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Judgment
G. Rajasuria, J.—This second appeal is focused by the Defendants, animadverting upon the judgment and decree dated 22.01.2004 passed
by the learned Principal District Judge, Vellore in A.S. No. 94 of 2003 confirming the judgment and decree dated 25.04.2003 passed by the
learned Principal District Munsif, Vellore in O.S. No. 1017 of 1996 (transferred from Sub Court Vellore O.S. No. 108 of 1988)
The parties are referred to here under according to their litigate status and ranking before the trial Court.
Heard both sides.
The epitome and the long and short of the relevant facts, absolutely necessary and germane for the disposal of this Second Appeal would run
thus:
a. The Plaintiff, filed the suit seeking the following reliefs:
-to declare that the suit A Schedule temple is a *denominational one [ *subsequently amended as ""family temple"" as per order in I.A. No. 706 of
1998 dated 23.02.1999] exclusively meant for the family of Periamunusami Chetti and Chinnamunusami Chetti and for consequential injunction
restraining the Defendants from interfering with the Plaintiff''s peaceful possession and enjoyment and management of the same.
-to declare that the heirs of Periamunusami Chetti and Chinnamunusami Chetti are entitled to be in possession of the suit ""B"" Schedule property for
the purpose of doing ""DHARMA KAINGARYAM"" as per the registered partition deed dated 16.06.1999 and for consequential injunction
restraining the Defendants from interfering with the peaceful possession and enjoyment of the same by the Plaintiff''s family.
-to direct the Defendants to pay the Plaintiff the costs of the suit.
(extracted as such)
b. Written statement was filed by the Defendant concerned, resisting the suit.
c. Whereupon issues were framed. The Plaintiff examined himself as P.W.1 along with P. Ws.2 and 3 and marked Exs.A1 to A57. On the side of
the Defendants, the fifth Defendant examined herself as D.W1 along with D. Ws.2 and 3 and marked Exs.B1 to B27.
c. Ultimately the trial court decreed the suit in toto. As against which, appeal was filed by the Defendants 1 to 3 for nothing but to be dismissed
confirming the judgment and decree passed by the trial court.
d. Challenging and impugning the judgments and decrees of both the courts below, this second appeal has been filed on various grounds inter alia
to the effect that the courts below were wrong in holding that the suit property belongs to the private temple and the Government is having nothing
to do with that and accordingly, declaratory relief and injunction were also granted. As such, the Appellants suggested the following substantial
questions of law.
Whether the courts below had erred in holding that the suit was maintainable when the institution of the suit is specifically barred under the
provision of Section 108 of the H.R. & C.E. Act?
Whether the courts below had erred in holding that the burden to prove that the temple was a public temple was not on the Defendant when it is
well settled law so far as temples in Tamil Nadu are concerned, there is a presumption that all the temples are public temple?
Whether the courts below had erred in discarding the evidence in the Inam Register as to the nature of the grant ""Dharma Dhayam"" in the
present case?
Whether the courts below had erred in not appreciating the fact that the Plaintiff had miserably failed to prove that the entry to the temple by the
public was not by right but by way of license or permission from the Plaintiff/Respondent?
Whether the courts below had erred in not appreciating the fact that the Respondent not having challenged the order of the Appellant dated
11.3.88 appointing a fit person for the administration of the temple is estopped in claiming that the temple is a private temple?
(extracted as such)
However, my learned predecessor while admitting the second appeal, based on the available materials on record, framed the following substantial
question of law:
Whether the courts below had erred in holding that the suit was maintainable on the ground that the institution of the suit is specifically not (sic)
barred under the provision of Section 108 of the H.R.& C.E. Act?
A few more facts absolutely necessary for the disposal of this second appeal would run thus:
In respect of a part of the temple property, its tenants viz., G. Subramani and G. Ramajayam (died) filed a separate suit in O.S. No. 439 of 1987
before the Sub Court, Vellore, which was subsequently transferred to the Principal District Munsif Court, Vellore and re-numbered as O.S. No.
1016 of 1996, seeking the following reliefs:
-to grant permanent injunction restraining the Defendants from interfering with the peaceful possession and enjoyment of the suit property by the
Plaintiff as lessees except under the due process of law.
-to direct the Defendants to pay the Plaintiffs the costs of the suit.
(extracted as such)
In fact, that suit and the suit filed by Nataraja Chettiar were taken up together and disposed of by a common judgment and as against which, two
separate appeals were filed and a common judgment was passed by the Appellate court concerned. However, the appellants 1 to 3, who are the
defendants 1 to 3 in O.S.No.108 of 1988 before the Sub Court, Vellore, which was subsequently transferred to the Principal District Munsif
Court, Vellore and re-numbered as O.S.No.1017 of 1996, preferred this second appeal and no second appeal has been filed as against the
judgments and decrees passed in favour of the tenants of the temple property in O.S.No.1016 of 1996.
The gist and kernel of the arguments of the learned senior counsel for the Respondent/Plaintiff would run thus:
The courts below appropriately and appositely applied the law and granted the relief of declaration and injunction warranting no interference in the
second appeal.
However, when this Court raised a point as to whether the civil court has got jurisdiction to entertain the prayer relating to the declaration of the
Plaintiff''s status and that the suit property belonged to the private temple, the learned senior counsel for the Plaintiff in all fairness, would submit
that if at all the prayer is one for declaring the temple as a denominational temple, the civil court will have jurisdiction by virtue of the well settled
proposition of law as found laid down in various precedents; however, the civil court is having no jurisdiction to entertain the relief of declaration
that the particular temple is a private temple because Section 63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 [ Act
22 of 1959] [hereinafter referred to as the ""Act""] clearly contemplates that findings relating to such matters could be given only by the authority
under the said Act.
The learned Additional Advocate General appearing on behalf of the Appellants/Defendants would stress upon the fact that both the courts
below were not justified in declaring that the said temple is a private temple and as per Section 63 of the Act, only the authority concerned under
the Act has got jurisdiction and ultimately after exhausting the remedies contemplated under the Act only, a statutory suit could be filed.
I could see considerable force in the submissions made by the learned Additional Advocate General and it so happened that earlier the plaint
was presented as though the said temple involved in the suit is a denominational temple; whereupon the plaint was numbered and processed;
subsequently, the plaint was got amended by replacing the term ''denominational temple"" by the term ""family temple"".
I am of the considered view that simply because the plaint was got amended by getting deleted the term ""denominational temple and by
inserting the term ""family temple"", the civil court cannot be held to be having jurisdiction over the same.
At this juncture, I would like to extract here u/s 63 of the Act.
[Joint Commissioner or Deputy Commissioner] to decide certain disputes and matters -
Subject to the rights of suit or appeal hereinafter provided, [the Joint Commissioner or the Deputy Commissioner, as the case may be], shall have
power to inquire into and decide the following disputes and matters:
a] whether an institution is a religious institution;
b] whether a trustee holds or held office as a hereditary trustee; c] whether any property or money is a religious endowment;
d] whether any property or money is a specific endowment;
e] whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any religious institution; and what the
established usage of a religious institution is in regard to any other matter;
f] whether any institution or endowment is wholly or partly of a religious or secular character;and whether any property or money has been given
wholly or partly for religious or secular uses; and
g] where any property or money has been given for the support of an institution which is partly of a religious and partly of a secular character, or
the performance of any service or charity connected with such an institution or the performance of a charity which is partly of a religious and partly
of a secular character or where any property or money given is appropriated partly to religious and partly to secular uses, as to what portion of
such property or money shall be allocated to religious uses.
By way of interpreting the aforesaid provision of law, the learned Additional Advocate General cited the decision of the Division Bench of this
Court reported in Inspector/Fit Person, H.R. and C.E. Vs. Amirthammal, Deputy Commissioner, H.R. and C.E., Asst. Commissioner, H.R. and
C.E. and M. Sundaram Chettiar, . Certain excerpts from it would run thus:
In Thiruvengada Varadachariar alias R. Varadachari and Others Vs. Srinivasa Iyengar and Others, , it was held:
The form of relief is not the sole criterion to decide the question of maintainability of the suit. One of the main issues that arises for consideration is
whether the Plaintiffs and Defendants 3 and 4 are hereditary trustees. For deciding that issue, express provision is made in Section 63 of the Act,
and the trial court rightly held that the suit is barred by Section 108 of the Act.
And again in Sri Venkataramanaswamy Deity v. Vadugammal (1974) I MLJ 431, it was held, ""It is beyond dispute that matters which strictly
fell within the scope of Section 57 will have to be taken to the Deputy Commissioner and the procedure prescribed in the Act followed.... There is
ample authority for the proposition that the Civil Court can decide the suit particularly when the substantial relief is one that cannot be granted by
the Deputy Commissioner even though questions that arise incidentally may be within the jurisdiction of the Deputy Commissioner u/s 57 of the
Act....
Thus in special enactments, the jurisdiction of the special Tribunals under the Act is confined only to the purposes of the Acts... A relief which
cannot be granted by the Deputy Commissioner can be asked for in a Civil Court"".
In State of Madras Vs. Kunnakudi Melamatam and Another, the Supreme Court held thus:
Now one of the disputes in this suit is whether the institution is a religious institution within the meaning of Act XIX of 1951. Specific provision is
made in Sections57, 61 and 62 of the Act for determination of that dispute by the Deputy Commissioner, the Commissioner and eventually by a
suit instituted in a Court u/s 62. The present suit is not brought under or in conformity with Section 62 and consequently, in so far as the suit claims
the relief of injunction restraining the levy of contribution and audit fees under Act XIX of 1951, it is barred by Section 93 of the Act.
In Sri Vedagiri Lakshmi Narasimha Swami Temple Vs. Induru Pattabhirami Reddy, , the Supreme Court held, ""Section 93 of the Act does not
impose a total bar on the maintainability of a suit in a Civil Court. It states that a suit of the nature mentioned therein can be instituted only in
conformity with the provisions of the Act; that is to say, a suit or other legal proceeding in respect of matters not covered by the section can be
instituted in the ordinary way. It therefore imposes certain statutory restrictions on suits or other legal proceedings relating to matters mentioned
therein"".
In the present case, though there is a reference in the plaint to the suit property being a samadhi'' the relief asked is for a declaration that the
property is not a public temple. This is a dispute that falls u/s 63(a) of the H.R.& C.E. Act. It is not an incidental question that is asked to be
decided in the suit, but the only question. Therefore, this dispute ought to have been adjudicated by the authority under the Act and as pointed out
by the learned Special Government Pleader, the Act also provides for a detailed enquiry.
The suit must therefore, be dismissed as not maintainable. Since the question of maintainability is answered in favour of the Appellant, we are
not dealing with the merits of the case. It is open to the Respondents to approach the authorities for a decision in this regard who shall consider this
dispute afresh and decide the same in accordance with law.
It is explicitly clear that the said relief of declaration sought by the Plaintiff was untenable before the civil court and the learned senior counsel for
the Respondent/Plaintiff would try to canvass his point that it was only an incidental finding given by the trial court
In my considered opinion, once it is found that the civil court has got no jurisdiction to give any declaration relating to the alleged private status
of the temple, then the authority under the Act only could be held to be having the power of granting the said relief to the Plaintiff.
The learned Counsel on both sides cited the decision of this Court reported in R. China Boyan and Others Vs. The Commissioner for Hindu
Religious and Charitable Endowments and Another, . Certain excerpts from it would run thus:
Section 108 of the Act bars a suit or other legal proceedings in respect of the administration or management of a religious institution or any other
matter or dispute, for determining or deciding which provision is made in the Act, except under and in conformity with the provisions of the Act....
It is not necessary for the purpose of the present case to deal with those cases. Suffice it for the purpose of the present discussion to state that it is
a section of the public having a common faith and organization and designated by a distinctive name. Therefore, an institution established or
maintained by that section of the Hindu community, would be one that would be covered by Article 26 of the Constitution. The definition of
temple"" as seen already, would also include a place of public worship used as of right by a section of the Hindu community. But, on this reasoning
it could not be said that the Deputy Commissioner will have jurisdiction u/s 63(a) to decide whether the institution is a religious denominational
institution falling under Article 26 of the Constitution. The jurisdiction of the Deputy Commissioner under the section was to decide whether an
institution is a religious institution; but it does not confer any power on him to decide whether it exclusively belongs to a particular religious
denomination. This has been so held in a number of cases, the earliest of which is the one decided in Rao Sahib Dr. Ananda Baliga v. Srimath
Ananteswar Temple....
In the instant case also, there is no dispute that the suit temple is a religious institution within the meaning of that expression in the Act. But, what
was contended by the plaintiffs was that it exclusively belonged to the Boyar community of the five groups of villages. The suit was therefore clearly
maintainable....
A mere perusal of the judgment would display and demonstrate that in the said suit, this Court held that in a suit for declaration, the right to manage
and administer a temple and its properties is vested in a particular community was maintainable and the jurisdiction of the Deputy Commissioner u/s
63(a) of the Act was not available.
Absolutely, there is no quarrel over such a proposition. But here, the factual scenario is entirely different. The Plaintiff would claim that there
exists a family temple called Sri Papathiammal temple, which was allegedly built and maintained by their ancestors and the properties are dedicated
to it for performing Dharma kainkaryam etc. In such a case, it is quite obvious that the authority u/s 63 of the Act is competent to decide as to
whether the temple is a private family temple or a public one and whether the properties dedicated to it should be administered by the private
members/hereditary trustees, etc.
However, I could also see considerable force in the submission made by the learned senior counsel for the Plaintiff that inasmuch as the
authorities under the Act could not grant injunction, the Plaintiff did choose to approach the civil court seeking injunction. In such a case, I am of
the considered view that the suit itself should have been framed seeking only injunction so as to protect the physical possession of the Plaintiff
pending decision by the authorities concerned.
The learned senior counsel for the Plaintiff would agree to such a proposition and he would even pray that certain time limit may be granted so
as to enable the Plaintiff to file necessary application before the authority concerned invoking Section 63 of the Act.
However, the learned Additional Advocate General would submit that already a fit person was appointed to take over the administration of the
temple for which, on the Plaintiff''s side it was stated that in support of the suit filed by the temple, decree was granted in their favour and as against
which, the fit person himself preferred an appeal and that was dismissed. According to the learned senior counsel for the Plaintiff, the fit person as
of now, is not holding the administration relating to such properties and no second appeal also has been filed by the fit person as against such a
decree in favour of the tenants.
Be that as it may, at this juncture, I would like to point out that the authorities under the said Act, without strictly adhering to the procedure
contemplated under the Act, cannot interfere with the temple and the properties concerned. However, I make it clear that once the authority
invokes its power on the application filed by the Plaintiff, then it is for the authority to pass suitable orders as it might deem fit at the appropriate
stage and in appropriate manner adhering to the procedures contemplated under law untrammelled and uninfluenced by the judgment of this Court
and till then, the injunction order granted by the courts below, shall hold good.
In the said common judgment of the appellate court, the matter relating to the suit O.S. No. 439 of 1987, which was subsequently transferred
to the Principal District Munsif Court, Vellore and renumbered as O.S. No. 1016 of 1996 was also dealt with and the tenants of a part of the
temple property, contended therein that they are the lessees of the said temple and I am of the considered view that setting forth various averments
in the plaint, they obtained injunction from the trial court in respect of the survey No. 213/5 measuring an extent of 1.61 acres, which is one among
the suit properties in the suit O.S. No. 108 of 1988, which was subsequently transferred to the Principal District Munsif Court, Vellore and
numbered as O.S. No. 1017 of 1996. In such a case, ultimately the findings of the appropriate authority in the application to be filed by the Plaintiff
herein u/s 63 of the Act would have bearing on the injunction granted by the civil court in that other suit also.
Accordingly,the substantial question of law is answered to the effect that the Plaintiff was not justified in seeking a prayer for declaring the
status of the temple as that of a private temple before the civil court.
Three months'' time is granted to the Plaintiff to file necessary application before the authority concerned u/s 63 of the Act and seek
appropriate remedy.
With the above direction, this second appeal is disposed of. No costs. Consequently, the connected miscellaneous petitions are closed.