JUDGMENT
Prabha Sridevan, J.
1. The plaintiffs are the appellants. They claimed to be the hereditary trustees of five temples dedicated to Arulmigu Kannamadai Iyyanar, Elikuthi Iyyanar, Pillaiyar, Mariamman and Pavupattu Ammachar. These temples are located in Pavupattu village, Thiruvannamalai Taluk. They are ancient in origin. The appellants claimed to be hereditary poojaris-cum-trustees. Some time before 1977, the 3rd respondent herein who is an authority under the H.R. & C.E. Act (hereinafter referred as the “Act”) appears to have issued a direction calling upon the appellants to file a petition under Section 63 b of the Act and obtained a declaration that they are poojaris-cum-hereditary trustees. Thereupon the appellants filed O.A.No.11 of 1977 which was dismissed by the second respondent. This petition was filed under Section 63 b of the Act as aforesaid. Against that an appeal was filed under Section 69 (1) of the Act. This was dismissed by the first respondent. Therefore, the appellants filed a statutory suit under Section 70 (1) of the Act.
2. It is the case of the appellants that for four generations, their family has been performing pooja for these temples and have also been managing the temples. The lands which have been dedicated to the temples do not generate sufficient income to meet the expenses of the five temples and therefore if need arises, the appellants themselves plough in their funds to meet the expenses. The devolution of the right to perform pooja as well as manage the temples goes to the eldest son of each branch and it has so devolved till the filing of the suit by an unbroken line of succession. The inam grants are in the name of the appellants. The settlements for previous Faslis are in the name of the appellants or their predecessors. Notices under Section 9 (5) of the Tamil Nadu Minor Inam Abolition and Conversion into Ryotwari Act also shows the appellants’ rights and therefore it was prayed that they should be recognised or declared as hereditary trustees and also that the department should be injuncted from appointing any non-hereditary trustee. The claim of the appellants was rejected by the trial Court on the ground that the appellants had not impleaded the necessary parties who are the other members of the family, the appellants have not proved that they are hereditary trustees and with regard to the presumption in the case of small temples that hereditary poojaris are also the trustees. This was also rejected on the ground that there was sufficient proof of interference by the villagers in the management of the temples. The dismissal of the suit by the trial Court has resulted in this appeal.
3. The learned counsel for the appellants would submit that the findings of the trial Court are erroneous and the genealogy had been satisfactorily proved. The evidence is in favour of the appellants and it clearly shows that for four generations the family of the appellants have been poojaris and it had devolved by succession. Though there are ten acres of land, only three acres are income generating and even the annual income that is generated by such lands is not sufficient to meet the expenses of the five temples.
4. The learned counsel also pointed out to Ex. A6 which refers to the ancestors as kovil poosaris and signed by the predecessors of the appellants. Reference was made to various notices under Inam Abolition Act which refers to the appellants and the predecessors as “Tharkala Dharmakartha” which means trustees for the present. In Ex. A16 dated 04.09.1940, the appellants have been recognised as Inamdars, Exs. A5 and A6 which is the compromise decree in O.S.No.794 of 1929 prior to the present dispute which would clearly show that the appellants have been hereditary poojaris of the temples.
5. The learned counsel also drew attention to various decisions of this Court wherein it has been held that when small temples are concerned, there is a presumption that the hereditary poojaris are also trustees. The learned counsel submitted that there is no evidence on the department’s side to show that the temples have excess income or that there is an interference by the villagers in the management of the temples. The judgments relied on are:
a. The Commissioner, H.R. & C.E., Vs. Kumaraperumal Nadar (2001 (3) LW 782)
b.A.N.Ramaswami Iyer and Others Vs. The Commissioner, The Hindu Religious and Charitable Endowments (Administration), Madras and another (1975 II MCJ 178)
c. Babu Gurukkal Vs. Commissioner for H.R. & C.E. Board (1964 (1) MLJ 384)
d. Muthuswamy Vs. Aiyaswami (1964 (II) MLJ 560)
e. Chinna Andi Pandaram Vs. The Commissioner, Hindu Religious and Charitable Endowments (Admn.) Department, Madras – 3 and others (1981 (1) MLJ 206)
6. The learned Special Government Pleader for the Department would however submit that the trial Court had rightly held that the temples were not small temples since the evidence shows that an annual income of Rs.5,000/- is received by the temples. The oral evidence on behalf of the plaintiff was also referred to, which would show that the villagers have a role to play in the management of the temples and therefore the claim of the hereditary trusteeship cannot be accepted. He also submitted that all that the evidence both oral and documentary show is that the appellants are hereditary poojaris and hereditary poojariship has been abolished by Act 2 of 1971 and therefore the appellants cannot claim any right on the basis of their having performed the pooja for four generations.
7. It was also submitted that the Act itself clearly states who is a hereditary trustee and the circumstances under which such a claim can be made that the appellants do not satisfy any of those conditions, they cannot be declared as hereditary trustees. Reliance was placed on Chinna Andi Pandaram Vs. The Commissioner, Hindu Religious and Charitable Endowments (Admn.) Department, Madras – 3 and others (1981 (1) MLJ 206) in which this Court has held that
“when there is no acceptable evidence to show that the hereditary poojaris were also acting as hereditary trustees, the declaration claim cannot be granted.”
8.It is to be seen in this appeal whether the appellants have proved that they are hereditary poojaris-cum-trustees. The plaint schedule and the genealogical table show that originally one Ayyaswamy Gounder was the poojari and trustee. He had three sons viz., Krishna, Perama and Ariputra. After him, they had been performing the poojas as well as managing the temples. After them, Krishna’s eldest son Perama and Perama’s eldest son as well as Ariputra’s son had been managing the temples. At present, the eldest grandson of Krishna’s branch and the eldest grandson of Perama’s branch and the son of Ariputra had filed the suit. Pending appeal, the first plaintiff died and his first son has been brought on record as legal representative. Therefore, the genealogy has been proved satisfactorily. The evidence of the witnesses show that this family has been performing pooja for several generations.
9. P.W.1 who is the first plaintiff had referred to the devolution of the rights to the eldest son of each branch and also that at present three trustees/poojaris are managing the temples by turn. The witness has stated that the income from the lands would be about Rs.2,000/- to Rs.3,000/- per year and it is not sufficient to meet the kovil expenses and that they would use their own funds for the said management. This has not been challenged in cross-examination. It has been suggested that the lands would generate about Rs.15,000/- per year, which has been denied. The suggestion that the villagers will interfere in the management has also been denied. On the other hand, the witness has stated in cross-examination that the villagers will take part in the festivals. Of course, he has also stated that on important days, they would heed the advice of the big families of the village. He has also denied that the villagers are Kariasthars for the temples. P.W.2 who is a villager,about 64 years old has stated that to his knowledge, only this family had been taking care of the temples and the lands.
He has also stated that the appellants cultivated the lands and used the income therefrom for the performance of the pooja. He has corroborated the evidence of P.W.1 that the appellants would take charge of the temples by turn. He has categorically stated that nobody pays them any salary and that the only income is from the lands. He has also denied that there are other trustees to take care of the temples. He has clearly stated that the villagers take part in the festivals and they did not interfere.
Of course in cross-examination, he has stated that there are no dharmakarthas for the temples.
10. P.W.3, the other villager who is about 75 years also stated that this family has been performing the pooja from the income from the lands. There are no trustees and that the poojaris have no income for managing the temples. He has clearly stated that this family is looking after the temples.
As regards interference or control of the villagers, this is his evidence.
The hereditary poojariship is referred to by this witness in the following words :
11. D.W.1 is the Inspector and he has also stated that the appellants are the poojaris but they do not receive any salary. He has clearly spoken of the hereditary poojariship of the appellants’ family.
He has denied the suggestion that as far as the small temples are concerned, the poojari is the trustee.
This is the evidence with regard to the question in dispute.
12. The Act defines a hereditary trustee in the following words:
“hereditary 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 schemes of succession is in force.”
13. In A.N.Ramaswami Iyer and Others Vs. The Commissioner, The Hindu Religious and Charitable Endowments (Administration), Madras and another (1975 II MLJ 178), it was held that
“The mere fact that a community who have been hereditarily exercising the right of managing and adminstering a temple comprises a large body of individuals cannot take away from the right of hereditary trusteeship.”
So, it is not necessary to implead all the members of the family and the right claimed by the appellants is on behalf of all the individuals belonging to the family and if any of them dies, the right of trusteeship would be devolved to his heir. But the question of non-joinder was not seriously attacked in appeal and therefore the finding of the learned trial Judge that the other members of the family ought to have been impleaded is set aside. The above decision is also followed in The Commissioner, H.R. & C.E., Vs. Kumaraperumal Nadar (2001 3 Law Weekly 782). In Babu Gurukkal Vs. Commissioner for H.R. & C.E. Board (1964 (1) MLJ 384), this Court had held thus:
“Small temples in South India often have only poojaris who, by long custom or usage, look after the affairs of the temples where they serve as gurukkals; they function in a dual capacity, namely poojari cum trustee. Such a combination of offices is not necessarily opposed to public policy or contrary to law. IN the case of such small temples, there is a presumption that the pujari himself is the hereditary trustee and there is nothing illegal in the hereditary trusteeship and poojariship being combined in the same person in such small temples. When the documentary evidence including the Inam Register shows that for more than three generations the poojariship cum trusteeship in a temple was in the same family and descended from father to son and there is no evidence to show that this was not so or could not be so, the presumption is all the greater, and it must be held that the members of the family are hereditary trustees of the temple.”
14. In the above case, it was found that the small temples were endowed with some lands. It was held by this Court that the lands were not sufficient to generate income and that there is nothing illegal in the hereditary trusteeship and poojariship being combined in the same person in small temples and when the documentary evidence shows that for more than three generations the poojariship-cum-trusteeship of the temples had been in the family of the plaintiff then the plaintiff must be declared as a hereditary trustee of the temples. Reference was made in the above judgment that in Muthuswamy Vs. Aiyaswami (1964 II MLJ 560) , a Division Bench has held as follows:
“There is nothing illegal in hereditary trusteeship and pujariship being combined in the same person, especially in the case of small temples where there has been no interference or control by any of the villagers of the place. In the case of small village temples, where the temple property is of insignificant value and the income is hardly sufficient even to meet the routine expenses of the temple, if the archaka or the poojari is left in management of the temple lands and the affairs of the temple without any interference by any of the villagers for a long number of years, it has to be presumed that with the consent and acquiescence of the worshippers of the village the pujari is the trustee as well. In such a case it must be held that the poojari managing the lands and affairs has made out his right to hereditary trusteeship and the interests of the temple are not likely to suffer, when the person concerned admits that the lands are temple lands and has never set up any rights to them as his own property.”
15. The learned single Judge whose judgment was set aside by the Division Bench had observed that when the evidence is that they have been receiving income from the lands and performing daily pooja and managing temples out of the income, it would not be an evidence of the management of temples and that it only means they are functioning as archakas or poojaris. The Division Bench held that this view of the learned Judge cannot be accepted and that the strong presumption arising in favour of the plaintiff had not been rebutted at all and that
“In the case of small village temples where the temple property is insignificant value and the income is hardly sufficient even to meet the routine expenses of the temple, if the archaka or the pujari is left in management of the temple lands and the affairs of the temple without any interference by any of the villagers for a long number of years, it must be presumed that with the consent and acquiescence of the worshippers of the village the pujari is the trustee as well. This Court has been consistently taking the view that in our parts it is frequently found that the office of archaka and a manager or a trustee are found united in the same person, that is the archaka.”
16. In the present case, there is no dispute regarding the fact that the appellants had been hereditary poojaris and that the temples are small temples has also not been denied. In fact, there is a contradiction in the judgment of the trial Court. In para 13 the learned Judge finds that the temples are the small temples
In Para 23, the learned Judge comes to the conclusion that since the income generated is Rs.5,000/- per year, the presumption that the hereditary poojaris will also be hereditary trustees is of no avail. Nowhere in the evidence as anything been elicited that the temples generate lot of income or that the temples are not small temples. Even assuming that the finding of the trial Court that the annual income is Rs.5,000/- is true, it must be proved that there are five temples to be managed. Therefore, there can be no doubt that these are small temples. Therefore, the hereditary poojaris who have been performing the pooja for four generations have also been combining in themselves the role of the trustees. There is absolutely no evidence to show that the villagers have interfered with the appellants or their predecessors managing the temples or performing the pooja. On the other hand, evidence of P.W.2 and 3 clearly show that it was with the acquiescence of the villagers that this family has not only been managing the temples but has been cultivating the lands dedicated to the temples receiving the income and using it for performing poojas. There can be no better evidence either of their management of the temples. Chinna Andi Pandaram Vs. The Commissioner, Hindu Religious and Charitable Endowments (Admn.) Department, Madras – 3 and others (1981 1 MLJ 206) will not come to the aid of the respondent though there is a reference to the judgment of the Division Bench cited above, there is nothing to show that it dealt with a small temple or whether the issue was considered at all. In any event, this Court is bound by the judgment of the Division Bench which has categorically said that in South India in small temples the hereditary poojariship and the hereditary trusteeship can vest in the same person and the presumption is hereditary poojari is also the hereditary trustee. The evidence clearly shows that this right is hereditary having devolved on the eldest son of each branch by unbroken succession for at least more than three generations. So, the definition extracted above will fully apply. Therefore, the judgment and the decree of the trial Court is set aside. The suit is decreed and the appellants are declared as the present hereditary trustees of the said temples subject to the domain of the H.R. & C.E. Department since it is not the claim of the appellants that the temples are private temples. The appeal is allowed. No costs.