and if this be so, the

expression ''religious denomination'' must also satisfy three conditions:

(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.

In. view of the clear pronouncement made by the Supreme Court in the aforesaid case laying down three conditions to be satisfied by a

community to fall within the expression ''religious denomination'', it is unnecessary for me to deal with the various decisions of this Court cited by

learned Counsel for the respondents. It is enough if I give a reference to the citations. They are:

(1) Muthiah Asari v. Madasami Asari 1965 78 L.W. 288, (2) R. Chinaboyan and Ors. v. The Commissioner For Hindu Religious and Charitable

Endowments, Madras and Anr. (1975) 2 M.L.J. 295, (3) V. Balakrishnan and Ors. v. The Assistant Commissioner, H.R. and C.E., (Admn.)

Department, Tirunelveli and Ors. 1978 T.L.N.J. 359, (4) Madurai Sourashtra Sabha Represented By Its Honorary Secretary T.D. Rajagopalier v.

The Commissioner, Hindu Religious and Charitable Endowments, (Administration Department) Nungambakkam, Madras (1971)84 L.W. 86 and

(5) A. Palaniandi Pallai Vs. Commissioner, Hindu Religious and Charitable Endowments, .

Learned Counsel for the respondents submits that if the three conditions laid down by the Supreme Court in S.P. Mittal''s case :

[1983]1SCR729 and reiterated in Acharya Jagdishwaranand Avadhuta and Others Vs. Commissioner of Police, Calcutta and Another, are to be

satisfied strictly, then some of the communities referred to in the decisions of this Court cited by him would not be religious denominations, but they

have been held to be so by this Court. It is the contention of learned Counsel for the respondents that the scope of the definition of ''religious

denomination'' has been widened by the decisions of this Court cited by him and the Senguntha Mudaliar community of Tharamangalam would,

therefore, be a religious denomination as per the definition culled out from the decisions of this Court. In other words, learned Counsel submits that

if the communities involved in the aforesaid decisions of this Court can be said to be religious, community of Tharamangalam should automatically

be treated as a religious denomination. I am unable to agree with this contention of learned Counsel for the respondents. As far as I am able to see

the decisions of this Court cited by him turned on the facts of those cases and in every case there is a finding of fact that the community involved

therein was proved to be a religious denomination. It is not within my province to probe further and find out whether the conditions laid down by

the Supreme Court were satisfied by the evidence in each of those cases.

There are two decisions of this Court not referred to by either of the learned Counsel, but in which the relevant test has been correctly pointed

out and applied. In K.V. Vaidyanatha Sastrigal v. K.S. Ramaswami Iyer and Ors. (1972) T.L.N.J. 104, Sadasivam, J., observed as follows:

Wherein the question arises as to whether or not a temple has been dedicated to a particular sect, the performance of the worship, of the idol in

accordance with the rites of the sect for whose benefit it was held might be treated as evidence of dedication. There was no evidence to show that

the Chozhia Brahmins of Kadayanallur worshipped Neelamaninathar as their family Deity, or that the suit temple was originally installed to

propagate the tenets of their religion.

Again in Kuppuswami Chetti and Ors. v. The Commr. H.R. and C.E. (1972) T.L.N.J. 443, Ramaprasada Rao, J., held that the sect called the

Beri Chetty community was a religious denomination in as much as the members of the community were followers of Sri Abhinava Dharma

Sivacharya Math which had peculiar concepts in the matter of religion. In any event, the position is made clear by the latest pronouncements of the

Supreme Court in S.P. Mittal v. Union of India : [1983]1SCR729 and Acharya Jagdishwaranand Avadhuta and Others Vs. Commissioner of

Police, Calcutta and Another, .

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 chord 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. Though he asserts in the cross-examination that

there is no person in Tharamangalam who does not belong either to Chinna Katchi or Periya Katchi, there was no such averment in the plaint to

that effect. He is not able to explain the absence of such an averment in the plaint. One significant fact is brought out in the admission of P.W. 1 that

the person who performs the pujas in the temple is a Gounder and not a Senguntha Mudaliar. Though the pujari is said to be a paid employee of

the community, it is a matter of admission that before the present pujari his father was doing pujas. P.W. 1 pleads ignorance as to who was doing

puja prior to 1966. Though he states that accounts are available for the periods both prior to and after 1966, no such accounts have been

produced. He admits that there is a street in Tharamangalam for Karkatha Vellalars. Obviously, his assertion that there is nobody in the village who

does not belong either to Chinna Katchi or Priya Katchi is false. In another place, P.W. 1 admits that 90% of the Mudaliars of Tharamangalam

belong to Chinna Katchi and Periya Katchi. That proves that here are other Mudaliars not belonging to either Chinna Katchi or Periya Katchi

D.W. l who was appointed as a trustee by the Department, also belongs to Senguntha Mudaliar community. According to him, the persons who

carried the deity in possession are Padayachi Gounders and Karkatha Vellalars. According to him, members of all communities will take part in

festivals and will do ""fire walking"". According to him, Gounders were doing pujas in the temple for 30 or 40 years, and that contributions for

festivals are made by members of all communities. Even if it can be urged that the evidence of D.W. 1 having been rejected by the learned

appellate Judge as thoroughly unsatisfactory and that I should not place any reliance thereon, I do not find any necessity to rely upon the oral

evidence of D.W. 1 in the present case. In my opinion, neither the oral evidence of P.W. 1 nor the documentary evidence produced by the

plaintiffs would be sufficient to prove that the three conditions laid down by the Supreme Court are satisfied in the present case. in fact, there is not

an iota of evidence to sustain the claim that the members of Senguntha Mudaliar community have a common religious faith. The ingenious argument

advanced by learned Counsel for the plaintiffs before the lower appellate Court is that the common faith peculiar to Senguntha Mudaliars of

Tharamangalam is evident from their worshipping a peculiar idol known by the peculiar name Kannanoor Mariamman. I do not find any peculiarity

in worshipping the idol of Mariamman which is a common deity to several sections of the Hindu community. There is no evidence on record as to

how the idol got the name Kannanoor Mariamman. In all probability the idol might have been brought from a place called Kannanoor or the deity

of Mariamman in Kannanoor is so famous that the people in Tharamangalam named the idol which they worshipped after that deity. It is very

common in these days to see the idols of Sabarimalai Ayyappan being installed in every city, town and village in this country. In the absence of any

evidence that there are religious tenets and practices special to the community, the plaintiff cannot succeed in proving that the community of

Senguntha Mudaliars of Tharamangalam is a religious denomination. There is also no evidence to show that the members of other communities

have been excluded during certain religious ceremonies performed by Senguntha Mudaliars. On the other hand, there is an admission on the part of

P.W. 1 that the idol of Kannanoor Mariamman is worshipped by members of other communities also, though he adds that they would do so with

permission of the plaintiffs.

It is well-known that communities were formed in this city on account of various reasons under several circumstances. It is not as if religion is

the only common bound for the members of the communities found in this country. Instances are not wanting where communities were formed on

the basis of profession or business or calling. It is seen from the Tamil Lexicon published by University of Madras that ""Sengunthars"" were persons

of Kaikkola caste; the spearmen of ancient times. The word ""Senguntham"" means ""a red pear"" that is a spear which became red on account of the

blood of the enemies. History reveals that Kaikkolars were able warriors serving as personal bodyguards of ancient Chola Kings. The Tamil

Lexicon describes ""Kaikkolars"" as members of a caste, now mostly weavers found in all Tamil Districts. As regards the term ""Mudaliar"" it is

described as a caste title to a sect of Vellalars, i.e., Sengunthars and a sect of Jains in Tanjore. The Tamil word ""Mudali"" is defined as ""Head"" or

Chief"". It is a matter of common knowledge that in the present days Senguntha Mudaliar have adopted weaving as their calling. It is quite

probable that the ancient warrior community chose to settle in different places pursuing different professions when they could not find any use for

their proficiency in martial arts. It is unnecessary for me to consider as to why the plaintiffs'' community came to be called as Senguntha Mudaliar

community. Suffice it to say that the evidence on the record does not make out that the plaintiffs belong to a religious denomination or that the

Senguntha Mudaliar community of Tharamangalam is a religious denomination, in order to get the benefits of Article 26 of the Constitution, of

India.

The last question that remains to be considered is whether the suit temple has been proved to be established and maintained by the Senguntha

Mudaliar community of Tharamangalam. The earliest document filed in support of the claim of the plaintiffs is Ex. A-21 which is an unregistered

agreement between Chinna Katchi and Periya Katchi dated 9th August, 1933. The agreement provides for turn management in the alternate years

by the two factions. Significantly, the agreement does not state that the temple was established by the community. The agreement relates to two

temples, a Matam, a Nandhavanam and a tamarind thope. The rights of the two factions flowing under the agreement were upheld in a litigation in

the year 1958. When the members of the Periya Katchi contended that the two Katchis had sunk their differences and ceased to exist after 1957,

the Court rejected the same and upheld the claim of the Chinna ''Katchi that the agreement of 1933 governed the right of management of the

institution mentioned therein. That decision was upheld by this Court in S.A. 877 of 1960 as evident from Ex. A-3. Apart from the civil

proceedings referred to above and the agreement of 1933, the plaintiffs have produced some electricity bills ranging from 1960 to 1983 to show

that they have been continuously in management of the temple. The case of the plaintiffs that they have been continuously in management of the

temple from 1933 onwards has been proved beyond doubt. But, there is no acceptable'' evidence to prove that the temple was founded by the

members of the community. Learned Counsel for the respondents invites this Court to draw an inference that the temple was established by the

members of the community from the fact that the management and administration have been continuously with the members of the community for

over 50 years. The temple is claimed to be 200 years old by the plaintiffs. The first plaintiff is only 56 years old and no other elderly person has

been examined to speak about any fact relating to a prior period. It is not possible to draw an inference of the establishment of the temple by the

community from the fact that the members of the community have been managing the temple for about 50 years.

For the purpose of invoking Article 26 of the Constitution of India, the plaintiffs have got to prove two facts, (1) that they established the

temple and (2) they maintain the temple. In fact, learned Counsel for the respondents himself referred to the decision of the Supreme Court in S.

Azeez Basha and Another Vs. Union of India (UOI), , where the Supreme Court held that the words ""establish and maintain"" in Article 26(a) of

the Constitution of India must be read conjunctively and it is only those institutions which a religious denomination establishes which it can claim to

maintain and that the right under Clause (a) of Article 26 will only arise where the institution is established by a religious denomination. In view of

the same, the burden is on the plaintiffs to prove that the temple in question was established by the community of Senguntha Mudaliars of

Tharamangalam and it is not sufficient if it is proved that the temple was being maintained by the community. I am of the opinion that the entire

evidence let in by the plaintiffs in the present case will only go to the extent of proving that the temple in question was being maintained by the

members of Senguntha Mudaliar of Tharamangalam community and it will not prove that the temple was established by them.

In the result, the second appeals are allowed and the judgment and decree of the learned Second Additional District judge of Salem are set

aside. The suit O.S. No. 19 of 1984 on the file of the District Munsif, Salem is dismissed. However, in the circumstances of the case, there will be

no order as to costs.