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Judgment
V. Kanagaraj, J.—This appeal suit is directed against the Judgment and Decree dated 2-7-1981, rendered in O.S. No. 633 of 1979 by the
Court of Subordinate Judge, Cuddalore, thereby decreeing the suit as prayed for, a suit filed by the respondent herein against the Commissioner,
H.R. & C.E.(A), Madras, thereby praying to declare that the plaintiff intitution is not a religious institution as defined under Tamil Nadu Hindu
Religious and Charitable Endowments Act, and further to set aside the order of the Commissioner, passed in A.P. No. 214 of 1977 dated 24-9-
1978.
Tracing the history of the case as projected by the respondent through the plaint in the said suit before the lower Court, it comes to be known
that the respondent had filed the suit on allegations such as that the great Saints Sri Bhagavandha Swamigal and Sri Dhayananda Swamigal who
were worshipeed with great devotion by Sri N. Deivasikamani, the present hereditary trustee''s paternal grandfather; that Sri Bhagavandhar
attained Nirvana on 18-12-1889 and Sri Dhayanandha on 25-6-1905 and their mortal remains were interred and Samadhies were constructed
therein by Deivasikamani and regular daily pooja were performed all these years, in addition to special Poojas on important days like Krithigai,
Amavasai, Pournami, Navarathri etc.; that on anniversary days when the Saints attained Nirvana, Guru Pooja was conducted on a grand scale;
that these two Samadhies are being administered ever since 1889 by the male descendants of the founder trustee, N. Deivasikamani and by the
hereditary trustee recognised by the Deputy Commissioner, H.R. and C.E. Trichy in O.A. No. 169 of 1976; that those saints have been
worshipped during their life time by all religious people and even after attaining Samadhies, they worshipped the Samadhies and received the Grace
of the Saints.
The further averments of the plaint are that originally there was only a Bali Peetams with no idols, but recently idols have been installed near the
Bali Peetams; that since the Samadhies are open for all religious people, they cannot be considered as a Hindu Religious institution; that the plaintiff
filed O.A.No. 167 of 1976 before the Deputy Commissioner H.R. and C.E. Trichy under Sections 63(a) and 63(b) of the Tamil Nadu Hindu
Religious and Charitable Endowments Act, (hereinafter referred to as ""the Act"") seeking an order to the effect that it is not a religious institution
under the Act and that the plaintiff is the hereditary trustee; that the Deputy Commissioner while recognising the plaintiff as a hereditary trustee held
that the institution is a religious institution; that on appeal filed before the Commissioner in A.P. No. 214 of 1977, he confirmed the order of the
Deputy Commissioner, Trichy and hence, the statutory suit was filed u/s 70 of the Act for the reliefs extracted supra.
The Defendant Commissioner H.R. and C.E. Madras, in his written statement filed before the trial Court, would submit that the presence of Bali
Peetams and the idols indicate the nature of the public temple, eventhough the origin was Samadhies; that the Hindus worshipped only the idols;
that though it was originally the Samadhies, latter it developed as a public temple; that he had rightly confirmed the order of the Deputy
Commissioner in declaring the plaintiff as the hereditary trustee but declining to grant other reliefs, declaring to the effect that the suit properties
were not the religious institutions; that the presence of the Bali Pee tarns and the idols of Hindu Gods clearly indicate that the institution is a public
religious institution; that the orders are lawful; that there had been no notice sent u/s 80 C.P.C. prior to filing of the suit and hence, on such grounds
would, ultimately, pray to dismiss the suit with costs.
The trial Court based on the above pleadings by parties has framed four issues namely, (i) whether the order of the defendant is liable to be set
aside for the reasons stated by the plaintiff? (ii) Whether the plaintiff is entitled to declaration prayed for? (iii) whether the suit is bad for want of
notice u/s 80 C.P.C? (iv) To what relief, if any, is the plaintiff entitled?, and has conducted a trial allowing parties to place on record their evidence.
During trial, the plaintiff would not only examine five witnesses for oral evidence including representative of the plaintiff institution in the suit as
P.W.1, would also mark 16 documents as Exs. A1 to A. 16, Ex.A1 dated 21-12-1970 is the certificate issued under the Societies Registration
Act, Ex.A.2 being the Memorandum of Association to the Mutts dated 21-12-1970, Ex.A.3 to Ex.A.9 are printed invitations on the birthdays of
the Saints for different years, Ex.A.10 is a book containing the history of the Saints, Ex.A.11 is the printed phamphlet, Ex.A.12 dated 22-1-1977
is the copy of the order in O.A. No. 169 of 1976, Ex. A.13 dated 24-4-1978 is the copy of the order in A.P. No. 214 of 1977, Ex.A.14 is a
cheque book, Ex.A. 15 is the copy of the appeal memo and Ex.A. 16 is the passbook of the Central Cooperative Bank Ltd., Cuddalore.
On the contrary, the evidence placed on record on the part of the defendant both oral and documentary is Nil.
The trial Court having traced the pleadings by parties and having framed the issues as aforementioned, and appreciating the evidence in the
manner required by law, and further citing different decisions rendered by this Court, would ultimately decree the suit as prayed for directing the
parties to bear their own costs. Aggrieved, the defendant/Commissioner, H.R. and C.E. therein has come forward to prefer the above suit on
grounds such as that the lower Court having found that the idols are installed in the building, should have dismissed the suit; that the lower Court
has failed to consider that the institution was no longer a mere Samadhi, but has developed as a temple by installations of Hindu idols and
performance of Poojas to them; that the lower Court failed to consider that public have been worshipping the institution besides attending the
festivals and contributing money to Poojas; that the lower Court has further failed to consider that the plaintiff had claimed two alternative remedies
which are contrary to each other before the appellant and hence the Judgment and decree passed by the lower Court becomes liable to be set
aside.
During arguments, both the learned counsel would lay emphasis on their respective pleadings in the suit, on facts. On the part of the learned
counsel appearing for appellant, he would particularly adhere to the grounds of appeal as traced supra. On the other hand, the learned counsel
appearing on behalf of the respondent would lay stress on the point that the Samadhies, Just on the simple reason certain idols have been
introduced, may not altogether become a religious institution as defined under the Act, since all religious people have worshipped mainly the
Samadhies of the Saints; that there is no proof of any public contributions received for the management of the affairs of the Samadhies of the Saints
or even for the conduct of festival; that the Deputy Commissioner in realisation of these facts should have declared that the suit properties are not
religious institutions or public temples as defined under the Act; that the trial Court having gone into the facts and circumstances, in the light of the
evidence placed on record, has arrived at appropriate conclusions answering all the issues in favour of the plaintiff. The learned counsel would also
cite two Judgments. The first one reported in Palanisamy Piliai v. The Commissioner, Hindu Religious and Charitable Endowments (Admn)
Department, Madras-34. 2. The Deputy Commissioner, H.R. and CE (A), Madras (1997)1 ML.W. 704 : 1997 AIHC 1403 wherein the Division
Bench of this Court has held that notice u/s 80 C.P.C. for a statutory suit to be filed u/s 70 of the H.R. and C.E. Act, is not necessary. The learned
counsel would also cite another judgment reported in Soundharathammal Vs. The Tiruchirapalli Mavattam Mahasuruli Alaya Bakthargal Madya
Sangam, wherein it is held by a single Judge of this court :
Before a temple or a shrine or other holy place can be accepted and recognised as a place of public religious worship there must be evidence of
dedication of the same for the benefit of the Hindu Community or a section thereof. The guidelines are that it should be a place of public worship,
there should be acceptable proof of dedication for the benefit of the Hindu Community or a section thereof and/or the worshippers have been using
as of right the religious institution as a place of public religious worship. The building of a Vinayakar Temple on one side of the Samadhi and the
consecration of a Vel on the other side in the instant case can only be considered adjuncts to the Samadhi and not factors which have the effect of
elevating the Samadhi to the category of a temple.
In consideration of the facts and circumstances as pleaded by parties, having regard to the materials placed on record and upon hearing the
learned counsel for both, the sum and substance of the case of the plaintiff could be put in a nutshell to the effect that Sri Bhagavandha Swamigal
and Sri Dhayanandha Swamigal who were great Saints worshipped with great devotion by his devotees particularly by one N. Deivasi-kamani, the
paternal grandfather of the representative of the plaintiff Madalayam, namely, U. Arunachalam; that on their mortal remains, buildings were put up
by the said Delvasikamani and performed regular Poojas and special Poojas on festive occasions, that in the due course, certain idols have also
been installed in the premises of the Samadhies and people of all religions started worshipping the Samadhies and therefore, the grandson of the
said Deivasikamani and the hereditary trustee of the said Trust he filed an application under Sections 63(a) and 63(b) of the Tamil Nadu Hindu
Religious and Charitable Endowment Act, not only praying to declare that the suit properties are not public institutions, but also to declare himself
as the hereditary trustee of the said Samadhies and the Deputy Commissioner declared the representative of the plaintiff institution as the hereditary
trustee, appointed him, as such but declined to grant the other relief to declare the suit properties are not Religious Temples or Religious Institution
as defined under the Act; that against the rejected portion of the order, he filed an appeal before the Commissioner, H,R. and C.E., but he
confirmed the order of the Deputy Commissioner and hence left with no choice, the respondent/ plaintiff filed the statutory suit u/s 70 of the Tamil
Nadu Hindu Religious and Charitable Endowment Act, praying for a decree to the said effect besides setting aside the order of the Commissioner
to the defendants to the suit.
On the contrary, on the part of the appellant/defend ant, it would be argued that there are idols installed within the premises of Samadhies and
public worship of the idols are also there, besides public contributions for the conduct of usual and special Poojas on festive occasions and
therefore, the Samadhies in due course got transformed into the Temple of worship and therefore, it is a public Temple within the meaning of the
relevant provisions of the Tamil Nadu Hindu Religious and Charitable Endowment Act. They would also further lay emphasis for having not issued
Section 80 notice, as contemplated under C.P.C. Ultimately, the Commissioner, H.R. and C.E. would justify the rejection order passed by the
Deputy Commissioner, H.R. and C.E. so far as the declaratory relief is sought for.
A careful perusal of the evidence placed on record and the Judgment rendered by the lower Court would clearly reveal that relevant
documents have been placed in evidence as the proof of the pleadings of the plaintiff in the form of Ex. A series for the performance of the birth
anniversaries of the Saints, Sri Bhagavandha Swamigal and Sri Dayananda Swamigal, as found in Exs. A3 to A.9 besides Ex.A2 Memorandum of
Association pertaining to the Mutt and the other Exs. A. 14 to A. 16, for the performance of maintaining the accounts, in order to show that there
is no public contributions, but only from the endowed properties they are managing the madam and performing the Poojas and Guru Poojas. Apart
from these documentary evidences, five witnesses have also been examined for oral evidence and they would all confirm the pleadings of the
plaintiff. All these would go to show that the suit property still retains its identity as the Mutt and the hereditary trustees of the founder trustee Mr.
Deivasikamani have been performing Poojas and Guru Poojas not only on daily basis, but also on important occasions in the year besides
celebrating the birth anniversaries of the Saints; that now it is the representative of the plaintiff Mutt Mr. U. Arunachalam who continues to perform
the same in the usual manner and therefore, just for the simple reason that certain idols have been installed inside the premises of the Samadhies
they have not lost this characteristic features as the Samadhies or Mutt and therefore, they cannot become a public Temple.
On the contrary, in consummation of the pleadings putforth on the part of the appellant/defendant, excepting for certain allegations broughtforth
above, absolutely no oral or documentary evidence has been placed on record thereby establishing their case. In short, so far as the case of the
appellant is concerned, it is a case of Nil evidence. Therefore, easy conclusions have been arrived at by the lower Court in granting the decree as
prayed for by the respondent. The trial Court framing proper issues based on the pleadings including one for non-issue of Section 80 notice has
clearly answered that Section 80 notice is not at all necessary and the same has also been held by the Division Bench of this Court in the first
Judgment cited supra reported in (1997)1 MLW 704 : 1997 AIHC 1403 . So far as the doubts created on the part of the appellant pertaining to
the idols installed in the suit premises, the second Judgment cited above reported in (1977)1 M LJ 125, serves an eye-opener, clearly revealing
that such installation can only be considered adjuncts to the Samadhi and not factors which are effective for elevating the Samadhi to the category
of the Temple. Furthermore, framing other issues also pertaining to the facts of the case and having its own discussions in clear appreciation of the
facts and circumstances in evidence, the trial Court has arrived at the right conclusion and the only conclusion that could be arrived at in the
circumstances of the case.
There is absolutely no infirmity or inconsistency or error of law or even perversity in the appreciation of evidence so far as the Judgment and
decree passed by the lower Court is concerned and hence the interference of this Court sought to be made into the same is neither necessary nor
called for.
In result, (i) the above appeal suit is without merits, and is dismissed, (ii) The Judgment and decree dated 2-7-1981 rendered in O.S. No. 633 of
1979 by the Court of Subordinate Judge, Cuddalore is hereby confirmed, (iii) However, in the circumstance of the case, there shall be no order as
to costs.