The Commissioner, Hindu Religious and Charitable Endowments vs Vaithinatha Gurukkal and Others

M. M. Ismail, J.—The first defendant in O.S. No. 11 of 1966 on the file of the Court of the Subordinate Judge of Mayuram is the appellant

herein. The suit related to a temple known as Sri Panchavatiswaraswami Temple, situate in Ananthandavapuram in Thanjavur district. Exhibit B-I is

an extract of the Inam Statement of one Appa Gurukkal dated 16th December, 1861 made before the Inam Commissioner. That statement shows

that properties were endowed for Sri Panchavatiswaraswami Temple and that Appa Gurukkal was the person in possession, of the properties and

was also the Archaka of the temple. Exhibit A-I is an extract for the Inam Register of Anathandavapuram village. That extract shows, that Appa

Gurukkal was the worshipper in possession and the inam itself was confirmed and continued so long as the worship was regularly rendered. Exhibit

B-2 is the copy of the inam title deed No. 633 granted to the manager for the time being of the pagoda of Sri Panchavatiswaraswami. Exhibit B-3

dated 18th August, 1884, is a lease chit executed in favour of Appa Gurukkal with reference to the property granted in inam to Sri

Panchavatiswaraswami temple. Exhibits A-2 to A-6 are kist receipts for the period 1936 to 1964 for payment of kist for the lands in question by

the successors of Appa Gurukkal. At this stage it must be mentioned that Appa Gurukkal himself had no issue and after him one Annu Gurukkal

was in charge of the poojas in the temple. Annu Gurukkal is the great grandfather of the two plaintiffs in the suit. After Annu Gurukkal one Swami

Gurukkal succeeded him. The father of the plaintiffs was one Sambasiva Gurukkal who succeeded Swami Gurukkal. Sambasiva Gurukkal had

two wives: the first plaintiff is the son through his first wife, while the second plaintiff is the son through his second wife. The first plaintiff herein filed

a petition, Exhibit B-16, u/s 57(b) of the Madras Hindu Religious and Charitable Endowments Act XIX of 1951, before the Deputy

Commissioner, Hindu Religious and Charitable Endowments, Thanjavur. That petition was numbered as O.A. No. 128 of 1957. In that petition

the first plaintiff prayed for a declaration to the effect that he was holding his office in the temple of Sri Panchavatiswaraswami, Anathandavapuram,

Mayuram Taluk, as a hereditary trustee, and he contended that the temple itself was a private temple, that it was constructed by his forefathers and

that they were performing poojas in the temple hereditarily as well as managing the lands of an extent of 7 acres 88 cents which were obtained for

the benefit of the temple by his forefathers as inam. To that petition no respondents were originally impleaded. The father of the first plaintiff,

Sambasiva Gurukkal, as well as the second plaintiff, objected to the declaration prayed for by the first plaintiff, and they filed objection petitions

before the Deputy Commissioner.. Thereafter they, as well as the legal representatives of another brother of the first plaintiff, were impleaded as

respondents to the said petition. They put forward the contention that, so long as Sambasiva Gurukkal was alive, the first plaintiff was not entitled

to claim to function as a hereditary trustee of the temple and that consequently the declaration prayed for by the first plaintiff should not be granted.

They affirmed the stand taken by the first plaintiff that the trusteeship to the temple was hereditary, but their case was that, so long as the father was

alive, the first plaintiff could not claim, to be a trustee. They, however, prayed that, in the event of the first plaintiff being declared as a hereditary

trustee, they should also be declared as hereditary trustees along with, the first plaintiff. This petition filed by the first plaintiff came to be disposed

of by the Deputy Commissioner by his order dated 7th June, 1959, marked as Exhibit A-19 in these proceedings. He posed two questions for

consideration: (i) whether the office of trustee of the suit temple is hereditary; and (ii) whether the petitioner (first plaintiff) is entitled to get a

declaration as prayed for. He held that no hereditary right to the office had been proved to have vested in the first plaintiff''s family and that

consequently the claim to that office by succession by the first plaintiff could not be recognised. Against this order of the Deputy Commissioner the

first plaintiff preferred an appeal to the Commissioner and that appeal was dismissed by the Commissioner on 2nd July, 1960 under the original of

Exhibit A-20. No further steps were taken to challenge the correctness of this order made under the original of Exhibit A-20. However, there is

evidence to show that even after the dismissal of the petition of the first plaintiff, the officers of the Hindu Religious and Charitable Endowments

Department themselves treated the first plaintiff as well as his father as hereditary trustees of the temple, issued notices to them calling upon them

10 pay contribution payable under the previsions of the Act, collected the same from them and also issued receipts therefor. Between 1960 and

1964 nothing appears to have happened. However, under the original of Exhibit B-24 dated 2nd December, 1964, the Area Committee, Hindu

Religious and Charitable Endowments, Nagapattinam, appointed the second defendant herein as a trustee for the temple in question. By that time

Sambasiva Gurukkal himself was dead. It was under these circumstances that the two plaintiffs, who are step-brothers, filed an application before

the Deputy Commissioner, Hindu Religious and Charitable Endowments, u/s 63 (b) of the Madras Hindu Religious and Charitable Endowments

Act XXII of 1959, corresponding to Section 57 (b) of Act XIX of 10-51, for a declaration that they performed the functions as hereditary trustees

of the temple in question. This petition (O.A. No. 21 of 1964) was dismissed by the Deputy Commissioner on 31st August, 1954, under the

original of Exhibit A-22, holding that the decision in O.A. No. 128 of 1957 constituted res judicata with regard to the claim of the plaintiffs to

hereditary trusteeship of the temple in question. Against that order the plaintiffs preferred an appeal, A. No. 58 of 1964, on the file of the

Commissioner, Hindu Religious and Charitable Endowments, and that appeal was dismissed by the Commissioner on 19th October, 1965, as

evidenced by the original of Exhibit A-23. It was thereafter that, pursuant to the provisions of Section 70 of Act XXII of 1959, the present suit

was instituted by the plaintiffs for setting aside the orders of the Deputy Commissioner and the Commissioner referred to above.

The appellant herein, in the written statement, filed before the trial Court, contended that the plaintiffs were not the hereditary trustees of the

temple, and that apart from that fact, that question could not be agitated again in view of the finality of the orders in O.A. No. 128 of 1957 and the

appeal arising therefrom. The third respondent herein (the second defendant) filed an independent written statement putting forward the contention

that the plaintiffs and their forefathers were not trustees of the temple in question, that they were only poojaries of the temple, that it was the

villagers who had been in management of the temple and its properties, that the villagers had appointed trustees to the temple for that purpose, and

that lease deeds had been executed by the tenants with reference to the suit property in favour of one Sundarappier as Well as one Sundaresa

Iyer, who had been appointed as trustees of the temple by the villagers.

On the basis of these pleadings, the learned Subordinate Judge framed the following issues for trial:

Whether the plaintiffs are the hereditary trustees of the suit temple?

Whether the suit claim is barred by reason of the order of the Deputy Commissioner in O.A. No. 128 of 1957 and appeal therefrom?

To what relief are the plaintiffs entitled?

On a consideration of the oral and documentary evidence placed before him, the learned Subordinate Judge, by his judgment and decree dated

30th November, 1966, answered both issues 1 and 2 in favour of the plaintiffs and decreed the suit as prayed for, setting aside the orders of the

Deputy Commissioner and Commissioner, dated 31st August, 1964 and 19th. October, 1965 respectively. It is against this judgment and decree

that the present appeal has been preferred by the first defendant in the suit.

As in the trial Court, the two points that arise for consideration in this appeal are (i) whether plaintiffs 1 and 2 are the hereditary trustees of the

suit temple, and (ii) whether the suit claim is barred by reason of the order of the Deputy Commissioner in O.A. No. 128 of 1957 and the order of

the Commissioner in appeal therefrom?

Before proceeding to consider these two points separately, we may immediately mention that the judgment of the learned Subordinate Judge,

though long is rambling, and it is difficult to find out where he was referring to the arguments advanced before him and where he was recording his

own conclusions thereon. In view of this, we ourselves have gone through the entire materials placed before the Court and arrived at our own

independent conclusions on the controversy before the trial Court.

As far as the first point is concerned, we have already referred to Exhibits B-I, B-2, A-I and A-2 to A-6, and the conduct of the officers of the

Department itself in recognizing and dealing with the plaintiffs and their father as trustees of the temple, demanding contributions from them,

collecting the contributions and issuing receipts therefor. Having regard to the evidence afforded by Exhibits B- I, A-I, B-2 and A-2 to A-6, it

would follow that it was the plaintiffs and their forefathers who were in possession and management of the temple and its properties. However, the

learnt Counsel for the appellant brought to our notice that the trial Court has not considered certain material pieces of evidence, such as, Exhibits

B-7 to B-10, B-13, B-15 and B-23, showing that the villagers were managing the properties and appointing trustees in that behalf We are unable

to hold that any one of these documents establishes that the villagers did any act in the management of the temple and its properties. Exhibit B-7

dated 14th July, 1917 is a registered paguthi chit executed by one Rangaswami Padayachi, in favour of Sambasiva Iyer. In this document

Sambasiva Iyer, has been described as the agent of Sri Panchavatiswaraswami Temple. Exhibit B-8 is another registered rent deed executed by

one Srinivasa Pillai in favour of one Sundarappier, who is described as the trustee of the temple in question. Exhibit B-9, dated 21st January 1924

is yet another registered paguthi deed executed by one Kalayanarama Iyer in favour of Sundarappier described as the trustee of the temple in

March, 1925 is a certified copy of the lease deed executed by one Rathnaswami Padayachi in favour of trustee Sundarappier. Exhibit B-13, dated

28th December, 1930 is yet another registered rent deed executed by Rathna Padayachi in favour of Sundarappier. Exhibit B-15, dated 29th

May, 1946 is a list of jewels of the plaint temple countersigned by the Gurukkal. The only significance that Gurukkal. The only significance that was

claimed with reference to this document was that Sambasiva Gurukkal has not been described there as the trustee of the temple and that, if

Sambasiva Gurukkal, was the trustee of the temple there was no occasion for the preparation of this list Exhibit B-23 is the minutes book said to

relate to the plaint temple and its affairs, maintained by the villagers. We are not able to place any reliance whatever on any one of these documents

for more than one reason. In the first place, it was second defendant who put forward these documents in his written statement itself in support of

his case that the plaintiffs or their forefathers were not in management of the temple in question but notwithstanding this, the second defendant did

not go into the box to give evidence on behalf of himself or on behalf of the first defendant. Only of the defendants. The failure of the second

defendant to give evidence in support to the case put forward by him in the written statement was for obvious reasons. On 31st go into the box to

October, 1957 admittedly the second defendant had not been appointed as a the Inspector, Hindu Religious and Charitable Endowments,

Mayuram, and that statement has been marked as Exhibit B-4. In this statement he had categorically and clearly stated that it was the plaintiffs and

their father Sambasiva Gurukkal and their forefathers who were performing the poojas in the temple as well as functioning as trustees of the temple

and that at no point of time did the villagers have anything to do with the management of the temple and its properties. The stand taken by the

second defendant in his written statement was totally contrary to the statement made by him in Exhibit B-4 and it Was precisely for this reason that

the second defendant did not choose to go into the box to give evidence in support of his case put forward in his written statement. On the other

hand, one A. K. Narayanaswami Iyer, as already pointed out, has been examined as D.W. I He stated in his evidence that the villagers had

appointed Sundarappier, as trustee of the temple and that he was in management of the temple and its properties, receiving rents from the various

persons who as already referred to, had executed paguthi chits in his favour. However, he categorically admitted that he did not know whether any

receipts Were issued for the receipt of rents and that he did not know it personally. In one place he stated that Sundarappier, attended to the

affairs of the temple for a period of forty-five years and that he died in 1939. If so, Sundarappier should have been in management of the temple

and its properties even during the close of the nineteenth century, but there is no evidence whatever to show that Sundarappier had anything to do

with the temple and its properties, before Exhibit B-8 dated 8th November, 1921. He further admitted that in Exhibit B-23 there was no mention

of any person as being the trustee of the suit temple. The learned Subordinate Judge, who had occasion to watch this witness and notice his

demeanour has chosen not to place any reliance on his evidence. We entirely agree with this conclusion of the learned Subordinate Judge for the

simple reason that D.W. 1 has not proved, with reference to his personal knowledge, any of the transactions on which reliance has been placed,

and there is absolutely no evidence, independent of these documents, that Sundarappier or the villagers were in management of the temple and its

properties, were receiving the income from the temple properties and were applying such income in the performance of poojas and other festivals

connected With the temple in question. The result is that there is absolutely no evidence to show that the villagers had anything whatever to do with

the temple and its properties. On the other hand, the evidence adduced on the side of the plaintiffs is categorically to the effect that the plaintiffs and

their forefathers alone were in sole and exclusive management of the temple and its properties and that at no point of time did the villagers interfere

with such management. As a matter of fact, none of the documents on which reliance has been placed on behalf of the defendants was put to P.W.

1 and no questions were asked about it. To the general questions put to him, P.W. 1 replied that neither Sundarappier nor Sundaresa Iyer was

ever in management of the temple and its properties as trustee.

There is one other significant circumstance which would probabilise the case of the plaintiff and negative the case of the appellant. We have

already referred to the order of the Deputy Commissioner, dated 7th June, 1959 in O.A. No. 128 of 1957. In that order the Deputy

Commissioner himself has recorded a categorical finding that it was the first plaintiff and his father and their forefathers who had been in possession

of the temple and its properties. He has recorded in the course of his order:

No doubt, to the knowledge of the public, the Archakas have been in possession for over hundred years rendering pooja services. There have

been no other endowed properties for the temple as to suggest other acts of management to the public, and even assuming it implies management

to the exclusion of the public, it is not by a third party but by an office-holder which cannot prevail against the right of the public to partake in it

when they choose to do so being a public temple. The public interested themselves only in the worship and in giving donations for the deity.

These observations of the Deputy Commissioner himself clearly establish that nobody other than the first plaintiff and. his forefathers was in

possession and management of the temple and its properties, and the Deputy Commissioner rejected the case of the first plaintiff solely on the

ground that he and his ancestors were not recognized as trustees either by the Government or by any other authority.

7-A. A Bench of this Court had to consider the question whether there is anything illegal or improper in Archakas being trustees of small temples in

Muthuswami Gurukkal v. Aiyaswami Thevar (1964) 2 M.L.J. 660. The following head-note itself brings out the principle of the decision:

There is nothing illegal in hereditary trusteeship and pujariship being combined in the same person, especially in the case of small temples where

there has been no interference or control by any of the villagers of the place. In the case of small village temples, where the temple property is of

insignificant value and the income is hardly sufficient even to meet the routine expenses of the temple, if the Archaka or Poojari is left in

management of the temple lands and the affairs of the temple without any interference by any of the villagers for a long number of years, it has to be

presumed that with the consent and acquiescence of the worshippers of the village the pujari is the trustee, as well. In such a case it must be held

that the poojari managing the lands and affairs has made out his right to hereditary trusteeship and the interests of the temple are not likely to suffer,

when the person concerned admits that the lands are temple lands and has never set up any rights to them as his own property.

In this case, as we already pointed out, there is no dispute whatever that at all stages the plaintiff''s were the hereditary poojaries of the temple.

As already pointed out again, the evidence clearly establishes that it was those hereditary poojaries who were in management of the temple and its

properties and that at no stage did the villagers interfere with such management. Under these circumstances, we are clearly of the opinion that the

principle laid down in the above decision applies to the facts of this case and that consequently it is established that the plaintiffs are the hereditary

poojaries and trustees of the suit temple.

This takes us to the second point posed for consideration, namely, whether the order passed by the Deputy Commissioner in O.A. No. 128 of

1957 (Exhibit A-19) is a bar to the plaintiffs herein to agitate their claim to hereditary trusteeship to the temple in question. The learned Counsel for

the appellant contends that the Act provided for a right of suit against the order of the Commissioner in appeal, that no such suit having been filed

against the order of the Commissioner (Exhibit A-20), that order has become final and that therefore the plaintiffs were not entitled to reo on and

reagitate the question by filing a fresh application before the Deputy Commissioner u/s 63(b) of Madras Act XXII of 1959 in O.A. No. 21 of

1964. The learned Subordinate Judge considered this contention and rejected it. We are clearly of the opinion that the conclusion of the learned

Subordinate Judge in this behalf is correct. Section 57(b) of Act XIX of 1951 enacted :

Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to inquire into and decide the following

disputes and matters:

. . .

(b) whether a trustee holds or held office as a hereditary trustee.

The scope of this provision came up for consideration by this Court in Sastri Ammal v. Pravalavarna Naicker (1955) 2 M.L.J. 612 : (1955) 68

L.W. 777 : ILR (1957) Mad. 631 : AIR 1956 Mad. 146 where Rajagopalan, J., held:

If the dispute is whether the office of trustee of a given religious institution is. hereditary, it would certainly come within the scope of Section 57 (b).

In my opinion that is all that Section 57 (b) provides for. A dispute between the claimants to succeed to an office, which it is admitted on all hands

is hereditary, is, in my opinion not within the scope of Section 57 (b) of Act XIX of 1951.

This view was shared by Veer-swami, J. (as he then was) in Chinnathambi Moopan v. Mamundi Moopan (1966) M.L.J. 361. We ourselves

have approved of the correctness of the view of Rajagopalan, J., in our judgment in (Venugopala Chettiar v. The Commissioner, H. R. & C. E.

Madras) Appeal No. 479 of 1967, dated 27th August, 1973. Consequently it is well-settled that the scope of the jurisdiction of the Deputy

Commissioner u/s 57 (b) of Act XIX of 1951 was to decide whether the trusteeship in relation to a religious institution Was hereditary or not and

not to decide whether a particular person was entitled to function as a hereditary trustee at a particular point of time with reference to a temple the

hereditary nature of the trusteeship of which had been admitted. It is against the background of this legal position that we have to consider the

effect of the order of the Deputy Commissioner in O.A. No. 128 of 1957 and the order of the Commissioner in appeal arising therefrom, as

evidenced by Exhibits A-19 and A-20. A copy of the petition filed by the first plaintiff in O.A. No. 128 of 1957 has been marked in this case as

Exhibit B-16. In that petition the first plaintiff put forward the categorical contention that he and his forefathers had been functioning not only as

poojaries of the temple but also as hereditary trustees of the temple. It was only on the basis of this contention that he sought for a recognition of

his hereditary status and rights at the hands of the Deputy Commissioner and for a declaration that he was holding his office in the temple of Sri

Panchavatiswaraswami, Anathandavapuram, as a hereditary trustee. As we pointed out already, he had not impleaded any persons as respondents

in that petition, though subsequently, his father Sambasiva Gurukkal, his step-brother Subramania Gurukkal, and the legal representatives of

another deceased brother, Kailasa Gurukkal, were impleaded as respondents. In the counter filed by those parties, they also asserted along with

the first plaintiff that trusteeship to the temple in question was hereditary, and the only contention they put forward was that, so long as Sambasiva

Gurukkal, the father was alive, the first plaintiff was not entitled to claim to function as a trustee. Alternatively they contended that, if, for any

reason, the Deputy Commissioner was to recognize the first plaintiff also as a hereditary trustee even during the lifetime of Sambasiva Gurukkal, the

father, then the others also must be recognized as hereditary trustees. The result was that before the Deputy Commissioner in O.A. No. 128 of

1957 there was no controversy or dispute about the hereditary character of the trusteeship to the temple. All the persons who had been made

parties to O.A. No. 128 of 1957 unanimously claimed that trusteeship to the temple in question was hereditary. Consequently the only matter in

controversy Was whether the first plaintiff herein could be recognized as a hereditary trustee even during the lifetime of his father, Sambasiva

Gurukkal. Therefore the Deputy Commissioner was not called upon to decide whether the trusteeship of the temple was hereditary or not; what he

was called upon to decide was Whether during the lifetime of Sambasiva Gurukkal the first plaintiff could be recognized as a hereditary trustee or

not. On the first point, if there was controversy, the Deputy Commissioner would have jurisdiction to decide, and on the second point he had no

jurisdiction at all. Under these circumstances, we are clearly of the opinion that the Deputy Commissioner should have dismissed. O.A. No. 128 of

1957 on the ground that he had no jurisdiction to decide as to who functioned as hereditary trustee at a particular point of time, where trusteeship

of the temple was admittedly hereditary. Having regard to the scope of the controversy between the parties in O.A. No. 128 of 1957 there was

neither occasion nor necessity for the Deputy Commissioner to go into the question whether the trusteeship of the temple in Question was

hereditary or not. Unfortunately, as we already pointed out, the Deputy Commissioner posed for himself the first question for consideration,

whether trusteeship of the temple was hereditary or not, even though that question did not at all arise for consideration before him. It is against this

background that we have to consider whether that order and the order of the Commissioner on appeal therefrom are a bar to the filing of a fresh

petition u/s 63 (b) of Act XXII of 1959 by the plaintiffs herein. It is admitted that there were no provisions in Act XIX of 1951 to the effect that

the order of the Commissioner on appeal shall be final, if no suit was filed to set aside the same, as contemplated by the Act. Consequently, the

question will be a general one, namely, whether the order of the Deputy Commissioner in O.A. No. 128 of 1957, and of the Commissioner in

appeal, would constitute res judicata so as to prevent the plaintiffs herein from reagitating the same question under the provisions of Section 63(b)

of Act XXII of 1959. The principles of res judicata in relation to suits have been enunciated in Section 11 of the Code of Civil Procedure.

However, it he provisions contained in that section are not exhaustive, and consequently it he general principles of res judicata would apply to

other proceedings even though Section 11 of the CPC would not in terms apply. For the purpose of the application of the general principles of res

judicata a particular matter should have been directly and substantially in issue in former proceedings so as to bar the reconsideration of the same

matter in subsequent proceedings. As we pointed out already, in this case the question whether the trusteeship of the temple was hereditary or not

was not in issue between the parties in O.A. No. 128 of 1957, and consequently the Deputy Commissioner had no jurisdiction whatever to decide

a question which was not raised before him. Therefore, if the Deputy Commissioner had rendered a finding on that question which was not in

controversy or dispute before him, his finding cannot be said to be final or conclusive so as to bar the agitation of the same question in a properly

framed proceedings instituted subsequently. In this view, We are clearly of the opinion that the order of the Deputy Commissioner in O.A. No.

128 of 1957 and the order of the Commissioner on appeal arising therefrom did not bar the application filed by the plaintiffs herein before the

Deputy Commissioner u/s 63 (b) of Act XXII of 1959.

The result is that there are no merits; in the appeal and it is accordingly dismissed with costs.

While decreeing the suit instituted by the plaintiffs herein, the learned Subordinate Judge has not awarded costs in favour of the plaintiffs.

Questioning this, the plaintiffs have preferred a memorandum of cross-objections. In view of the conclusion we have come to on the merits of the

controversy, once the suit was decreed, the learned Subordinate Judge, except for reasons to be recorded, to the contrary, ought to have awarded

costs in favour of the plaintiffs. The learned Subordinate Judge himself has not given any reasons whatever in his judgment for not awarding costs in

favour of the plaintiffs. However, as we have held that the plaintiffs were entitled to succeed, we are of the opinion that the learned Subordinate

Judge should have awarded costs in favour of the plaintiffs. The memorandum of cross-objections is therefore allowed, the result of which is that

the suit is decreed with costs throughout. But there will be no order as to costs in the memorandum of cross-objections.