S. Pitchai
Ganapathy & Ors Vs. Commissioner, [2001] Insc 468 (10 September 2001)
S. Rajendra
Babu & S.N. Variava Rajendra Babu, J. :
J U D
G M E N T
This
appeal by special leave is against the judgment in Letters Patent Appeal No.
206 of 1992 on the file of the High Court of Madras.
The
question raised in this appeal is as to whether the temples of the Madurai Veerasami
and 18 Padi Karupannasami Temple are private temples of the appellants family
or they belong to the second respondent temple Meenakshi Sundereswarar Temple, Madurai
or a sub-temple belonging to it as claimed by respondents.
The
appellants claim that the two shrines of Madurai Veerasami and 18 Padi Karupannasami
Temple are situate in a premises bearing Door No. 52, East Chitrai Street, Madurai;
that adjoining these temples are two shops in premises bearing Door Nos. 51 and
53; that they are private temples and are in their possession and enjoyment as
such; that though they were situate in paramboke lands of the Government, these
lands on which the temple situate are recognised as private lands of the
appellants in the proceedings of the Collector dated 1.9.1941 and even earlier;
that the origin of the temple is lost in antiquity; that as far as they could
trace the records their great great grand mother Meenakshi Ayi had come to be
in the possession and enjoyment of the temple through her father who was a Pujari
of the temple from about 100 years now; that the litigation raised as early as
in 1884 ended in her favour;
that
there are several documents to show that she constructed a pucca building which
was only thatched sheds by raising loans and was in possession and enjoyment of
them as her private temples; that even now the members of the appellants alone
worship the deities in the temples.
The
Assistant Commissioner, Hindu Religious and Charitable Endowments Department,
Madras, issued a notice on 26.2.1971 calling upon the appellants to get a
declaration that the suit temple is a private temple as the appellants resisted
his move to treat it as a public temple.
The
appellants filed an application in O.A. No. 23 of 1971 before the Deputy
Commissioner, Hindu Religious and Charitable Endowments (AIM) Department, Madurai
under Section 63(a) of the Tamil Nadu Hindu Religious and Charitable Endowments
Act, 1959 [hereinafter referred to as the Act] for a declaration that the
temple in question is a private temple of the appellants family. The second
respondent was impleaded on its application and contended that these temples
formed part of it and it is one of its subsidiary temples. The Deputy
Commissioner by an order made on 24.1.1973 allowed the application holding that
the temple is a private temple of the appellants. Against that order second
respondent preferred an appeal under Section 69 of the Act and the first
respondent, after hearing both the parties, made an order on 24.11.1977
allowing the appeal by holding that the temple in question belonged to the
second respondent and is a public temple.
Against
that order, the appellants filed a suit in O.S. No. 267 of 1978 on the file of
the Subordinate Judge, Madurai, as provided under Section 70 of the Act, inter alia,
seeking to grant a declaration that the suit temple is a private temple of the
appellants and for an injunction to restrain the respondents to interfere with
the possession and enjoyment of the temple. After trial the Subordinate Judge
decreed the suit holding the suit temple is a private temple of the appellants.
Against that judgment two appeals were preferred in A.S. No. 554 of 1982 and
A.S. No. 56 of 1984 on the file of the High Court of Madras. The High Court by
order dated 6.11.1992 allowed both the appeals on the ground that firstly the
suit was not maintainable for want of issue of a notice and secondly, on
merits, it was held that the suit temple is a public temple belonging to the
second respondent. Against the said judgment and decree the Letters Patent
Appeal No. 206 of 1992 was filed. The said appeal has now been dismissed
holding that the temple in question is a public temple forming part of the
second respondent temple and in a suit of the present nature filed under
Section 70 of the Act a notice under Section 80 Civil Procedure Code was not
required.
The
trial court proceeded to analyse the matter with reference to the Act as to
whether the suit property is a religious institution as defined under the Act.
In ascertaining the same the trial court relied upon a decision of the Madras
High Court in The Commissioner for Hindu Religious and Charitable Endowments,
Madras vs. A.B.S. Sethurama Pillai & Ors., reported in 1960 M.L.J. 157, to
the effect that where there is no proof that any dedication of the temple to
the public has been made or that the public worship in the temple as of right
at any time the institution is a private temple only and the Hindu Religious
and Charitable Endowment Board would have jurisdiction to initiate proceeding
or regulate the management by a scheme in respect of such a private temple
under the Act. Proceeding on this basis the trial court considered the effect
of the earlier litigation and looked into the plaint and decree passed in the
prior proceedings in O.S. No. 278 of 1966, O.S. No. 511 of 1881 and O.S. No.
577 of 1888 on the file of the District Munsifs Court, Madurai Town. It was stated that one Muthauee
alias Meenakshi Ayi wife of Chockalingam Pillai had one daughter by name Karuppayee
who had three daughters
(i) Periya
Chellammal alias Sornathammal,
(ii) Chinna
Chellammal and
(iii) Abbirami
Ammal Periya Chellammal alias Soranhammal who had three sons
(1)
K.S. Kalyanasundaram Pillai, who was the first plaintiff
(2) Appavu
Pillai, the second plaintiff and
(3) Shanmugam
Pillai, the father of the third plaintiff. Plaintiff Nos. 1 and 2 died during
the pendency of the suit and plaintiff Nos. 6, 7 and 8 who were their legal
representatives were brought on record.
Muthayee
alias Meenakshi Ayi wife of Chockalingam Pillai as hereditary Pujaris and
trustee of the temples in the suit property filed O.S. No. 278 of 1866 on the
file of the District Munsifs Court, Madurai Town against the Government for an
injunction not to interfere with her possession and enjoyment of a pandal put
up in the suit property and also not to prevent her from putting up
constructions in the suit property. After referring to various proceedings, the
trial court held that the title of the ancestors of the plaintiffs to the suit
property has been judicially recognised. However, in resisting this plaint, the
defendants to the said suit pointed out that the temples in question are situate
in between Swami Sannadhi and Amman Gopuram of Sri Meenakshi Temple and
adjacent to the eastern Thirumathil of the said temple and geographical lie of
the suit temple in between Swami Sannadhi and Amman Gopuram of Sri Meenakshi
Temple which will facilitate the public to worship would indicate that the suit
temple is a public temple. An Inspector of the Hindu Religious and Charitable
Endowment Department conducted an enquiry during the pendency of the
proceedings in O.A. No. 23 of 1971. The report and plans made by him were
Exhibits in the suit wherein he stated that the suit temples have the features
of the public temple; that during Adi Pournami Day the devotees of Pathinethampadi
Karuppanaswamy would take sandal paste from the suit temple and go to Pathinethampadi
Karuppanswamy temple at Alagarkoil accompanying with Pujaris of the suit temple
and apply sandal paste in the doors of the Pathinethamapadi Karuppanswamy
temple at Alagarkoil; that for applying the sandal paste the Pujaris of the
suit temple would collect 60 paise per pot; that for collecting such fee per
pot by the Pujaris Alagarkoil Devastham are levying fees to the Pujaris of the
suit temple. These facts have been admitted by P.W. 1. It was contended before
the trial court that the suit property must be a public temple and the claim of
the plaintiffs that the suit temple as well as the suit property are their
private properties could not be accepted. The trial court rejected these
contentions. By mere fact that the suit temples are situate adjoining Thirumathils
of Sri Meenakshi Temple in between Swami Sannadhi and Amman Gopuram on the
south, on the north by Meenakshi Temple Nandavanam, on the east by East Chitrai
Street and on the west by Sri Meenakshi Temple Thirumathil it cannot be construed
that the suit temples must be public temples to bring them under the definition
of Section 6(20) of the Act. It was held that there must be a dedication to and
for the benefit of the Hindu community or any section thereof and it must be
used as of right by the Hindu community and it is quite clear that the
geographical situation of the suit property alone would not be sufficient to
come to the conclusion that the suit temples are private temples. Adverting to
the report and the oral evidence of the Inspector, the trial court held that he
had not seen any temple records to show that the suit temples are adjacent to
the second respondent temple and he stayed in the temple for about 40 minutes
but he had not seen any member of the public worshiping in the suit temples.
Thereafter, the trial court adverted to the oral evidence of D.W. 2, Peshkar of
Sri Meenakshi Temple, who has been holding the office for about 32 years, and
stated that in his 32 years of service he paid visit to the suit temple nearly
for five times and he had seen Thoobakkal, Theebakkal, Vibhoothi Thattu, Bell, Soodathattu.
From his evidence the trial court drew an inference that the suit temples are
not under the management of the second respondent temple and no member of the
public had been examined to establish the fact that public were worshiping in
the suit temples. It was stated that if any death occurs in the houses of any
one of the family members of the plaintiffs, the temple would be kept closed
nearly for 16 days and after that, they would perform poojas in the temple. The
trial court also noticed that in respect of temples in the State of Madras
there is a strong presumption that they are public institutions. The trial
court proceeded to hold that the temples in question are very ancient temples
whose origin is unknown and there is no evidence as to who founded it or built
its institutions. A very ancient document was produced to show that Muthayee
alias Meenkashi Ayi had mortgaged her property nearly 100 years ago for the
purpose of construction of the suit temples. However, the trial court held that
even before the execution of the said mortgage deed the temples in question
were in existence. However, the trial court did not agree with the contention
that when the origin of the temples could not be established the burden lay
heavily upon the plaintiffs to establish that the temples are private ones and
held that there is no proof that the members of the public are entitled to
worship in the suit temples as of right and came to the conclusion that the
suit temples are private temples.
In the
High Court the learned Single Judge, who considered the appeals filed by the
Department and by Sri Meenakshi Sundaraswaran Temple, took the view that the
suit temple is situate in Madurai Town and adjoining the famous Sri Meenakshi Sundaraswaran
Temple and is situate in between the Swami Sannadhi and Amman Gopuram of Sri Meenakshi
Temple and adjacent to the eastern Thirumathi of that Temple. The second
plaintiff, who is now no more, had tendered evidence before the Deputy
Commissioner wherein it is stated that the suit temple is situate not in a
private land and he did not know how it belonged to his ancestors. It was situate
in a paramboke land, but the learned Judge stated that in a place like Madurai Town a space adjoining Sri
Meenakshi Sundaraswaran Temple none could claim Nathan right.
The
evidence disclosed that the suit temple is more than 200 years old.
The
second plaintiff admitted that he did not know when and why and by whom the
suit temple was built. In Exhibit A-3 plaint copy in O.S. No.511 of 1884 filed
by Muthayee alias Meenakshi Ayi whom the plaintiffs claim as their ancestor, it
is stated that suit temple had been built before the time of Karnataka Rajas
and origin of which is not know. The learned Judge stated that considering the
fact that the suit temple is on paramboke land in the heart of Madurai Town adjoining the famous Sri
Meenakshi Sundaraswaran Temple, the legitimate inference would be
that the founders of the temple intended it to be a temple for public worship
and not for private worship. The learned Judge thereafter adverted to the
nature of the temples with reference to Exhibit A-3 which is plaint in O.S. 511
of 1884 wherein the temples had been described.
After
noticing the various parts of the temples, the learned Judge found that the
description of the temples probalises that it could be a public one rather than
a private one. P.W. 1, the sixth plaintiff, had stated that the suit temple was
built by Muthayee alias Meenakshi Ayi but he himself admitted that the second
plaintiff who was elder to him had more knowledge about the suit temples than
he himself had. The learned Judge stated that his evidence is unbelievable. The
second plaintiff in his evidence stated that during Adi Pournami from the suit
temples persons of the public used to take sandal pots to Alagarkoil and for
that the plaintiff used to collect fees from everyone. He further stated that
subsequent to that also they used to collect fees doing Dheeparathani. The
learned Judge thereafter considered in detail the procedure in connection with
the right to paste Alagarkoil and collection of fees. He did not accept the
fact that the mere fact that the Inspector stayed in the temples for about 45
minutes would mean that he could not have seen persons coming to the suit
temples for worship and, the oral evidence being very slippery, the learned
Judge rejected the same.
In
regard to the documentary evidence, he noticed that they all indicated that the
plaintiffs were Pujaris and trustees of the temples and that they might have
right to be Pujaris or trustees but from that fact it could not be inferred
that the suit temple is a private temple. Even Muthayee alias Meenakshi Ayi
filed O.S. No. 278 of 1866 on the file of the District Munsifs Court, Madurai
against the Government for injunction not to interfere with her possession and
enjoyment of pandal put up in the suit properties only as a Pujari of the
temple and there was no claim made that the land did not belong to the temple
but to an individual. In O.S. No. 511 of 1884 also the trustees and authorities
of the suit temples had filed a suit for declaration of ownership of the suit
properties and for injunction as Pujaris only. When the Municipal Corporation
of Madurai took steps to acquire the verandah
portion in front of the suit temple, Muthayee alias Meenakshi Ayi objected to
the same acting again in the capacity of a Pujari of the temple. Therefore, the
learned Judge observed that it is wrong to state, as the trial court had done,
that the said legal proceedings had recognised the plaintiffs ownership to the
suit temples.
Adverting
to Exhibit A-6 which is the rent deed and Exhibit A-7 which is a loan bond, the
learned Judge stated that there was no mention in these documents that Muthayee
alias Meenakshi Ayi is the owner of the suit properties. Even though she could
be in exclusive management of the suit properties but that circumstance would
not indicate that the suit temple is a private one. Partition Deed dated 27.5.1897,
Exhibit A- 14, indicates that the plaintiffs family had divided the rights of
some honour they were entitled to in respect of the suit temple and hence no
question of partition of the suit temple had arisen.
The
trial courts observation was also noticed that it is, of course, true in the
short cause title and long cause title suits they were addressed as poossries
and trustees. Thereafter, the learned Judge adverted to the payment of property
tax and held that by mere payment of property tax the plaintiffs could not
claim to be owners of the properties in question.
The
learned Judge observed that the trial court had examined the case from a wrong
angle to the effect that unless a dedication of the temple to the Hindu
communities is proved, the temple cannot be held to be a public temple and the
origin of the temple being not known and the temple had been built before the
Karnataka Rajas more than 200 years ago, there is a presumption that the suit
temples are public temples.
On
that basis, the learned Judge held that the suit temple is a religious
institution as defined under Section 6(20) of the Act and is not a private
temple.
The
matter was carried further in appeal on the Letters Patent side. The Division
Bench of the High Court in a very erudite and lengthy judgment referred to
various facets of the Act and more than half judgment is devoted to the
question as to whether the suit would lie without notice under Section 80
C.P.C. The learned Judges reiterated what the learned Single Judge stated on all
aspects of the facts and held that the temple in question is a public one and
not a private one.
However,
Shri A.T.M. Sampath, learned counsel for the plaintiffs- appellants, reiterated
the contentions urged before the High Court. Shri Sampath placed strong
reliance upon the decision of the trial court. He submitted that in order that
a temple to be a religious institution within the meaning of Section 6(20) of
the Act, a temple has to be dedicated for the benefit of the Hindu community or
any section thereof as a place of public religious worship and used by the
public of the temple as of right for worship. The circumstances and the
documents upon which reliance has been placed by the parties before the trial
court and the High Court are reiterated before us such as decree in O.S.No.511
of 1884 in the court of District Munsif, Madurai, decree in O.S.No.278 of 1866,
the deed of loan dated 17.3.1888, decree in O.S.No.577/1888, the deed of
partition dated 27.5.1897, sale deed dated 6.11.1907 executed by Chinna Chellammal
and others, proceedings of the Collector, Madurai dated 1.9.1941, and on a
proper construction of these documents, he submitted that the
plaintiffs-appellants family enjoyed the suit temple as a private temple.
The
examination made by the trial court has been very thorough on entire material
placed before it in the shape of oral and the documentary evidence but its
conclusions on many of them or its construction of the documents appear to be
faulty as found by the First Appellate Court which equally thoroughly examined
the matter and came to the contrary conclusion that the suit temple is not a
private temple which stood affirmed by the Division Bench of the High Court on
an independent examination of the matter.
The
gist of the allegations made by the plaintiffs-appellants in the suit is that
their ancestors filed a suit in O.S.No.278 of 1866 on the file of the District Munsifs
Court, Madurai, against the Government for declaration of their ownership of
the temple and for injunction restraining the Government from interfering with
their right of possession and enjoyment as owners and Pujaries. The said suit
was decreed. The plaintiffs-appellants again filed another O.S.No.511 of 1884
in the same court against the trustees and the authorities of the Sri Meenakshi Sundereswarar Temple on the ground that they were attempting to interfere with
their possession. This suit was also decreed.
A
partition was entered into between the members of the plaintiffs- appellants
family and the portion of the property was leased out to tenants and on this
basis, the plaintiffs-appellants contended that the suit temple is not a
religious institution as defined under Section 6(20) of the Act and the members
of the public have no right to worship in the temple; that the building does
not bear any characteristics of a public temple and that the
plaintiffs-appellants and the members of their family alone were performing poojas
and other services in the temple hereditarily.
The
stand of the defendants-respondents is that the temple is constructed on a poramboke
land bounded on three sides by the nandavanam and the second defendant, Sri Meenakshi
Sundereswarar Temple; that the devotees worship in that temple as a matter of
right and that the judgments rendered in O.S.No.278 of 1866 and O.S.No.511 of
1884 or the partition effected on 27.5.1897 will not affect the right of the
public. The stand of Sri Meenakshi Sundereswarar Temple and that of the Commissioner, Hindu Religious &
Charitable Endowments Department, Madras are identical.
The
trial court, as noted earlier, held that suit temple is not a religious
institution as defined under Section 6(20) of the Act. The learned Single Judge
on appeal and the Division Bench of the High Court in Letters Patent Appeal
took a contrary view and concurrently held that the suit temple is a religious
institution as defined in Section 6(20) of the Act and it is not a private
temple as held by the trial court on the facts adverted to by the learned
Single Judge.
The
fact that temple is situate on poramboke land cannot be seriously disputed;
that the origin of the temple is not known; that its location is next to the
famous Meenakshi Amman Temple; that the evidence adduced on behalf of the
plaintiffs-appellants was not enough to hold the temple and the properties
owned by it belong to the plaintiffs- appellants. The documentary evidence made
available to the court with reference to the suit in O.S.No.278/1866,
O.S.No.511/1884 and Ex.A-7, which is described as a deed of loan executed on
17.3.1888 by Muthayee alias Meenakshi Ayi. It is not clear from the judgments
as to who deposed on behalf of the plaintiffs-appellants and who deposed on
behalf of the defendants-respondents and even after careful perusal of the
entire judgment no conclusion can be drawn as to in what capacity the ancestors
of the plaintiffs-appellants claimed enjoyment of the suit land.
There
is a specific mention of the claim of the plaintiffs-appellants in the suit
that the suit land belonged to the plaintiffs-temple. The ownership of the
lands is thus conceded to the temple and not claimed by the plaintiffs and it
was not made clear as to who the plaintiffs were. In regard to O.S.No.511/1884,
a reference to the plaint would reveal that it was a suit filed by two
plaintiffs described as Priest/Priestess of the Padhinettampadi Karuppannasamy
Temple and situate at Kizhathirai Street, Madurai and Veerasamy Pillaiyar
Temple, Madurai, the Division Bench clearly found that the claim made in the
suit was with regard to possession and enjoyment and not title or ownership and
the judgment was not made available in that particular case and the decree
indicated the date of the judgment to be 11.4.1885 in favour of the plaintiffs-
appellants restraining the defendants-respondents by entering into the suit
property in order to disturb the peaceful possession and enjoyment of the suit
property by the plaintiffs-appellants and also directing the
defendants-respondents to pay Rs. 20/- to the plaintiffs-appellants for having
demolished the wall unlawfully and also directing to pay the costs to the
plaintiffs-appellants. Exhibit A-7, which is dated 17.3.1888, was executed by
one of the ancestors of the plaintiffs-appellants and in order to construct a pucca
building of the Sri Meenakshi Sundereswarar Temple, the wife of the temple Priest took a loan of Rs.500/- from one Chackarabani
Chettiar. Therefore, this document can hardly throw any light on the character
of the suit temple. The judgment in O.S.No.577 of 1888 is also useful as in
that judgment there is only reference to certain description and nothing of any
importance on the question whether the temple was a public or private temple.
The deed of partition dated 27.5.1897 indicates that certain rights are
available to the plaintiffs- appellants family in the suit temple in offering pooja
and the right to apportionment of the offerings and nothing more.
Both
the learned Single Judge and the Division Bench strongly relied upon the
evidence tendered by Appavoo Pillai, who was the second petitioner in the case
before the Deputy Commissioner and he did not depose in the suit but died
during the pendency of the suit. In these circumstances, reliance was placed on
the statements made by him before the Deputy Commissioner which is to the
effect that the plaintiffs- appellants did not buy the same from anyone and
since his ancestors were enjoying, it had come to be enjoyed by them. He
admitted that the house taxes were paid in his capacity as trustee. The public
could offer worship at the temple only with their permission and they had never
refused such permission at any time. The public also used to carry the sandal
pot from the temple and each individual should pay 10 annas for the same. While
the devotees come for such pooja, they used to collect fees from them which
would be taken away by them. The tax had not been levied on their original
names but only as Manager of the trustee or only in that capacity they had
collected the rents. Exhibits A-41 to A-47 did not pertain to the temple. The
site mentioned in Exs.A-49, 50, 51 and 52 did not pertain to the suit site of
the temple but were lying in front of the suit temple and the aforesaid site
and also the site found in Ex.A-53 were not that of the temple but adjoining
it. This evidence is fatal to the case of the plaintiffs-appellants and,
therefore, the High Court could firmly come to the conclusion that the
presumption that the temple is a public temple is not rebutted.
In
reaching this conclusion, when on questions of fact and on construction of the
documents, none of which can be treated to be documents of title, but only to
indicate the description of the property or the nature of possession and
enjoyment of the property thereof alone has been considered, we think there is
hardly anything for this Court to interfere with such orders. The Division
Bench as well as learned Single Judge have each independently applied their
mind to the relevant documents and have arrived at identical conclusions.
Indeed the Division Bench made very detailed analysis of the judgments rendered
in the suits referred to and also to the deed of partition to ascertain the
rights of the plaintiffs-appellants. The anxiety shown by the High Court will
clearly indicate that even if there was a wee-bit of material before the court
the same would have been held in their favour.
We
have also independently examined the evidence on record in the matter and we
think there is no substance in this appeal. The appeal, therefore, stands
dismissed. However, in the circumstances of the case, there shall be no orders
as to costs.
.....J.
[ S.
RAJENDRA BABU ] ....J.
[ S.N.
VARIAVA ] SEPTEMBER 10,
2001.
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