The Assistant Commissioner, The Hindu Religious and Charitable Endowments (Admn.) Dept. vs Swaminatha Iyer and Others

Kader, J.—The appeal is against the judgment and decree of the Court of the Subordinate Judge of Tirunelveli in O.S.No. 66 of 1977. The

second defendant therein is the appellant.

This is a representative action by the two plaintiffs on their behalf and on behalf of the other members of the Brahmin community of

Naranammalpuram in Tirunelveli Taluk for a declaration that Sri Karpaga Vinayagar temple of Naranammalpuram is a denominational institution

belonging to the Brahmin community of Naranammalpuram consisting of sixty families and for a consequential injunction restraining the defendants

from in any manner interfering with the management of the said temple and its properties by the plaintiffs. The plaintiffs are the nominated

representatives of the Brahmin community of Naranammalpuram consisting of sixty families nominated to manage and administer the affairs of Sri

Karpaga Vinayagar temple of the village. The said temple was founded by the ancestors of the Brahmin community of the said village over a

century ago for the spiritual welfare of the said Brahmin community and the members of the community are the worshippers. For the religious

services and other functions connected with the temple, the schedule properties have been endowed and as the income from the properties is

hardly sufficient to meet the expenses, the members of the Brahmin community of the village are contributing liberally. The plaintiffs learnt that the

first defendant has been appointed as the fit person under the Hindu Religious and Charitable Endowments Act of 1959 in respect of Sri

Venkateswara Perumal temple and Sri Viswanathaswamy and Rudrapa-theeswarar temples of Naranammalpuram after the removal of the

trustees. The above said suit temples have nothing to do with Sri Karpaga Vinayagar temple which belongs to the Brahmin community. The first

defendant is falsely claiming as the fit person of Sri Karpaga Vinayagar temple also and is trying to interfere with the possession and management

of the temple and its properties. Hence the suit in a representative capacity on behalf of the members of the Brahmin community of

Naranammalpuram for the aforesaid reliefs.

The first defendant raised the following contentions: He is the fit person appointed not only for Sri Venkateswara Perumal temple and

Viswanathaswamy and Rudrapatheeswarar temples but also for the plaint Sri Karpaga Vinayagar temple. The said Karpaga Vinayagar temple is

not exclusively owned by the Brahmin community as claimed in the plaint. One Sankararaman was the trustee and he has handed over all the

properties including the suit property to the first defendant who has been appointed as the fit person. The plaint Sri Karpaga Vinayagar temple is

only a sub-temple of the other two temples and all these temples have been Managed by a single trustee. The Brahmin community as such did not

elect or appoint any trustee. The temple is owned by all the Villagers.

The second defendant-Assistant Commissioner, Hindu Religious and Charitable Endowments, who was subsequently impleaded at the instance

of the first defendant has filed a separate written statement. He contended that Sri Karpaga Vinayagar temple is only a sub-temple of Sri

Viswanathaswamy and a Rudrapatheeswarar and Venkatesa Perumal temples. There is only one archaka and single Madappalli. The archakar is

paid jointly on behalf of these temples. The trustees of all the temples have given a statement surrendering possession. The first defendant is the fit

person. The temple is not denominational in character and the plaintiffs are not entitled to the relief claimed. It was also contented that the suit

against the second defendant was bad for want of notice u/s 80, C.P.C.

On the above pleadings, the following issues were framed for trial:

Whether the plaintiffs are the duly nominated persons to manage and administer the affairs of the temples as alleged by them?

Whether the suit temple is a religious denominational one belonging to the Brahmin community residing in Naranammalpuram?

Whether the suit is maintainable without the issue of notice u/s 80, C.P.C?

Whether the plaintiffs have any cause of action to file the suit?

Whether the plaintiffs are entitled to permanent injunction?

To what relief, if any, the plaintiffs are entitled?

The learned Subordinate Judge found all the issues in favour of the plaintiffs and decreed the suit as prayed for with costs. Hence this appeal by

the second defendant.

The points that are canvassed before me and which arise for consideration in this appeal are:

Whether Sri Karpaga Vinayagar temple of Naranammalpuram is a denominational institution?

Whether the suit is bad for want of notice u/s 80, C.P.C. to the second defendant?

The case of the plaintiffs who have filed this action on behalf of themselves and on behalf of the members of the Brahmin community consisting

of sixty families of Naranammalpuram village in Tirunelveli Taluk is that Sri Karpaga Vinayagar temple of Naranammalpuram was founded by the

ancestors of the Brahmin community a century ago for the spiritual welfare of the Brahmin community residing at Naranammalpuram and the

members of the Brahmin community are the worshipers in Sri Karpaga Vinayagar temple, that the administration of the said temple is vested in the

Brahmin community of Naranammalpuram and it is, therefore, a denominational temple entitled to the protection of Article 26 of the Constitution of

India. The paramount question, which arises for consideration is, whether the Brahmin community of Naranammalpuram is a religious denomination

within the meaning of Article 26 of the Constitution of India.

An impression had gained ground in some legal circles that every Hindu Community is a religious denomination and a temple owned, maintained

and managed by the said community is a denominational institution within the meaning of Article 26 of the Constitution of India. This is far from

correct. Such an institution may be communal in character but not denominational. In the well-known The Commissioner, Hindu Religious

Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., the Supreme Court observed this:

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 sect or body having a common faith and organisation and designated by a distinctive 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 different sects and sub-sects of the Hindu

religion that we find in India at the present day. Each one of such sect or sub-sect can certainly be called a religious denomination as it is

designated by a distinctive name, in-many cases it is the name of the founder, - and has a common faith and common spiritual organisation. The

followers of Sri Ramanuja, who are known by the name Shri Vaishnavas undoubtedly constitute a religious denomination and so do the followers

of Madhwacharya and other religious teachers.

In S.P. Mittal v. Union Of India and Ors. : [1983]1SCR729 : the majority of the learned Judges of the Supreme Court laid down the following

three tests for finding out whether a particular body of persons is a religious denomination:

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:

It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to the spiritual well-being, i.e. a

common faith;

Common organisation; and

Designation by a distinctive name.

In a still more recent decision in Acharya Jagdishwaranand Avadhuta and Others Vs. Commissioner of Police, Calcutta and Another, , the

Supreme Court approved and applied the aforesaid statement of law in S.P Mittal''s case and pointed out:

Ananda Marga appears to satisfy all the three conditions viz., it is a collection of individuals who have a system of beliefs which they regard as

conducive to their spiritual well being; they have a common organisation and the collection of these individuals has a distinctive name. Ananda

Marga, therefore, can be appropriately treated as a ''religious denomination.

In a very recent decision of this Court in The Assistant Commissioner H.R.& C.E., Salem v. Nattamai K.S. Ellappa Mudaliar and others 100

L.W. 240, Srinivasan, J., had occasion to consider whether Senguntha Mudaliars of Taramangalam in Salem District form a religious denomination

within the meaning of Article 26 of the Constitution. The learned Judge after reviewing all the above decisions of the Supreme Court pointed out:

As seen from the decision of the Supreme Court the word ''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 Taramangalam cannot claim to be a ''religious denomination.

I respectfully agree with the aforesaid observation of Srinivasan, J.

Let us now consider in the light of these decisions whether the Brahmin community of Naranammalpuram constitutes a religious denomination

within the ambit of Article 26 of the Constitution. The second plaintiff has been examined as P.W.1 and he is the only witness for the plaintiffs. He

avers that Sri Karpaga Vinayagar temple was founded by the ancestors of the Brahmin community of Naranammalpuram and that the

administration of the said temple has always vested with the Brahmin community. There is not even a whisper of an averment either in the plaint or

in the evidence that the members of the Brahmin community of Naranammalpuram have a common faith, i.e., a system of beliefs or doctrines

peculiar to themselves other than those that are common to the Hindus in general or that they have a common organisation or that they are

designated by a distinctive name. None of the three tests laid down by the Supreme Court in S.P. Mittal''s case, : [1983]1SCR729 , referred to

above are satisfied. It is, therefore, futile to claim that the members of the Brahmin community of Naranammalpuram constitute a ''religious

denomination''. It follows that Sri Karpaga Vinayagar temple is not a denominational institution, even assuming without admitting, that the said

temple has been founded, maintained and managed by the Brahmin community of Naranammalpuram.

Even as regards the claim of the plaintiffs that Sri Karpaga Vinayagar temple was established by the Brahmin community and that the

administration of the temple has always vested in the said community, there is no acceptable evidence to sustain this claim. As already pointed out,

P.W.1, the second plaintiff is the only witness. He is just 31 years old and he cannot have any personal knowledge about the origin of the temple

or about its administration 10 or 15 years ago. No elderly member of the Brahmin community has been examined. No accounts are produced to

show that the Brahmin community has been administering the temple all along. In fact, P.W.1 has himself admitted that there are no records to

show that the temple belonged to the Brahmin community or that it was under the administrative control of the Brahmin community all along. In the

circumstances of the case, it is impossible to hold that Sri Karpaga Vinayagar temple was founded by the Brahmin community of

Naranammalpuram and that the administration of the temple vested always in the said community.

On a consideration of all the facts and circumstances, I hold that Sri Karpaga Vinayagar temple is not a denominational institution and the

plaintiffs are not entitled to the declaration sought for. Point 1 is found against the plaintiffs/ respondents.

Point No. 2. The second defendant is the Assistant Commissioner, Hindu Religious and Charitable Endowments, who has appointed the first

defendant as the fit person of Sri Karpaga Vinayagar temple. It is contended by the second defendant that the suit is bad for want of notice to him

u/s 80, C.P.C. It is contended on behalf of the plaintiffs and this contention has found favour with the Court below, that since the second defendant

has been impleaded subsequently at the instance of the first defendant no notice u/s 80, C.P.C. is necessary. Reliance is sought to be placed on a

decision reported in (1974) 2 M.L.J. 294. But there is no reported decision at this page and evidently the learned Subordinate Judge has not

looked into this volume. In Kilaparti Appalanarasamma Vs. Commissioner, Municipal Council and Another, , a Bench of this Court has held that if

the Government which were subsequently impleaded as defendant No. 2 were a necessary party to the suit, that is, necessary in order that the

reliefs claimed by the plaintiff might be effective, undoubtedly the suit could not proceed and the failure to comply with the requirements of Section

80, C.P.C., would be fatal. The plaintiffs in this case have sought for a declaration that the suit Sri Karpaga Vinayagar temple is a denominational

institution and such a declaration obtained against the first defendant who is the fit person appointed by the second defendant for the said temple is

of no consequence. The relief claimed by the plaintiff will be effective only if the second defendant-Assistant Commissioner is a party to the suit.

The second defendant is, therefore, a necessary party and the suit is bad for want of notice u/s 80, C.P.C. This point is also found against the

plaintiffs/respondents.

In the result, the appeal is allowed, the judgment and decree of the court below are set aside and the suit is dismissed, with costs, throughout.