The Commissioner, Hindu Religious and Charitable Endowments Administration Department, Chennai and the Assistant Commissioner, Hindu Religious and Charitable Endowments Administration Department, Chennai, who figured as the defendants in O.S.No.4429 of 1989 on the file of the V Assistant Judge, City Civil Court, Chennai are the appellants herein. Sree Ayyappa Baktha Sabha represented by its Secretary K.V.Thangappan Nair, the plaintiff in the above suit, is the respondent in this appeal.
2. The respondent/plaintiff filed a petition before the Deputy Commissioner of Hindu Religious and Charitable Endowments Administration Department, Chennai in O.A.No.4/1984 under Section 63(a) of the Tamil Nadu Act 22 of 1959 for getting a declaration that Sree Ayyappa temple constructed by the respondent/plaintiff sabha in the property bearing New No.45, (Old No.28), Sir Madhavan Nair Road, Madhavan Nair Colony, Nungambakkamm, Madras-600 034 was not a Hindu public religious institution coming under the purview of the said Act and that it was a private temple which came into existence for the benefit of the members of the Sabha. The said application was filed pursuant to the steps taken by the officials of the H.R. & C.E. department to bring the temple under the control of the department. It had been prayed in the said application that the suit temple should be declared as a private temple not coming under the definition of section 6(20) of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959, (Act 22 of 1959). After enquiry in the said original application O.A.No.4/1984, the Deputy Commissioner, H.R & C.E. Administration Department, Chennai passed an order with the following observation:-
"Although the petitioner sabha is maintaining a temple in which public religious worship exists, if there is no public dedication, it has to be concluded that the Ayyappa temple situated in the private land of Sree Ayyappa Baktha Sabha, Madhavan Nair Road, Madhavan Nair Colony, Nungambakkamm, Madras-34 has not been dedicated for the benefit of or use as of right by the Hindu community or any sections thereof as a place of public religious worship."
The said order was passed by the Deputy Commissioner, H.R. & C.E. Administration Department on 10.03.1987.
3. As against the said order of the Deputy Commissioner, H.R. & C.E. Administration Department, as it is quite natural, no third party filed an appeal. However, the first appellant/first defendant, namely the Commissioner, H.R. & C.E. Administration Department, Chennai, exercising his power of suo motu revision under Section 69(2) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, issued necessary notice on the suo motu revision to the respondent/plaintiff sabha. In spite of the objections raised by the respondent/plaintiff sabha placing materials in support of its case, the Commissioner, H.R. & C.E. Administration Department rejected the contentions of the respondent/plaintiff sabha, found fault with the order passed by the Deputy Commissioner, H.R. & C.E. Administration Department in O.A.No.4/1984, set aside the order of the Deputy Commissioner, H.R. & C.E. Administration Department passed in O.A.No.4/1984 and held that Sree Ayyappa temple situated at No.45, Madhavan Nair Road, Madhavan Nair Colony, Nungambakkam was a Hindu public religious institution as contemplated under Section 6(18) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
4. As against the said order of the Commissioner, H.R. & C.E. Administration Department dated 13.01.1989, the respondent/plaintiff filed a statutory suit under section 70(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 in O.S.No.4229/89 and prayed that the said order should be set aside and the suit temple should be declared a private temple not coming under the definition of religious institution as contemplated under
section 6(18) of the said Act. The suit was resisted by the appellants herein/defendants. The written statement was filed by the first appellant/first defendant and the same was adopted by the second appellant/second defendant. In the said written statement it was contended that the suit temple, viz., Sree Ayyappa temple, situated at No.45, Madhavan Nair Road, Madhavan Nair Colony, Nungambakkamm, Chennai satisfied the ingredients of Hindu public religious institution as contemplated under
section 6(18) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and that hence the suit should be dismissed.
5. It is the contention of the respondent/plaintiff that the objects of the plaintiff sabha are secular in nature, viz: "the spread of the cult of Sree Ayyappa which means universal brotherhood; arranging discourses and lectures; propagating the idea of charity by providing scholarships and other assistance to deserving students; feeding of poor; establish and run educational institutions; promoting tourism; providing medical assistance to needy and the poor; constructing halls, buildings etc.; to propagate the ideas of the sabha and establishing and running libraries containing books of all faiths"; that the membership of the sabha was open to all persons irrespective of caste, creed or religion and that hence the Society cannot be construed to be confined to any religion or community. It was also the contention of the respondent/plaintiff that the suit temple, namely Sree Ayyappa Temple, was built by the respondent/plaintiff society in a private land belonging to the sabha and that the construction of the temple was made only with the contributions made by the members of the sabha; that 10% of the members of the plaintiff sabha are Muslims, Christians and persons other than Hindus; that the admission to the temple for offering worship was reserved and that it was not open to all the members of the Hindu community to enter the premises and offer worship as a matter of right. It had also been averred in the plaint that a warning, to the effect that the temple was not open to all the members of Hindu community to offer worship in the suit temple as a matter of right, had been prominently displayed at the entrance of the temple from the very inception of the temple; that Sree Ayyappa temple is not a Hindu Public religious institution as defined in
Section 6(18) read with
section 9(2) of the said Act; that it was not a place of public worship where members of public could offer worship or have access or entry as of right; that the temple was not dedicated to or endowed to general public, much less to members of Hindu community for offering worship as of right; that the entire property including the suit temple stood vested with the plaintiff sabha; that Sree Ayyappa temple was not a public religious institution to attract the provisions of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959; that the suit temple was a private temple belonging to the respondent/plaintiff sabha in respect of which Hindu public or a section thereof did not have any right of entry and worship and that the suit temple was nothing but a private temple, to which the provisions of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 would not apply.
6.Per contra, the appellants/defendants had contended in their written statement that the suit was bad for non-service of notice under section 80 CPC; that Sree Ayyappa temple had been treated as a separate entity by the respondent plaintiff and as such the objects of the sabha had nothing to do with the character of the temple; that the declaration granted by the Deputy Commissioner, H.R. & C.E. Administration Department, Madras in his order dated 10.03.1987 made in O.A.No.4/1984 to the effect that the suit temple would not come under the definition of
section 6(20) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 was not sustainable; that hence the first appellant, namely the Commissioner, H.R. & C.E. Administration Department, Chennai in exercise of his suo motu revision power under section 69(2) of the Act rightly invoked such power and decided to revise the order and that the ultimate order of the Commissioner, H.R. & C.E. Administration Department, Madras passed on 30.01.1989 in S.M.R. No.13/1988 setting aside the order of the Deputy Commissioner, H.R. & C.E. Administration Department, Madras dated 10.03.1987 made in O.A.No.4/1984 and consequently rendering a finding that the suit temple was a Hindu public religious institution as defined under the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 could not be successfully assailed as infirm or erroneous. It had also been contended therein that the land over which the temple had been constructed had been obtained by way of gift settlement; that the temple was constructed out of the donations received from the public; that the Hindu public were entitled to offer worship in the suit temple as of right; that the temple itself had been constructed based on the model of Sree Sabarimala Ayyappan temple; that as it would be done in respect of Hindu temples Kumbabishekam was also performed on 28.03.1974 for the suit temple; that poojas were performed in the suit temple by Namboodhiris; that Theerthavari (Aarattu) was also performed once in a year taking the deity to the sea and that separate accounts were maintained for the income and expenditure of the temple administration and for the sabha. It was contended further that the temple was maintained out of collection of fees levied for the performance of special archanas and sevas etc.; that the worship had been offered in the temple by unascertained public, which would clearly show that the public had a right to offer worship and that the temple had been dedicated to public for worship; that the suit temple would answer the characteristics of the public religious institutions as per
section 6(20) read with section 6(18) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959; that the order passed by the Commissioner, H.R. & C.E. Administration department after considering all the aspects, could not be assailed and that hence the suit should be dismissed.
7. Based on the above said pleadings, the learned trial judge framed three issues, which are as follows:-
i)Whether the order of the Commissioner, H.R. & C.E. Administration Department dated 30.01.1989 made in Suo Motu Revision No.13/1988 is liable to be set aside?
ii)Whether Arulmighu Ayyappa temple concerned in the suit is a temple defined under Tamil Nadu Act 22 of 1959? and
iii) To what other reliefs the plaintiff is entitled?
8. Four witnesses were examined as P.Ws.1 to 4 and forty two documents were marked as Exs.A1 to A42 on the side of the respondent/plaintiff and one witness was examined as D.W.1 and no document was marked on the side of the appellants/defendants.
9. The learned trial judge, at the conclusion of the trial, heard the arguments advanced on either side, considered the pleadings and evidence in the light of the points urged in such arguments and, upon such consideration, came to the conclusion that the character of the suit temple was rightly decided by the Commissioner, H.R. & C.E. Administration Department as a Hindu Public Religious institution found in
section 6(20) read with section 6(18) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. The trial Court also held that the contention of the respondent/plaintiff that the suit temple was a private temple not coming under the scope of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 had got to be countenanced. Based on the said findings, the learned trial Judge by judgment and decree dated 09.09.1993 decreed the suit O.S.No.4229/89 filed by the respondent herein/plaintiff.
10. The said decree of the trial court is challenged in the appeal filed in accordance with the enabling provision found in section 70(2) of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 on various grounds set out in the memorandum of appeal.
11. The arguments advanced by Mr.M.R.Murugesan, learned Special Government Pleader (H.R. & C.E.) appearing for the appellants and the arguments advanced by Mr.T.L.Rammohan, learned senior counsel for the respondent were heard. Materials available on record were perused.
12. The points that arise for consideration in this appeal are:-
i)Whether the suit temple is not a Hindu temple?
ii)Whether the suit temple is a private temple belonging to the respondent/plaintiff sabha which does not come under the purview of Tamil Nadu Act 22 of 1959? and
iii)Whether the court below has committed an error in holding that the order of the Commissioner, H.R. & C.E. Administration Department dated 30.01.1989 made in Suo Motu Revision No.13/1988 is liable to be set aside?
13. The Commissioner, Hindu Religious and Charitable Endowments, Administration Department, Chennai 34 and the Assistant Commissioner, Hindu Religious and Charitable Endowments, Administration Department, Chennai 34 , who figured as the first and second defendants respectively, in the original suit (O.S.No.4229 of 1989) are the appellants herein. Sree Ayyappa Baktha Sabha, represented by its Secretary, which figured as the plaintiff before the Court below is the respondent herein. The suit was one filed under Section 70(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Act 22 of 1959).
14. Sree Ayyappa Baktha Sabha viz., the respondent/plaintiff, is a registered society. A pious and charitable woman, namely, Lady Madhavan Nair donated a land measuring about three grounds to the respondent/plaintiff Sabha by a deed of settlement dated 30.04.1974. In the said land bearing old Door No.28, New Door No.45, Sir Madhavan Nair Colony, Nungambakkamm, Chennai 34, the respondent/plaintiff Sabha constructed a temple for Lord Sree Ayyappa with a typical temple architecture of Kerala and in accordance with the Agama Sastras, employing Late Sri Kaniapayyoor Sankaran Namboodripad, a well known temple Architect of Kerala and renowned exponent of Agama Sastras. The nature of the said temple is the subject matter of the suit from which the appeal has arisen.
15. According to the respondent/plaintiff Sabha, the said temple does not come under the definition of public religious institution under
<act id=qLGwPokB_szha0nW-c_8 section=6>Section 6(18) </act>of Tamil Nadu Act 22 of 1959 and hence, the Tamil Nadu Hindu Religious and Charitable Endowments Department authorities do not have, and cannot exercise, any control over the management of the same. Per contra, the appellants contend that the suit temple viz., Sree Ayyappa temple is one constructed over a land donated by a person, who was not a member of the respondent trust; that the temple was constructed using the contributions collected from the members of the Sabha and also from the donations received from the public; that the temple has been built with the features of Hindu temple in accordance with Agama Sastras; that besides the idol of Sree Ayyappa, the chief deity, idols of Valli Deivanai, Malligai Purathama Devi and Vinayaka etc., have also been installed therein, which would show that the temple is a religious institution; that a board has been exhibited to the effect that non-Hindus are barred entry into the temple; that the temple has been left open for being worshipped by all the devotees of Lord Ayyappa, who are essentially Hindus; that Lord Ayyappa himself is a Hindu god; that the Hindu public come and offer worship there, as of right and that therefore, the suit temple , namely, Sree Ayyappa temple at Old Door No.28, New Door No.45, Sir Madhavan Nair Colony, Nungambakkam, Chennai 34 is nothing but a Hindu Public temple, which comes under the definition of Hindu Public Religious institution found in
<act id=qLGwPokB_szha0nW-c_8 section=6>Section 6(18) </act>of Act 22 of 1959.
16. The contention of the respondent/plaintiff Sabha is two fold. The first contention is that Ayyappa worship is a particular cult transcending barriers of caste, religion and sections thereof; that the respondent/plaintiff society itself was established with the object of spreading the cult of Sree Ayyappa viz., universal brotherhood among all persons irrespective of caste, creed or religion and for other secular charitable purposes and that therefore, Sree Ayyappa temple constructed and managed by the respondent/plaintiff Sabha cannot be termed a Hindu temple to bring it within the ambit of the definition of Hindu Public Religious institution. The second contention of the respondent/plaintiff sabha is that Sree Ayyappa temple situated at Old Door No.28, New Door No.45, Sir Madhavan Nair Colony, Nungambakkam, Chennai 34, is a private temple belonging to the respondent/plaintiff Sabha, in which its members alone have got a right of entry and that though the other devotees of Ayyappa (non-members of the Sabha) are permitted to offer worship on payment of entry fee, the respondent/plaintiff sabha retains a power to deny entry to any non-member.
17. In short, the two contentions made by the respondent/plaintiff sabha are:- 1) Sree Ayyappa temple is not a Hindu Religious Institution and 2) Sree Ayyappa Temple is a private temple belonging to the respondent/plaintiff Sabha. The correctness of both the above contentions of the respondent/plaintiff is disputed by the appellants/defendants. According to them, the suit temple is a Hindu temple and a public temple as well since it was constructed using the donations collected from the public and left open to be worshipped by Hindu Public without confining the right of entry to defined persons.
18. The dispute arose when the Assistant Commissioner, Hindu Religious and Charitable Endowments, Administration Department, Chennai 34 , namely, the second appellant proposed to seal the Hundis that were allegedly placed in the temple to enable the devotees to place their offerings and thus making an attempt to bring it under the control of the Hindu Religious and Charitable Endowments Department, on the premise that it is a public temple to which the provisions of Tamil Nadu Act 22 of 1959 apply. Pursuant to the said attempt, the respondent/plaintiff Sabha approached the Deputy Commissioner, Hindu Religious and Charitable Endowments, Administration Department, Chennai under Section 63(a) of Act 22 of 1959, for an order declaring that the suit temple is not a Hindu Public Religious institution. The Deputy Commissioner took the application thus filed by the respondent/plaintiff Sabha, on his file as O.A.No.4 of 1984 and after enquiry, decided the issue in favour of the respondent / plaintiff sabha. The first appellant, viz., the Commissioner, Hindu Religious and Charitable Endowments, Administration Department, Chennai 34, in exercise of his suo motu power of revision under Section 69(2) of Tamil Nadu Act 22 of 1959, issued notice to the respondent/plaintiff in suo motu Revision No.13 of 1982 and after hearing, took a view that the Deputy Commissioner had passed an erroneous order, set aside the order of the Deputy Commissioner dated 10.03.1987 made in O.A.No.4 of 1984 and declared Sree Ayyappa Temple situated at Old Door No.28, New Door No.45, Sir Madhavan Nair Colony, Nungambakkamm, Chennai 34 to be a religious institution as defined in
Section 6 (18) r/w. 6/20 of Tamil Nadu Act 22 of 1959.
19. Aggrieved by the said order, challenging the same as erroneous and praying for an order to set aside the order of the first appellant dated 30.01.1989 made in suo motu R.C.No. 13 of 1988, the respondent/plaintiff had filed the suit under Section 70(1) of the Hindu Religious and Charitable Endowments, Administration Department Act, 1959. In order to prove its case, the respondent/plaintiff Sabha examined four witnesses as Pws 1 to 4 and produced 42 documents as Exs.A1 to A42. The appellants /defendants relied on the oral testimony of the sole witness examined on their side viz., DW1 without producing any documentary evidence. As a Court of first appeal, this Court has to consider and re-appreciate the evidence.
Point No.1:-
20. Thangappan Nair, the Secretary of the respondent/plaintiff Sabha has deposed as PW1. It is his evidence that there is no restriction on the ground of religion to become a member of the plaintiff sabha and that every one who believes in the cult of Ayyappa can become a member. It is also his evidence that the membership of the respondent/plaintiff Sabha consists of not only Hindus, but also Christians and Muslims. However, in his evidence he would admit that only a minority constituting 10% of the members are non-hindus. It is his further evidence that no donation from public was received for the construction of the temple and the donations made by the members and their friends alone were used for constructing the temple. He has specifically denied the contention of the appellants that a board has been displayed to the effect that non-hindus should not enter the temple. He has stated that they have put up a writing in front of the temple that right of admission is restricted. It is an admitted fact that the office of the respondent/plaintiff Sabha is located on the backside of the temple. A suggestion was made to PW1 to the effect that the said sign board was meant for indicating that the right of admission to the office of the Sabha alone was restricted and the right of admission to the temple was not restricted. Such a suggestion was stoutly denied by PW1.
21. PW2 is one Gabriel. He has been examined to show that despite being a Christian, he remains a member of the respondent/plaintiff Sabha and he is also offering worship in the suit temple, namely, Sree Ayyappa Temple. Through him also it is sought to be proved that the entry to the temple to offer worship to Lord Ayyappa is not restricted to members of a particular religion viz., Hindu religion; that irrespective of the religion to which they belong people are allowed to enter the temple and offer worship after getting specific permission. Similarly one J.M.Naji, who claims to be a Christian and at the same time a member of the respondent/plaintiff Sabha, has been examined as PW4. His evidence is similar to that of PW2. Sadhanadhan S/o.Krishnan has been examined as PW3 to show that he is a regular visitor to the suit temple and he has seen people belonging to other religions also coming there and offering worship. From the testimonies of Pws 1 to 4, it is made clear that the membership of the respondent/plaintiff Sabha is open to persons other than Hindus also and that persons other than Hindus are also permitted to offer worship to the deities in the suit temple. From the above evidence, it is quite obvious that the membership of the respondent/plaintiff sabha is open to persons professing religions other than Hindu also. In fact from the evidence of Pws 1 and 2 and Ex.A39, the Membership Register, it is obvious that Christians and Muslims are also inducted as members of the respondent/plaintiff. Respondent / plaintiff Sabha has also been registered as a Society under the Societies Registration Act, as evidenced by Ex.A9 Therefore, the contention of the respondent/plaintiff that the respondent /plaintiff Sabha is a society transcending the barriers of religion, caste, creed etc., is well founded and stands established.
Point Nos. 2 and 3:-
22. But the question involved in this case is not whether the respondent/plaintiff sabha is a Hindu Religious institution or a society meant for Hindus alone and on the other hand the question involved in this case is "whether Sree Ayyappa Temple situated at Door No.28, New Door No.45, Sir Madhavan Nair Colony, Nungambakkamm, Chennai 34, admittedly constructed by the plaintiff society, is not a Hindu temple as contended by the respondent/plaintiff?" The respondent/plaintiff has raised the above contention on the strength of the plea that the society itself is not meant for Hindus alone and all the members of the society, including Christians and Muslims, do have a right to offer worship in the suit temple and that Sree Ayyappa worship is a different and distinct cult which does not come within the definition of any religion and hence the temple cannot be construed to be Hindu Temple. In support of the contention of the respondent/plaintiff, the learned Senior Counsel relied on the following judgments:
1)1952 (1) MLJ 282, The Commissioner for Hindu Religious Endowments Board, Madras V. Sri. Vijanayakar Arudra Tiruppani Sabha, Madras
2)1960 II MLJ 591, The State of Madras by the Secretary, Revenue Department, Madras and another V. The Urumu Seshachalam Chettiar Charities, Tiruchirappalli by its Board and Trustees and others
3)1974 (1) MLJ 174, S.Kannan and others V. The All India Sai Samaj (Registered) by its President, D.Bhima Rao, Mylapore
4)(2001) 2 M.L.J. 211, The Commissioner, H.R & C.E (Admn) Department, Madras V. N.A.Ramaswamy Chettiar and another.
23. In Sri. Vijanayakar Arudra Tiruppani Sabha case, a Division Bench of this Court dealt with a question as to whether a resolution passed by a registered society to the effect that the object of the society was to perform Arudra Archanai, Abishekam and Tirupavadam every year, on the day of Arudhra Darsanam in the month of Margali, to Sri Vinayagar installed in any temple in the locality or any other place within or without the city of Madras, as the members may by a majority decide year after year, shall constitute a specific endowment in favour of a religious institution. In that case, it was held that there was no specific endowment of the entire or part of the income of the property owned by the society for any specific religious charity ; that there was no divesting of ownership even regarding the income and there was nothing to prevent the society from changing its objects and that hence the same could not be construed to be a specific endowment. The facts of the case on hand is different and the issue involved is also different. Hence the said decision has no application to the case on hand.
24. In Urumu Seshachalam Chettiar Charities, Tiruchirappalli case cited second above, the question involved was not whether a temple established by the charities was a Hindu Religious Institution or not. One of the objects of the said trust reads as follows: -
"The trustees may, for the purpose of carrying out the trust, acquire the Urumu Dhanalakshmi Vidyalayam and the Urumu Seshachalam Chetty Hindu Orphanage and similar other institution, conduct those institutions and make all necessary additions, alternations and improvements for the all round expansion of the trust".
Hence, it was sought to be projected as clear intention to benefit Hindus alone. But the Division Bench held that the same could not be interpreted to mean that the benefit was sought to be conferred exclusively on Hindus constituting a Hindu Public Charitable endowment.
25. In the said case, it has been held that to bring an endowment within the purview of the Hindu Religious and Charitable Endowments Act, it shall not be enough that such an endowment is intended to benefit the public so that it can be termed a Charitable Endowment, but the same must be a Hindu Public Charitable endowment. The said judgment was rendered on the interpretations of
Sections 3,6 (4) and 6(14) of the previous Act, viz., Madras Hindu Religious and Charitable Endowments Act, 1951 (Act XIX of 1951) which was subsequently replaced by the present Act, viz., Act 22 of 1959. However, the principle laid down therein very well applies to the Public Charitable institutions under the present Act also. In
Section 3(1), the term Public Charitable Endowment is specifically prefixed by the word Hindu or Jain. Therefore, it is quite obvious that all public Charitable Endowments cannot be brought under the purview of Act 22 of 1959. Only those public Charitable Endowments which are Hindu or Jain can be brought under the Purview of Act 22 of 1959.
26. The other judgment viz., Commissioner, Hindu Religious and Charitable Endowments Vs. N.A. Ramasamy does not deal with the question as to whether a place of worship is a Hindu temple or not. On the other hand, whether an object provided in a settlement constituted a specific endowment was the issue involved in the said case. Therefore, the same is not applicable to the case on hand.
27. Reliance is also placed on the order of this Court in S.Angamuthu Pillai and Others V. Govindarajoo Mudaliar (since deceased) and others reported in 2008 2 MLJ 980. It was a case in which a scheme was framed by the Court regarding the management of the properties of the trust and for the fulfillment of the objects of the trust. As per the scheme decree certain rights were to be performed in connection with the "Muneeswarar Temple" popularly known as "Body Guard Muneeswarar Temple". It was sought to be contended on behalf of the officials of the Hindu Religious and Charitable Endowments Department that the entire properties of the charities were liable to be brought under the control of the Hindu Religious and Charitable Endowments Department. In that case, it was held that the charities was a composite one consisting of religious and secular character and simply because some rites are to be performed in connection with a temple as per the scheme decree, the Hindu Religious and Charitable Endowments Department could not make an attempt to extend the Act to the whole institution of the charities. The said judgment is also not helpful to the respondent/plaintiff Sabha.
28. A Judgment of another Division Bench of this Court in S.Kannan and others V. The All India Sai Samaj (Registered) by its President, D.Bhima Rao, Mylapore, cited as the third case above, is the one on which strong reliance has been placed by the learned senior counsel for the respondent to show that the suit temple is not a religious institution as defined in Section 6 (18) of Tamil Nadu Act 22 of 1959. The Division Bench came to the conclusion that the Sai Mandir at Mylapore was not a Hindu Religious Institution as defined under
Section 6(18) of the Act. The Division Bench referred to an observation made in "The State of Madras by the Secretary, Revenue Department, Madras and another V. The Urumu Seshachalam Chettiar Charities, Tiruchirappalli" reported in 1960 II MLJ 591 wherein Justice Balakrishna Ayyar.J., had held that the Act was intended to apply to Hindu Religious institutions and endowments and Hindu Charitable institutions and endowments; that the omission to employ the expression "exclusively" was of no consequence; that the introduction of such qualifying word was unnecessary as it would have caused confusion and controversy in other places of the Act and that the expression Hindu Temple was plain enough. Following the said view, the Division Bench in Sai Samaj case, held that sai samaj was not a Hindu Religious institution. The Division Bench observed that the materials produced in the said case would amply demonstrate that Sai mandir was not a place of public religious worship dedicated solely to the members of the Hindu community and hence the Act was not applicable to it.
29. Placing reliance on the observations of the Division Bench in the above said case, the learned senior counsel appearing for the respondent /plaintiff has vehemently argued that the respondent/plaintiff having proved that its membership consists of Non-hindus also and the temple established by the plaintiff Sabha cannot be said to be a Hindu religious institution and that the ratio decided in Sai Mandir case should be applied to the case on hand to hold that Sree Ayyappa Temple situated at Old Door No.28, New Door No.45, Sir Madhavan Nair Colony, Nungambakkam, Chennai 34 is not a Hindu temple and it is a temple which trancend all religious, caste and race barriers. The said contention cannot be countenanced since the facts are different. In Sai Mandir case, worship of no particular deity or Hindu gods had been noticed. Idols of Hindu deities were not placed in Sai Mandir and no pooja as done in Hindu temples to the deities were performed in the Mandir. That is the reason why the Division Bench came to the conclusion that Sai Mandir was not a Hindu Religious institution. The facts of the case on hand are different.
30. Further more, in the case on hand, it is not the contention of the appellants that the respondent/plaintiff Sabha, which is a registered society, is a Hindu Public Religious Institution or endowment or Hindu Public Charitable endowment. The Department does not propose to bring the Sabha under its control as a religious institution or a Hindu Charitable Endowment. On the other hand, the contention of the appellants is that the suit temple Sree Ayyappa temple located at Old Door No.28, New Door No.45, Sir Madhavan Nair Colony, Nungambakkam, Chennai 34 , though established by the plaintiff Sabha, is a Hindu temple. Whether it is a public temple or private temple is a question which can be discussed at a later part of this judgment. Whether it is a Hindu Temple is the first and foremost question to be decided.
31. There are overwhelming evidence adduced on the side of the plaintiff itself that the suit temple was constructed following the structural specifications of Sree Ayyappa Temple at Sabarimalai, Kerala. It has also been admitted by the plaintiff that the temple was constructed by Late Sri Kaniapayyoor Sankaran Namboodripad. It is also not only admitted but specifically averred by the plaintiff in the plaint itself that Late Sri Kaniapayyoor Sankaran Namboodripad, a well known temple Architect of Kerala and renowned exponent of Agama Sastras, was requested to draw the plan for the building to house the private temple and that the Gopuram has been built according to typical temple architecture of Kerala. It has also been admitted that the chief deity of the temple is Lord Ayyappa. It is also not in dispute that day-to-day poojas are performed by four Namboodries, which conforms to the pattern and style followed in Kerala temples. It is also an admitted fact that besides the idol of Lord Ayyppa, idols of other deities, namely Valli Deivanai, Maligaipurathamma Devi and Vinayaga have also been installed in the temple. PW1 also admits that after construction of the temple, Kumbabishekam was conducted. It is also his admission that the Karpa graha has been made to resemble the same found in other Hindu temples. It is also his admission that poojas are done in the suit temple in the same way in which poojas are done in the Hindu temples in Kerala. As per his evidence, early morning pooja at 4.00a.m. followed by flower abishekam, then Ganapathi homam and other abishekams are being done. Sripalli pooja, Ucha Pooja, again Sripali pooja, evening pooja at 5.00 p.m., evening Deeparadhana at 6.30p.m., pooja at 8.00 p.m. in the evening and Sripalli pooja at 9.00 p.m. are the regular poojas done in the suit temple and on auspicious days, apart from the regular poojas, other poojas are also being conducted.
32. It is an admission made by PW1 that adjoining the suit temple, there is a Guruvayurappan temple and only a chain provided in between those two temples demarcate their common boundary. It is also his admission that near Guruvayurappan sannidhi there are Navagrahas. The said admission of PW1 would show that besides Ayyappa sannidhi in the suit temple, there are Guruvayurappan sannidhi and a sannidhi for Navagrahas, all within the property of the plaintiff Sabha. The said inference is strengthened by the further admission of PW1 that the Counter for issuing tickets for Abishekam for all the deities is located on the south of Guruvayurappan sannidhi. His evidence in cross examination also shows that there are sannidhis for Ayyappa, Muruga and Guruvayurappa and other deities. It is not the case of the plaintiff that any member, irrespective of the religion to which he belongs, can perform poojas in the suit temple. It is also not the case of the plaintiff that even the members of other religions, after having become members of the plaintiff Sabha, shall be allowed to perform pooja. On the other hand, it is a categorical admission made by PW1 that daily poojas are performed by Namboodhiris and six Namboodhiris are there in the suit temple. It is also a clear admission made by the plaintiff in the plaint and also in the evidence of PW1 that all the rituals that are followed in Sabarimalai Ayyappan temple in Kerala are being followed in the suit temple.
33. It is not the case of the plaintiff, and even if it is so the same cannot be accepted, that Sabarimalai Ayyappan temple is not a Hindu temple or Lord Ayyappa is not a Hindu god. The plaint itself contains an averment that Lord Ayyappa is considered to be the product of the union of Lord Shiva and Lord Vishnu, when Vishnu attained the form of 'machini' and that hence, the cult of Ayyappa worship is the culmination of the combination of Saivite and Vaishnavite forms of worship. From all the factors discussed above, it can be authoritatively held that the contention of the plaintiff that Sree Ayyappa temple at New No.45, (Old No.28), Sir Madhavan Nair Road, Madhavan Nair Colony, Nungambakkamm, Madras-600 034 is not a Hindu temple, cannot be countenanced. It is also a known fact and a fact admitted by PW1 that the Ayyappa temple in Sabarimalai, Kerala belongs to Kerala Devaswam Board. In fact, there is also an admission by PW1 that the plaintiff does not deny the fact that the suit temple is a Hindu temple and on the other hand, the plaintiff's case is that Sree Ayyappa temple, a Hindu temple, is not a public temple to come within the purview of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, as there is no dedication of the same to the public and the public do not have a right of entry and worship and that the right of entry and worship is restricted to the members of the plaintiff Sabha, whereas the others can come and offer worship only with the permission of the plaintiff Sabha. The said contention, containing such an admission, itself is an answer to the contention made by the learned senior counsel for the respondent that Sree Ayyappa temple at New No.45, (Old No.28), Sir Madhavan Nair Road, Madhavan Nair Colony, Nungambakkamm, Madras-600 034 is not a Hindu temple and hence, Tamil Nadu Act 22 of 1959 shall not be applicable. The mere fact that the residents of a village inhabited by members belonging to different religions, join together in constructing a temple, a church or a Dargah and their participation in the poojas and rituals of those institutions will not make them all the more irreligious or secular. In Tamil Nadu, we do have a number of Christian shrines (for example Velankanni Chruch), that are visited by people cutting across the religious barrier to offer worship. Similarly, Nagore Dargah is visited by non-Muslims also. The simple fact that people having faith in other religions offer their worship or prayer in such institutions, will not make those institutions a non-religious or secular. There are also instances wherein by custom Muslims of a Village or Christians of a Village are given Mandagapadi rights in the festivals and the right to make the first offering or to receive the first honour in some Hindu temples. In respect of festivals of Muslims, say for an example, the "urus" (Sandhana Koodu) festival at Nagore Dargah, some important roles are given to Hindus of a particular area. Similar is the case of festivals in Churches. Simply because such privileges, honours or rights are conferred on persons belonging to other religions, a Mosque or Dargah does not become a non-religious or secular institution and a Church does not become a non-christian or secular institution. Same is the case of a temple. Therefore, by no stretch of imagination, the suit temple viz., Sree Ayyappa Temple situated at New No.45, (Old No.28), Sir Madhavan Nair Road, Madhavan Nair Colony, Nungambakkamm, Madras-600 034 can be termed a non-hindu temple or a secular institution, simply because the same was constructed by the plaintiff Sabha, of which 10% members are non-hindus.
34. For all the reasons stated above, this Court hereby comes to the conclusion that the contention of the plaintiff that the suit temple is not a Hindu temple, irrespective its character as private or public temple, cannot be countenanced and the said argument advanced on behalf of the plaintiff deserves rejection as untenable.
35. In the foregoing discussions, we have seen that the suit temple is a Hindu temple. The next question to be considered is whether it is a private temple as contended by the plaintiff or a public temple as contended by the defendants. If it is a private temple as contended by the plaintiff, then the provisions of Act 22 of 1959 shall not be attracted. A private temple can be equated to a pooja room in a private house, wherein there is no dedication of the temple to the public or a section thereof and the public cannot have a right of entry and worship without the permission of the owner. If the entry of others is restricted and regulated by such persons, then it can be said that there is no dedication of the temple to the public or a section thereof and hence the temple's public character has to be ruled out and the private character of the temple has to be upheld. In this case, besides making clear pleading that the suit temple is a private temple owned by the plaintiff Sabha and the right of entry and worship is available to members of the plaintiff Sabha alone without any restriction; that the others having faith in the Ayyappa cult are permitted to offer worship in the suit temple, but they do so only with the permission of the plaintiff Sabha and that the plaintiff Sabha retains its right to deny access to the temple to any person, who is not a member of the plaintiff Sabha, it has also been pleaded in clear terms and evidence has been adduced in support of such plea to the effect that a signboard has been exhibited at the entrance, which reads "Right of Admission Restricted". There is no contra evidence from any other worshipper, who is not a member of the plaintiff Sabha to the effect that he or other Hindu public are having right of entry into the temple and can offer worship in the temple as of right. There is no independent witness to speak about such rights exercised by the persons who are not members of the plaintiff Sabha or that admission to the temple is not restricted as claimed by the plaintiff. Under such circumstances, this Court is of the view that the contention of the plaintiff that the mere fact that the suit temple resembles a public temple in its features as it contains Gopuram, Sthubam etc., and poojas and abishekams are conducted as it is done in public temples, shall not take away the character of the temple as a private temple, when it is pleaded and established that there was no dedication of the temple to the public and the public cannot offer worship in the temple as of right. The contention of the respondent/plaintiff, in this regard, cannot be brushed aside as one without having substance.
36. However, it is the contention of the appellants/defendants that there is an admission on the part of PW1 that Hundis had been placed at four places and tickets are issued for Abishekam and the same are indications of the fact that there was dedication of the temple to the public and the public can worship in the temple as of right. The above said contention of the learned Special Government Pleader is based on the admission made by PW1 that before 1979 Hundis had been placed at four places and in 1979, they were removed and thereafter, there is no Hundi in existence in the suit temple. Pointing out the said admission, the learned Special Government Pleader argued that when the Hindu Religious and Charitable Endowments authorities wanted to seal the Hundis, they were denied access to the temple by the members of the plaintiff Sabha; that they were sent back on the first day of their attempt and that when they made a second visit, the Hundis had disappeared. Of course, the presence of Hundis for the offerings of the devotees shall be one of the factors showing the public nature of the temple and the right of public to offer worship. But, the same is not the sole factor on which the question can be decided. When there is a clear plea and evidence that the temple had not been dedicated to the public or a Section thereof and the right of entry to the temple is restricted and the plaintiff retains its right to deny access to anybody, then the mere fact that by mistake the plaintiff's had placed Hundis which were subsequently removed, shall not be enough to hold the suit temple to be a public one. The necessary inference shall be that the plaintiff having inadvertently placed Hundis in the temple without anticipating the consequences, realized their mistake and removed the Hundis, when the Hindu Religious and Charitable Endowments authorities tried to take over the temple on the assumption that the suit temple is a public temple.
37. In this regard, except DW1, an official of Hindu Religious and Charitable Endowments Department, no member from public has been examined on the side of the appellants/defendants to prove the public character of the suit temple. Compared with such a position of the defendants' case, there is a clear plea made and evidence adduced on the side of the plaintiff that the suit temple is one not dedicated to the public or a section thereof and on the other hand, the entry into the temple to offer worship is regulated and restricted by the plaintiff Sabha. When such is the clear plea and evidence on the side of the plaintiff, which stands unrebutted by contrary evidence having more evidentiary value, this Court is of the considered view that the contention of the plaintiff that the suit temple is a private temple and not a public temple, deserves acceptance and the contrary contention of the appellants/defendants deserves rejection.
38. It is the further contention of the learned senior counsel for the respondent that the suit temple having been founded and managed by the plaintiff Sabha, which is a society registered under the Societies Registration Act, the application of the provisions of the Act 22 of 1959 should be ruled out. The said contention seems to have been made on an erroneous assumption that the temple established by a registered society cannot be identified separately from the society itself. A society is accorded a juristic personality. When an individual or a society or a collection of individuals constructs a temple, it cannot be contended that the temple and the founder (individual / association / society) are one and the same. The temple remains a private property of the individual, association or society so long as there is no dedication to the public. The owner himself cannot be identified with the property. If a company constructs a building to be used as a place of worship, it could be said that such place of worship belongs to the company. But on the other hand, it cannot be said that the property of the company and the company are one and the same. A society which may own a property can at any time dedicate that property to the public or even transfer the property to another person. A temple constructed by a society shall also be a property of the society, which is capable of being owned, possessed, alienated in favour of others and dedicated to the public. When such is the case, the contention of the respondent/plaintiff that the temple cannot be identified apart from society and that the temple and the society are one and the same cannot be accepted.
39. It is the further contention of the learned Special Government Pleader representing the appellants that even as per the case of the plaintiff Sabha, anybody who expresses faith in Ayyappa cult, can become a member of the Sabha and hence, the temple should be construed to be one constructed and owned by a section of people and that hence it is no doubt a public temple. This Court is not in a position to accept the above said contention of the learned Special Government Pleader. The mere fact that anybody can become a member of the plaintiff Sabha does not take away the unique character of the plaintiff Sabha and its juristic personality as distinct from the personality of the members constituting the Sabha. Ex.A39 is the membership Register. From the same it is obvious that they are numerically ascertainable. The total membership as per Ex.A39 is 105. The temple established by a society for the benefit of its members is to be held excluded from the purview of Act 22 of 1959, if the entry is restricted to the members of the society alone without there being any dedication to the public or conferment of right of worship to the public. The learned Special Government Pleader, has rightly pointed out that the acceptance of the plea that temples constructed by societies are outside the purview of Act XXII of 1959, will encourage the making of ingenious device by floating a society and then constructing a temple to have a conscious exclusion of the same from the purview of Tamil Nadu Act 22 of 1959. But so long as the members of the society remain a numerically ascertainable group, they cannot be prevented from having a temple of their own for their exclusive use without dedicating it to the public or a section thereof. It is for the Government and the legislature to consider the feasibility of bringing about an amendment to bring the temples established by registered societies also within the definition of public temple, if the membership of the society is open to the public without restriction.
40. For all the reasons stated above, this Court comes to the conclusion that the suit temple is a private temple belonging to the plaintiff Sabha and not a public temple and hence the provisions of Tamil Nadu Act 22 of 1959 shall not apply to the suit temple, with the consequence that the Hindu Religious and Charitable Endowments Department authorities shall not have any control over the affairs of the suit temple. The Court below has come to a correct conclusion that the order of the first appellant / first defendant viz., the Commissioner, Hindu Religious and Charitable Endowments Department holding the suit temple to be a public temple and hence a Hindu Religious institution as defined under Section 22 of 1959 cannot be sustained and that the same is liable to be set aside. But the reasons assigned by the Court below for arriving at such a conclusion are not correct. Therefore, though not for the reasons assigned by the Court below, but for the reasons assigned by this Court in the foregoing discussions, this Court comes to the conclusion that the final verdict of the Court below, holding the order of Commissioner of Hindu Religious and Charitable Endowments Department liable to be set aside, deserves to be upheld and that there is no reason to interfere with the same. Accordingly, the appeal challenging the result of the suit fails and the same deserves to be dismissed.
41. In the result, the decree of the learned V Assistant Judge, City Civil Court, Madras made in O.S.No.4229/89 dated 09.09.1993 is confirmed and the appeal is dismissed. No costs.
gpa To V Assistant Judge, City Civil Court, Madras