The third defendant in the suit is the appellant. The Appeal has been filed against the judgment and decree of the learned VII Assistant Jude, City Civil Court, Madras, dated 05.10.1994.
2. The plaintiffs/respondents 1 and 2 herein have filed a Statutory suit under Section 70(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959) against the H.R.&C.E. praying to set aside the order dated 22/12/1990 of the Commissioner, HR & CE Department, the first defendant in the suit and to declare that the third defendant is not holding office as heriditary trustee in Makaliamman temple within the meaning of
Section 6 (11) and 63 (b) of the Act.
3. For the sake of convenience, the parties shall be referred to as Plaintiffs and defendants, as arrayed before the court below.
4. The case of the plaintiffs, as projected in the plaint, is that Sri Makaliamman Temple is a very old temple and it is in existence for a very long time. The temple is being worshipped by the public at large in the area. The temple has therefore attained the character of public religious institution and comes under the purview of the Hindu Religious and Charitable Endowments Act. While so, the third defendant Sangam, being a recent origin, has taken over the renovation work of the temple and after completion, the third defendant has stealthily attained the character of a Trustee of the temple. In order to obtain recognition of the sangam, the third defendant filed O.A.No. 56 of 1985 under
Section 6 (11) of the HR & CE Act before the Dy. Commissioner of HR & CE Madras as if the Sangam was the founder of the temple. On coming to know the filing of O.A. No. 56 of 1985 by the third defendant, the Plaintiffs have filed a petition before the first defendant to invoke the suo moto revision powers contemplated under Section 69 (2) of the Act and to reverse the order passed by the second defendant. The first defendant has issued notice to the third defendant Sangam and a counter was also filed claiming that the third defendant was the founder of the temple. The first defendant, after hearing the arguments of both sides droped the suo motu proceedings and confirmed the order passed by the second defendant, hence, the suit was filed.
5. The first defendant has filed a written statement, which was adopted by the second defendant, resisting the averments made in the plaint. According to the first defendant, the suit temple is a public religious temple as contemplated under
Section 6 (20) read with
Section 6 (18) of the Tamil Nadu HR & CE Act and the temple is under the administrative control of the department. The temple has been subjected to levy of contribution and audit fees under Section 92 of the Act. Under Section 49 (1) of the Act, one V. Veerabadran was appointed as sole Trustee on 08.10.1979 and his term of office expired on 07.10.1982. Subsequently, one Shantha, Wife of Rathnavelu was appointed as Sole Trustee by proceedings dated 03.04.1984 to attend the day to day affairs of the temple. Meanwhile, an Executive Officer was appointed under Section 45 (1) of the Act for the purpose of proper and better management of the temple, who took charge on 13.03.1985. At this stage, one Krishnan, representing to be the Secretary of the Temple has filed O.A.No. 22 of 1959 seeking to declare that the Arulmighu Makaliamman Sangam is registered under the Societies Registration Act, which was allowed by the Deputy Commissioner on 21.08.1986. Thereafter, the plaintiffs have filed a petition to invoke the suo motu powers conferred on the Commissioner of HR & CE Department, which was dismissed. Aggrieved by the same, the suit has been filed.
6. According to the first defendant, the second defendant/Deputy Commissioner had duly enquired into the matter and came to a conclusion that the third defendant society has been responsible for the purchase of plot wherein the temple is built and also for construction and installation of the suit temple. Therefore, the second defendant had granted the relief of declaratin sought for by the third defendant Sangam. The first defendant also pursued the records and examined the legality of the order passed by the second defendant, heard the argument of the plaintiffs and then came to a conclusion that the relief sought for by the plaintiff cannot be granted. The first defendant also held that the third defendant Sangam has acquired the status of the founder on possessing the property by way of purchase of the plot as allotted from the Tamil Nadu Housing Board, thus, the Sangam retains the title of the deity or temple situated therein as the Founder. Therefore, according to the first defendant, the relief sought for by the plaintiff is devoid of merits and the suit is to be dismissed with costs.
7. The third defendant also filed a written statement contending that the third defendant Sangam raised funds by way of membership fee and donations from the members and started a pucca temple building and installed the deity of Makaliamman so as to enable the members of the Sangam as well as the public to have a temple for the purpose of worship. Witht his view, the members of the unregistered society applied to the Registration of Societies and on 18.09.1973, the Sangam got themselves registered as a society under the Societies Registration Act, 1860 under the name and style of "Arulmighu Makaliamman Sangam" with registration No.297 of 1973. The objects of the Sangam, including conducting religious discourses, upanyasams etc., were set out in the Memorandum of Association of the Sangam. The third defendant also applied to the first defendantfor allotment of a site for construction of pucca building for the temple and the first defendant recommended to the Tamil Nadu Housing Board to allot a plot, with the result, the present land, where the temple is located, has been allotted to the Sangam by the Housing Board. Further, the defendant Sangam is also raising funds for the next stage of construction of prayer hall and Mahamandapam and also having plans to construct a full-fledged Rajagopuram in due course. Therefore, according to the third defendant, the relief sought for by the plaintiffs cannot be granted and prayed for dismissal of the suit.
8. The only point urged by the learned counsel for the third defendant/appellant is that the third defendant Sangam was rightly declared as hereditary Trustee within the meaning of
Section 6 (11) and 63 (b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act by the respondents 1 and 2 after considering all the material records, but without any valid reasons, the court below had decreed the suit filed by the plaintiffs and prayed for setting aside the decree and judgment passed by the Court below.
9. Before the Court below, the first plaintiff examined himself as PW1 and marked Exs. A1 to A5. On behalf of the defendants, One Nagarajan was examined as DW1 and marked Exs. D1 to D13. The court below, after considering the oral and documentary evidence decreed the suit as prayed for.
10. I have heard the counsel for both sides. The point for consideration in this appeal is
(i) Whether the decree and judgment passed by the Court below is contrary to the provisions of Section 11 of the Tamil Nadu Hindu Religious and Charitable Endowments Act
ii) Whether the order passed by the second defendant dated 21.08.1986, confirmed by the first defendant by its order dated 22.12.1990 authority recognising the third defendant Sangam as a Heriditary Trustee is valid?
11. During the course of hearing of the appeal, the learned counsel for both sides faily submitted that in the latest decision of the Honourable Supreme Court reported in (Commissioner, HR & CE, Madras and another s. Vedantha Sthapna Sabha) 2004 6 SCC 497 it was held that no trust or society can be called as a Hereditary trustee inasmuch as line of succession does not devolve upon from one person to another. Similarly a society or trust cannot be itself sold or transformed or changed from one person to another. Further, if there is any right of interest of the society over the institution, such a right or interest has got to be declared by the authorities contemplated under Section 63 of the HR & CE Act. In this case as found from the records and as admitted in the pleadings, the third defendant Society was not the originally founder of the Temple. The third defendant has only later taken over the temple and administered the day to day affairs of the temple. In this contest Para 14 of the Judgement of the Supreme Court can usefully be extracted hereunder.
14. A bare reading of the definition of "hereditary trustee" brings into focus three important aspects i.e. First, a trustee of a religious institution the succession to which is devolved by hereditary right; the second category is that succession can be regulated by usage and the third category is where succession relating to the office of trustee is specifically provided for by the founder and that too so long as the scheme of such succession is in force. In contrast to the criteria engrafted in Section 6(22), the definition in
Section 6(11) lays special and specific emphasis on the succession to the office of trustee of a religious institution devolving by any one of the three months or manner envisaged therein. So far as the case on hand is concerned, the statutory authorities specially constituted under the Act have held the temple to be for all the worshipping Hindu Public and not confined to the members of the Sabha only having regard to the manner in which funds were collected and the manner in which the public invitations and declarations have been made and day-to-day administration of the temple is being carried on from inception. Though there has been an application for declaration of the office of trustee of the religious institution to be a hereditary one, no application under Section 63(a) for a declaration as to whether the temple in question is a religious institution used as a place of public religious worship and dedicated to or for the benefit of or used as of public religious worship and dedicated to or for the benefit of or used as of right by the Hindu community or section thereof was filed. Even after specific findings by the statutory authorities as to the character of the institution conspicuous omission in this regard disentitled the respondent Sabha to incidentally or vaguely project that it is for the members of the Sabha only. Once it is a religious institution within the meaning of the Act, the provisions of the Act have full force and effect and the claim of the nature, unless substantiated as provided for under the statute cannot be countenanced on certain assertions made which were besides such statutory provisions. This Court highlighted this aspect of the matter in the decision reported in D.Srinivasan v. Commr.
12. At this juncture, it is relevant to point out
Section 6 (11) of Tamil Nadu Hindu Religious & Charitable Endowments Act 1959 (Tamil Nadu Act 22 of 1959), which is extracted hereunder.
"Heredictary trustee" means the trustee of a religious institution, the succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by the founder, so long as such scheme of succession is in force."
13. As per the above decision of the Honourable Supreme Court and the definition of
Section 6 (11) of the Act, it is clear that the third defendant society cannot be recognised as a ''Heredictary trustee" within the meaning of Sectin 6 (11) of the Act since the third defendant society was not the founder of the Makaliamman Temple and they have only contributed some funds and maintained it for the worship of the people of that area. Mere contribution of funds and putting up a construction of the temple will not confer any right of trusteeship to the third defendant sangam. The third defendant cannot assert right of title over the time to its members only and such a declaratory right sought for by the third defendant Sangam ought not to have been granted by the defendants 1 and 2. Once the temple is held to be a religious institution within the meaning of the Act, the provisions of the Act have full force and effect and the claim of the nature, unless substantiated, as provided for under the statute, cannot be countenanced on certain assertions made by the third defendant which were besides such statutory provisions. The Court below has rightly considered all the above factors and decreed the suit filed by the plaintiffs and this Court do not find any other reason to interfere with the same. Accordingly, the suit is dismissed. No costs.
25.11.2009 Index : Yes / No Internet : Yes / No ogy To The learned VII Assistant Jude, City Civil Court, Madras, B.RAJENDRAN, J.
ogy A.S. No. 948 of 1995 25.11.2009