C.R. Jayaraman &
Ors. Vs. M. Palaniappan & Ors. [2008] INSC 2211 (18 December 2008)
Judgment
REPORTABL E IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 993 OF
2002 C.R. Jayaraman & Ors. ----Appellants Versus M. Palaniappan & Ors.
----Respondents
TARUN CHATTERJEE, J.
1.
This
appeal is filed against the judgment and order dated 25th of September, 2001 of
the High Court of Judicature at Madras whereby the High Court had dismissed the
L.P.A. No. 196 of 1996 preferred by the appellants before it.
2.
The
relevant facts leading to the filing of this appeal as emerging from the case
made out by 2 the appellants are narrated in a nutshell for a better
understanding and determination of the disputes between the parties:
It is the case of the
appellants plaintiffs before the trial court that their ancestor Ellu Iyer,
constructed and built three temples, namely, Pillaiyar Temple, Anjaneyaswami
Temple and Gopalakrishna temple out of his own funds some time before 1890.
The aforesaid temples
were throughout treated as private temples of the appellants and were virtually
in their management. The members of the public never had any right to offer
worship in the temples and the deities were never dedicated to the public. On
18th of March, 1965, the mother of the first appellant had received a letter
from three persons alleging that they had been appointed as non-hereditary
trustees of the aforementioned temples by the Hindu Religious and Charitable
Endowments Board (in short "the Board"), directing the mother of the
first appellant to hand over the property and records of the temples. In the 3
same year, the mother of the first appellant filed a Writ Petition being WP No.
1492 of 1965 before the High Court at Madras, praying for quashing the order of
the appointment of non-hereditary trustees of the said temples. On 15th of
March, 1967, the High Court allowed the Writ Petition directing the mother of
the first appellant to file an appropriate application before the Deputy
Commissioner of the Board for declaration of the aforesaid temples as the
private temples of the family of the appellant. Thereafter, the mother of the
appellant filed an application being O.A. No. 28 of 1970 before the Deputy
Commissioner of the Board under section 63(a) of the Hindu Religious and
Charitable Endowments Act. The said application was dismissed on 1st of
October, 1973, and on appeal, the Commissioner of the Board confirmed the said
order on 19th of December, 1973. Thereafter, the appellant on 18th of March,
1974, filed a suit for setting aside the order of the Commissioner being O.S.
No. 169 of 1974 before the Principal Subordinate Judge, Erode, 4 Tamilnadu.
The trial court held the aforesaid temples as public temples. Aggrieved by the
judgment and order of the trial court, the appellants preferred first appeal
before the Madras High Court being A.S. No. 665 of 1982 on 13th of August, 1982
which was dismissed by the High Court on 21st of June, 1996.
Thereafter, the
appellants preferred a Letters Patent Appeal being L.P.A. No. 196 of 1996
before the Division Bench of the High Court which dismissed the same. Thus,
being aggrieved, the appellants preferred the present appeal, which on grant of
leave was heard in the presence of the learned counsel for the parties.
3.
We
have heard the arguments of the learned counsel appearing on behalf of the
parties and perused the materials on record. Having done so, we do not find any
reason to interfere with the judgment of the High Court which was based
practically on the question of fact arrived at not only by the High Court but
also by the trial court. Reasons are as follows :
4.
Learned
counsel appearing on behalf of the appellants contended that the Board was not
empowered under the Madras Hindu Religious and Charitable Endowments Act, 1959
to declare a private temple as a public temple. We are not in agreement with
this argument of the learned counsel for the appellants. A perusal of the
relevant provisions of the Act would clearly show that there is no bar for the
Board to declare a particular temple as a public one.
However, the suit
that was filed by the appellants which gave rise to filing of this appeal in
this Court was for a declaration that the aforesaid temples were private in
nature and not public temples. Therefore, it was for the plaintiffs/appellants
to prove on evidence that such temples were private in nature.
5.
Before
we proceed further, we may, at this juncture, refer to a decision of this Court
in 6 the case of Hari Bhanu Maharaj of Baroda vs. Charity Commissioner, Ahmedabad
[(1986) 4 SCC 162], in which this Court has categorically held that the onus of
proving the temple as public or private vests with the Board. Drawing
inspiration from the aforesaid decision of this Court, the learned counsel
appearing on behalf of the appellants had drawn our attention to the order
passed by the Board holding that the aforesaid temples were public in nature
and submitted that the said order of the Board was not in accordance with law
because the Board had failed to discharge its onus of proving the aforesaid
temples as public. From a plain reading of the order of the Board, which is
already on record, we are of the view that the Board had categorically held on
materials sufficient to prove that the aforesaid temples were in fact public
temples and not private temples as alleged by the 7 appellants. In the
aforesaid decision of this Court, it was observed as follows :- "Even the
provision of the collection boxes for cash and grains cannot by itself be a
decisive factor to conclude that the Math is a public Math. The collection
boxes had been installed in the Sabha Mandap as well as near the Samadhis.
Since there is no evidence that Laxman Maharaj and Haribhat Maharaj for whom
the Samadhis have been built were religious leaders revered by the public, the
provision of the collection boxes near their Samadhis would have been only for
deposit of offerings by the members of the families on Guru Purnima day or in
fulfilment of vows taken by them. More than this, the contents of the cash boxes
themselves disprove the assumption that they have been kept there to enable the
members of the public to make offerings in cash or grains during their visit to
the Mandir. Of the two boxes kept in the Sabha Mandap one was found to contain
1/4 pound of wheat and the other Rs. 0-8-
9. Similarly the
boxes kept near the Samadhis were found to contain 1/4 pound of rice and one
paise respectively. If the members of the public had been visiting the Mandir
even occasionally and depositing contributions of grains and cash in the
collection boxes, the quantum of grains and the amount of cash would not have
been so meagre and trivial as 1/4 pound of wheat and, Rs. 0-8-9. These
revealing features have been lost sight of by the High Court and has led to
fallacious conclusion."
8 In the present
dispute as had been noted by the trial court and later affirmed by the High
Court in its impugned judgment, it has been proved beyond doubt that public
offerings were accepted during the normal days of worship by the Poojari, and
that the members of the public visited the temple often as a matter of right
without any hindrance or obstruction. The appellants contended that as per the
Hindu customs, they could not stop the general public from coming inside the
temple even though the temple is a private temple. Though this contention has
some weight in the light of the circumstances, yet it cannot be the sole
deciding factor to determine whether a temple is in fact a private one or
dedicated to the public. In the decision reported in Goswami Shri Mahalaxmi
Vahuji vs. Shah Ranchhoddas Kalidas (dead) & Ors. (AIR 1970 SC 2025), this
Court has held as follows:
9 "The true
character of the particular temple is decided on the basis of various
circumstances. In those cases, the courts have to address themselves to various
questions such as:
i) Is the temple
built in such imposing manner that it may prima facie appear to be a public
temple? ii) Are the members of the public entitled to worship in that temple as
of right? iii) Are the temple expenses met from the contributions made by the
public? iv) Whether the sevas and unsevas conducted in the temple are those
usually conducted in public temples? v) Has the management as well as the
devotees been treating that temple as a public temple?"
Taking these
above-mentioned points into consideration, the trial court as well as the High
Court proceeded to determine the nature of the aforesaid temples as to whether
they were public or private in nature. In this connection, the trial court as
well as the High Court, on consideration of fact and evidence, documentary and
oral, came to the conclusion of fact that the appellants could not prove by
production of 10 cogent evidence that the temple was or is situated in a patta
land of the appellants as they had claimed. The High Court in its judgment
passed in the first appeal dated 21st of June, 1996, which was affirmed by the
Division Bench of the High Court in the Letters Patent Appeal, observed as
follows:
"Two choultries
have been put up in Pillaiyar temple and the object of constructing those
choultries is to enable the relatives of his predecessors and the lessons to
stay there when they come to Erode and it would go to show that the object of
constructing the choultry itself is to enable the persons other than the family
members of Ellu Iyer to stay there.
Therefore it cannot
be stated that the temples have been constructed in their patta land and the
object of constructing the temples is only to benefit their family".
6.
The
Poojari of the aforesaid temples deposed before the trial court and stated
categorically in his deposition, which was accepted by the High Court also,
that the Pooja articles were 11 received from the public during the Pooja time
and in turn, he used to give Prasadam to the public. It was also stated by him
that utsavams were used to be conducted during "Skanda Sasmti",
"Thai Pyosam", and "Panchuni Uthiram"; and on those
occasions, the deities were taken out as a general custom in procession through
the main roads of Erode town. It was also admitted by him that during festival
days and also during the Pooja time, public used to come and offer their
worship before the deities and there was no direction issued to him that he
should not perform the pooja offered by the public. The Poojari had also
admitted before the Assistant Commissioner of the Board that public used to
come to the festival without any obstruction and that they used to offer
donations and collect funds from the public to conduct festivals in the
temples. The High Court, in its 12 impugned Judgment, relied on its decision
reported in The Madras Hindu Religious Endowment Board vs. V.N. Deivanai Ammal
By Power of Attorney Agent TV.
Mahalingam Iyer,
[1952 (II) M.L.J. 686], which held that where there was an Utsava idol and
processions were taken out, it would indicate the fact that the temple was a
public temple. This principle was also reiterated in another decision of the
Madras High Court in Kalyanasundara Mudaliar; [1957 (II) MLJ 463], wherein it
was also held that the provisions of the settlement deed taken along with the
other features such as the existence of Dwajasthambam, Balipeetham and Utsava
Vigraham and carrying on deity in procession and accepting Deeparadhana from
the members of the public on that occasion conclusively establish that the
institution was 13 a place of public religious worship conducted to or for the
benefit of the Hindu community in the village as a place of religious worship
and that it was the public and not a private temple and fell within the
definition of Section 9(12) of the Madras Act II of 1927. We are in respectful
agreement with the views expressed by the Madras High Court in the aforesaid
two decisions regarding the principles to be applied to come to a finding
whether the temple is private or public in nature. The evidence at our disposal
also shows that the public at large used to offer worship to the Vinayaka
Temple in the platform of Brough Road and also the Ajaneya temple in the bank
of the river Cauvery and these temples were always accessible to the residents
of Erode and the public had always regarded these temples with great esteem and
veneration. This Court in Deoki Nandan vs. V. Murlidhar & Ors. [AIR 14
1957 SC 133], held that where idols were installed not within the precincts of
residential quarters, but in a private building constructed for that very
purpose on a vacant site and where some of the idols were permanently installed
on a pedestal within the temple precincts, that is more consistent with the
endowment being public rather than private. Further, a Constitution Bench of
this Court in Tilkayat Shri Govindlalji Maharaj etc. vs. State of Rajasthan
& Ors. [AIR 1963 SC 1638], held that where evidence in regard to the
foundation of the temple is not clearly available, the answers to the questions
namely, are the members of the public entitled to take part in offering service
and taking darshan in the temple, are the members of the public entitled to
take part in the festivals and ceremonies arranged in the temple and are their
offerings accepted as a matter of right will 15 establish the character of the
temple. Therefore, according to the above mentioned decision, the participation
of members of the public in the darshan in the temple and in the daily acts of
worship or in the celebrations of festive occasions are to be very important
factors in determining the character of the temple. In the present case, even
though the appellant has contended that it is not possible under the Hindu
custom to refuse the entry of the public into the temple, but this contention
cannot be supported in the light of the discussions and rationale of the cases
mentioned above.
7.
Apart
from that, the appellants could not prove by adducing any evidence that the
temples were built in their private patta land as was alleged by them and the
temples were situated and constructed on their own land. Since the 16 findings
arrived at by all the Courts below that the temples were public in nature, are
questions of fact and based on considerations of material evidence, documentary
and oral, in our view, such findings of fact affirmed by the High Court in the
first appeal and also affirmed by the Division Bench in the Letters Patent
Appeal, until and unless, the appellant could show that the findings arrived at
were perverse. In the present case, as we have already held that all the Courts
below, on entire consideration of the materials on record, had held that the
temples in question are public in nature, it is difficult for us to interfere
with such finding of fact in the exercise of our power under Article 136 of the
Constitution of India.
8.
In
view of our discussions made hereinabove, we do not find any infirmity in the
findings of 17 the High Court as well as of the trial court to hold that the
aforesaid temples were public in nature and the appellants had failed to prove
successfully that the same were private in nature.
9.
For
the reasons aforesaid, we do not find any infirmity in the impugned judgment
and, accordingly, we dismiss the appeal. In the facts and circumstances of the
case, there will be no order as to costs.
.........................J
[Tarun Chatterjee]
........................J.
New
Delhi;
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