BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09/04/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.51 of 2005 1.Ramachandran 2.P.N.Joshi 3.Ramanathan 4.Uthayakumar ... Appellants/Plaintiffs Vs. 1.The Commissioner, H.R & C.E, Nungambakkam High Road, Chennai - 600 034. 2.The Joint Commissioner, H.R & C.E., Upstairs West Chitrai Street, Madurai. 3.Sri Ramanathasami Devasthanam, Rameswaram through Executive Officer, Devasthanam Office, Rameswaram, Ramanathapuram District. ... Respondents/Defendants Prayer Appeal filed under Section 75 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, against the judgment and decree dated 02.12.2003 passed in O.S.No.156 of 1998 by the Sub Judge, Ramanathapuram. !For Appellants ... Mr.M.S.Balasubramania Iyer ^For Respondents... Mr.So.Paramasivam, Govt. Advocate for R.1 & R.2 Mr.S.Ramesh for Mr.V.Raghavachari for R.3 :JUDGMENT
This appeal has been filed as against the judgment and decree dated
02.12.2003 passed in O.S.No.156 of 1998 by the Sub Judge, Ramanathapuram.
2. The parties, for convenience sake, are referred to hereunder according
to their litigative status before the trial Court.
3. Broadly but briefly, narratively but pithily, the case of the
plaintiffs as stood exposited from the plaint could be set out thus:
(i) The plaintiffs four in number, are the hereditary trustees of the
religious institution known as Sri Kandamanaparvatham in Rameswaram, as found
described in the schedule of the plaint. It is a place of religious worship.
It was founded by one Neelakanda Sivam @ Neelakanda Iyer @ Neelakanda Joshi, the
ancestor of the plaintiffs about five hundred years ago. The said founder
constructed massive structure well within his property and installed the Peedam
on which the sacred foot prints of Lord Rama was found.
(ii) He started worshipping the Peedam and he constituted himself as
Poojari cum trustee of the said institution. The genealogy has been furnished
by the plaintiffs. As such, following the founder, his descendants namely the
sons and grandsons and thereafter, the male descendants of the founder have been
acting as Poojaries cum trustees of that institution and they have been
performing Poojas and managing the institution. The plaintiffs’ ancestor one
Loganathan Sivam was functioning as Poojari cum trustee. Rama Iyer and Subba
Iyer had no issues and Parvatha Iyer had four sons Loganatha Iyer, Anda Iyer,
Neelakanda Iyer and Neelakanda Bairava Iyer. Mahadeva Iyer had a son by name
Neelakanda Sammana Iyer. After the life time of Rama Iyer and his brothers, the
sons of Parvatha Iyer and Mahadeva Iyer succeeded to the office of hereditary
trusteeship cum poojariship and they all together performed the poojas and they
managed the institution.
(iii) It is well known that in Rameswaram, the famous temple of Sri
Ramanathaswami is situated. The pilgrims who visited that temple also visited
the suit institution. However, the construction was comparatively simple and
there is no big tower or massive praharams. Various kings belonging to the
Naicker Dynasty and the Sethupathi Dynasty who had contributed their wealth for
the additional constructions of the said temple and for proper upkeep of the
said temple had made a permanent records of their contributions by causing
various inscriptions on the stone walls within the temple and by having their
images and those of their ancestors carved out in the form of statues and
installing those statutes at various places within the temple premises.
Following the kings, Zamindars started having control over the said
Ramanathaswami temple. Neither the kings nor the Zamindars had control over the
hereditary trustees of the suit institution.
(iv) In fact, Zamindar of Ramanathapuram issued pattas in the names of the
ancestors of the plaintiffs for the suit property over which the institution is
situated. It was never treated as subsidiary institution of Sri Ramanathaswamy
Temple, even though Raja of the Ramanathapuram himself was the hereditary
trustee of the said temple. Sri Ramanathaswamy temple was managed by a Board of
trustees headed by Raja of Ramanathapuram as the Chairman of Board of trustees.
But, there was no Board of trustees for the suit institution. During the year
1917, the then trustees of Sri Ramanathaswamy temple tried to install Hundial in
the premises of the suit institution. But, the ancestors of the plaintiffs
objected to it and thereupon, such attempt was stopped.
(v) The trustees of Sri Ramanathaswamy temple did not spend any money for
the maintenance or upkeep of the suit institution. The Deputy Commissioner, H.R
& C.E, Madurai initiated suo motu proceedings in O.A.No.2 of 1965 under the
Tamil Nadu Act 22 of 1959 for determining the question whether the suit
institution was a public religious institution or not. The grandfather of the
first plaintiff contested the matter.
(vi) Thereafter, the Deputy Commissioner decided under Section 63(a) of
the H.R & C.E Act that it is the public institution. Thereupon, the suit was
filed in O.S.No.31 of 1971 by the grandfather of the first plaintiff in the Sub
Court concerned, for setting aside the order passed by the Deputy Commissioner
in O.A.No.2 of 1965. The suit was dismissed holding that the suit institution
was a public institution. Challenging the same, A.S.No.287 of 1971 before this
Court was filed by the grandfather of the first plaintiff. Ultimately, this
Court upheld the finding that the suit property is a public religious
institution. While holding so, this Court recognised the plaintiffs’ hereditary
right to manage the suit institution and perform the poojas.
(vii) As such, the said institution was never considered as the subsidiary
shrine of Sri Ramanathaswamy temple. After the judgment of this Court, the
plaintiffs filed O.A.No.17 of 1981 before the Deputy Commissioner, H.R & C.E,
under Section 63(b) of the H.R & C.E Act, for declaration that the suit
institution was being managed by the successive hereditary trustees. The third
defendant contested the matter contending that the plaintiffs could claim only
Pooja Mirashi right.
(viii) On 04.05.1983, the Deputy Commissioner allowed the said O.A.No.17
of 1981, but on appeal, the Commissioner set aside the order by remanding the
matter back to the Deputy Commissioner for deciding afresh. Subsequently, the
Deputy Commissioner decided the matter dismissing the said petition. Thereupon,
the plaintiffs filed appeal in A.P.No.7 of 1993 before the Commissioner, who
dismissed it. The Deputy Commissioner as well as the Commissioner failed to
hold that the plaintiffs are the hereditary trustees of the said institution and
they were not justified in holding that the suit institution is a subsidiary
institution of Sri Ramanathaswamy temple.
(ix) The observations made by the Deputy Commissioner and the Commissioner
were not in tune with the objections made by the ancestors of the plaintiffs for
installation of Hundial by the third defendant in the suit institution.
(x) The documents available would demonstrate that the third defendant
never treated the suit institution as one under its administration and in fact,
in some of the records maintained by the third defendant, the ancestors of the
plaintiffs attested as the hereditary trustees cum Poojaris of the suit
institution.
(xi) The third defendant did not appoint any of the plaintiffs relating to
the suit institution. The plaintiffs and their ancestors of their own accord
and on their own right acted as hereditary trustees and Poojaris and thereupon,
by their open, continuance and exclusive possession of the suit institution,
they prescribed their absolute right over the office of the hereditary trustees
– poojaris also.
(xii) The ancestors of the plaintiffs failed to move the Settlement
authority for grant of ryotwari patta in their favour, even though they got
patta for the property within which the suit institution is situated under the
Zamindar. When the State Government wanted to interfere with the possession of
the ancestors of the plaintiffs relating to that property, they filed the suit
in O.S.No.26 of 1989 before the Sub Court, Ramanathapuram for upholding their
ownership and other incidental reliefs. The suit was decreed upholding the
claim of the ancestors of the plaintiffs. The third defendant did not obtain
any patta in their name relating to the property within which the suit
institution is situated. Both the Deputy Commissioner and the Commissioner
failed to appreciate all these facts, but decided wrongly O.A.No.17 of 1981 and
A.P.No.7 of 1993 respectively. Accordingly, the plaintiffs prayed for the
following reliefs:
“(1) that the order made by the Commissioner H.R & C.E, in appeal A.P.No.7
of 1993 confirming the order made by the Deputy Commissioner (H.R & C.E),
Madurai, in O.A.No.17 of 1981 be set aside holding that the suit institution is
an independent religious institution managed and administered by the plaintiffs
and by their ancestors and their hereditary right to be in office of the
trustees cum poojaries.
(2) that the defendants to pay the costs of this suit to the plaintiffs,
and
(3) for such other and further reliefs as this Honourable Court may deem
fit proper and necessary in the circumstances of the case.”
(emphasis added)
4. Per contra, denying and refuting, challenging and contradicting the
averments/allegations in the plaint, the third defendant filed the refutatory
written statement which was adopted by the defendants 1 and 2, the gist and
kernel of it, would run thus:
(i) Neelakanda Sivam alias Neelakanda Iyer did not construct any
structure or Peedam referred to in the suit. Neither the plaintiffs nor their
ancestors as set out in the genealogy have acted as hereditary trustees relating
to suit institution or the suit property concerned but the same formed part of
the third defendant’s temple.
(ii) The genealogy as found set out in the plaint is imaginary. Ramar
Padam is held as a sacred spot and it is part of the public institution that is
treated as part and adjunct of Sri Ramanathaswamy temple. The Raja of Ramnad
and his successors treated the suit institution and the property as the part of
Sri Ramanathaswamy temple. Sri Ramanathaswamy temple included within its fold
the sub temples and places of worship including the suit institution. The suit
institution and the premises have no independent existence. Even in the year
1831, the suit property and the suit institution were under the control and
management of Sri Ramanathaswamy temple.
(iii) The renovations of the Gandhamathanaparvatham temple was undertaken
by the Sri Ramanathaswamy temple of Rameswaram every year and all expenditures
incurred for the said renovations were borne by Sri Ramanathaswamy temple as
evidenced by accounts. The reports of the Engineering Personnel, measurements
and the values of the work done, have been reported to the management of Sri
Ramanathaswamy temple. Among the members of the plaintiffs’ family, there were
disputes which were decided by the civil Court. The third defendant was not a
party to those proceedings. The suit institution is situated 3 Kms away from
Sri Ramanathaswamy temple.
(iv) In A.S.No.287 of 1971, this Court was pleased to uphold the
hereditary right of the Archakas,but not their right as the Trustees of Sri
Ramanathaswamy temple. The suit institution is managed by the trustees of Sri
Ramanathaswamy temple. The incident referred to in the plaint during the year
1917, cannot in any way enure to the benefit of the plaintiffs herein. On
sympathetic consideration, the Archakars were allowed to receive gifts. Such
gifts and payments to archakars are quite common, because such gifts are given
by the pilgrims to the Archakars for their own satisfaction. The plaintiffs are
the descendants of some of the Archakas of the main temple namely Sri
Ramanathaswamy temple. The plaintiffs are only the care takers and not the
trustees. Accordingly, the defendants prayed for the dismissal of the suit.
5. The trial Court framed the following issues:
(i) Whether the suit temple belonged to private parties or to the third
defendant?
(ii) Whether the plaintiffs are the hereditary trustees of the suit
temple?
(iii) Whether the order passed in A.P.No.7 of 1993 confirming the order in
O.A.No.18 of 1981 should be set aside?
(iv) To what relief the plaintiffs are entitled?
6. During trial, the first plaintiff examined himself as P.W.1 and Exs.A.1
to A.4 were marked. D.W.1 was examined and Exs.B.1 to B.50 were marked on the
side of the defendants.
7. During cross-examination, it appears, A.5 and A.6 were marked, but in
the list of documents, they were not found incorporated.
8. Ultimately, the trial Court dismissed the suit.
9. Being aggrieved by and dissatisfied with, the judgment and decree of
the trial Court, this appeal has been filed by the plaintiffs on the following
main grounds among others:
(i) The judgment and decree of the trial Court is against law and weight
of evidence. The lower Court has not understood the crux of the case. Based on
assumption, the trial court dismissed the suit. The trial Court proceeded on
the footing that since the suit institution is a public temple, it should be
belonged to the third defendant. It is not the case of the plaintiffs that the
suit temple is not a public temple, but it is their case that they are the
hereditary trustees. The evidence of D.W.1 was not considered by the trial
Court and the suit institution was not referred to as the subsidiary institution
of the third defendant.
(ii) The plaintiffs and the employees working in the suit institution were
not appointed by the third defendant and this fact was not considered by the
trial Court. The third defendant is not having any document to show that the
Hundials of the suit institution were brought to the accounts of the third
defendant and the third defendant has not paid any salary to anyone in the suit
institution. Rameswaram is one of the Zamin villages attached to Ramanathapuram
Zamin and the State Government took it over as per the Tamil Nadu Estates
(Abolition and Conversion into Ryotwari) Act, 1948.
(iii) The third defendant has not applied for ryotwari patta for the lands
belonging to the suit institution. The trial Court failed to appreciate the
significance of the suit O.S.No.26 of 1989. Some well-wishers donated funds to
the third defendant for effecting repairs in Sri Ramanathaswamy temple and in
the suit institution and that would not enure to the benefit of the third
defendant to claim right of administration over the suit institution.
Accordingly, they prayed for setting aside the judgment and decree of the trial
Court and for decreeing the original suit.
10. The points for consideration are:
(i) Whether the plaintiffs are the hereditary trustees of the suit
institution and whether they adduced evidence before the trial Court in support
of their plea?
(ii) Whether there is any infirmity in the orders passed by the Deputy
Commissioner and the Commissioner?
11. Heard both sides.
12. Both the points are taken together for discussion as they are
interlinked and interwoven with each other.
The Point:
13. A re’sume’ of facts absolutely necessary and germane for the disposal
of this appeal would run thus:
The warp and woof of the case of the plaintiffs is that they are the
hereditary trustees of the suit institution namely Gandhamathanaparvatham
temple; the authority under the H.R & C.E Act, erroneously understood the scope
of Section 63(1)(b) of the H.R & C.E Act and instead of adjudging the hereditary
trusteeship of the plaintiffs, they deviated from the main issue and held as
though the suit institution is a subsidiary institution of Sri Ramanathaswamy
temple; and without considering the probabilities and the oral and documentary
evidence available on record, they decided against the plaintiffs.
14. Whereas the nitty-gritty of the case of the third defendant is that
voluminous ancient documents filed on the side of the third defendant, would
demonstrate and prove that ever since 1895 onwards and even earlier to it, Sri
Ramanathaswamy temple Devasthanam has been exercising effective control and
domain over the suit institution called Gandhamathanaparvatham temple and that
the plaintiffs are none but the persons having Poojamirashi right as held in the
previous proceedings by various Courts.
15. Whether ‘Animus Domain’ relating to the suit institution, has been
with the plaintiffs and their ancestors or with the third defendant, is the
judicial question in this case.
16. On the side of the plaintiffs, the first plaintiff examined himself as
P.W.1 and Exs.A.1 to A.4 were marked through him. Whereas Exs.A.5 and A.6 were
marked during cross-examination of D.W.1. Ex.A.1 is the impugned order passed
by the Commissioner, H.R & C.E Department, in A.P.No.7 of 1993 as against the
plaintiffs and Ex.A.2 is the notice dated 06.07.1998 addressed by the Deputy
Commissioner to P.W.1, N.Ramachandran.
17. Ex.A.3 and Ex.B.49 are one and the same document filed on either side.
Ex.A.3 (B.49) would reveal that the ancestor of the plaintiffs namely,
Neelakanda Bairava Iyer, S/o.Neelakanda Parvatha Iyer, the first plaintiff’s
grandfather, as revealed by the table of genealogy appended to the plaint
herein, filed the statutory suit in O.S.No.30 of 1971, for setting aside the
order of the Commissioner, H.R & C.E Department, in A.P.No.61 of 1970 and for
obtaining the relief of injunction as against the Commissioner, Hindu Religious
and Charitable Endowments, Madras, and the Executive Officer, Ramanathaswami
Devasthanam, Rameswaram, the third defendant herein, from interfering with the
said Neelakanda Bairava Iyer’s management and administration of the suit
institution. The suit was dismissed by giving a finding that (i) Neelakanda
Bairava Iyer, the plaintiff therein, the grandfather of P.W.1 (the first
plaintiff herein), (ii)Neelakanda Joshi, the third defendant therein, the father
of the plaintiff No.2 herein, and (iii) Radhakrishna Joshi, the fourth defendant
therein, the father of the plaintiffs 2 and 3 herein, were not the owners the
said institution and they had no right of management and administration over the
said institution and declared the temple as the public institution. Certain
excerpts from Ex.A.3 (B.49) is extracted hereunder for ready reference:
“10. … The origin of the temple it has already been found has been lost
in antiquity and at any rate cannot be traced to any ancestor of the plaintiff
and the defendants 3 to 5. The management of the same has been with the second
defendant-Devasthanam from the year 1891 onwards and the second defendant-
Devasthanam had been responsible for effecting major repairs and the maintenance
of the building. No doubt, the plaintiff and the defendants 3 to 5 had also
effected repairs in the property but the same are trivial and of no great
consequence. Possession of the property had remained with the plaintiff and the
defendants 3 to 5 but such possession can be traced to the pooja mirashi right
in the temple and not to absolute ownership therein. Most of the devotees have
offered worship in the temple as of right and there is no instance of anybody
having been refused permission for worship in the temple. The members of the
public have been worshipping at the shrine without let hinderance. There being
no idol in the property there has been no pooja at fixed hours and no festival
connected with the temple. Poojas are offered to the carved feets of Lord Rama
only and devotees offer worship therein and therefore no expenses are involved
in respect of worship in the temple.
(11) In the result, on an analysis of all the attendant circumstances, it
is clear that the suit property is a public temple within the definition of
Section 6(20) of the Tamilnadu Hindu Regligious and Charitable Endowments Act of
1959.
(12) I therefore find on issue No.2 that Gandhamathana Parvatham temple
is a public temple. I find on issue No.1 that the order of the Deputy
Commissioner which has been confirmed by the Commissioner, is not liable to be
set aside. On Issue No.3 in view of my finding on issues 1 and 2, the plaintiff
is not entitled to the reliefs prayed for. The defendants are entitled to their
costs.”
(emphasis added.)
As such, the discussions and findings given in Ex.A.3 (B.49), are clearly
against the plaintiffs herein and it is binding on them.
18. Ex.A.4, is the order dated 04.05.1983 passed by the Deputy
Commissioner in O.A.No.17 of 1981 which was set aside by the appellate
authority. However that order has been filed herein which has no relevance for
adjudicating this matter. The admitted fact remains that as against the order
in Ex.A.4, the appeal was filed by the third defendant and thereupon, the matter
was remanded back to the Deputy Commissioner concerned who gave a finding
subsequently as against the plaintiffs herein.
19. As against which, the plaintiffs filed A.P.No.7 of 1993 and the
Commissioner confirmed the order of the lower authority and dismissed the appeal
holding that the plaintiffs are not the hereditary trustees, as against such
order only, the statutory suit has been filed by the plaintiffs.
20. Ex.A.5 is the booklet published by the third defendant under the
caption “The Saga of Rameswaram Temple” by Somalay, during the year 1975.
Ex.A.6 is the relevant page and in that the subsidiary temples of Sri
Ramanathaswamy temple are found set out.
21. The learned Counsel for the plaintiffs, placing reliance on Exs.A.5
and A.6 would submit that the suit institution was not stated as one of the
subsidiary temples or the institutions of the third defendant.
22. In fact, the arguments of the learned Counsel for the plaintiffs are
to the effect that such absence of specification of the institution namely
Gandhamathanaparvatham in Ex.A.6 would go as against the third defendant’s
claim. Instead of the plaintiffs proving their case positively by producing
clinching evidence, they have gone to the extent of placing reliance on Exs.A.5
and A.6 and based on that, they pray the Court to infer that the third defendant
is having no right over the suit institution. The learned Counsel for the
plaintiffs placing reliance on the alleged admissions of D.W.1, the official of
the third defendant, would argue that D.W.1 admitted that the plaintiffs or
their ancestors were not appointed as Archakars of Poojaris in the suit
institution; no employees to do either secular or non-secular works in the suit
institution were appointed by the third defendant. According to the learned
Counsel for the plaintiffs, those admissions by D.W.1 would demonstrate that the
third defendant had no control over the suit institution and that no budgetary
provisions or accounts of the third defendant are available to prove that the
third defendant exercised control over the suit institution. Suffice to say,
such argument is neither here nor there.
23. The onus of proof is on the plaintiffs to prove their case. There is
no infinitesimal or minuscule or iota or shred of evidence in support of the
plaintiffs’ contention that they are hereditary trustees relating to the said
institution. Ex.A.5 emerged only in the year 1975 and the records would speak
by itself that even as per the contention of the plaintiffs, the litigation
started between the third defendant and the plaintiffs’ ancestors several long
years anterior to 1975; even as per Ex.A.3, the suit was of the year 1971
between the plaintiffs’ ancestors and the third defendant and in such a case,
Ex.A.5 emerged during the year 1975 can never be treated as a piece of evidence
which the plaintiffs could rely upon it and no more elaboration is required in
this regard.
24. Ex.A.5 is a mere booklet of the year 1975 whereas in the litigation
earlier and in the voluminous documents filed on the side of the third
defendant, the suit institution is found to be under the effective control and
domain of the third defendant wherefore Ex.A.5 is never meant to be an authentic
document of the third defendant. I am of the considered opinion that the
plaintiffs are preculded from placing reliance on Ex.A.5 and no more elaboration
is required as the untenability of the plaintiffs’ plea is obvious and
axiomatic.
25. It is therefore clear that absolutely without any evidence, the
plaintiffs are claiming that they are the hereditary trustees of the suit
institution. Whereas the clinching and voluminous documents filed on the side
of the third defendant herein, in the earlier proceedings as well as in this
proceeding would demonstrate that the third defendant had active control and
domain over the suit institution. As such, merely based on the alleged
admissions of D.W.1, the plaintiffs cannot build their case and in fact, D.W.1’s
answer to the deposition is not in any way constituted an admission of the
plaintiffs case.
26. The contention of the learned Counsel for the plaintiffs that the
authorities under the H.R & C.E Department, were not justified in holding that
this suit institution is a subsidiary institution of the third defendant, is not
a sound argument, for the reason that on finding that the plaintiffs are having
no evidence on their side to prove their hereditary trusteeship, but on the
other hand, finding based on documents that the third defendant had effective
control over the public institution namely Gandhamathanaparvatham, the
authorities under the H.R. & C.E Department correctly held that for such suit
institution under the control of the third defendant, the plaintiffs cannot
claim hereditary trusteeship.
27. Trite, the law, is that the plaintiffs should prove the case. The
plaintiffs having failed to adduce any evidence to prove their case, cannot try
to achieve success in the litigative battle by picking holes in the third
defendant’s case. As such, the appeal itself could be dismissed on that count.
However, for the purpose of comprehensively deciding the matter based on the
evidence placed before this Court, I proceed to discuss further the documents
filed on the side of the defendants which highlight the untenability of the
plaintiffs’ case.
28. Ex.B.1, the certified copy of the judgment passed by the District
Munsif, Ramanathapuram in O.S.No.67 of 1944 on 10.12.1945, would demonstrate
that the said Neelakanda Bairava Iyer, the ancestor of the plaintiffs filed the
suit for declaring his right of Poojamirashi in the suit institution and for
recovery of half of the share of the income as against his relatives, Neelakanda
Joshi, Chinthamani Rao Joshi and Rathakrishna Joshi. As already pointed out,
according to the genealogy, the plaintiffs and the defendants therein are all
close relatives and as per the plaint, they are the descendants of the alleged
founder of the temple Neelakanda Sivam.
29. In fact, the said suit shows internecine fight among the family
members and in that suit, the Court upheld their Poojamirashi right and allotted
their respective shares. The relevancy of Ex.B.1 has been correctly highlighted
by the learned Counsel for the third defendant that the plaintiff himself in the
said suit clearly admitted that the third defendant had claim over the suit
institution. An excerpt from Ex.B.1 is reproduced hereunder for ready
reference:
“10. The plaintiff’s pleader further contends that these documents are not
genuine and that they must have been got up to support their case as against the
Devasthanam in 1917, when they were first produced into Court. It is in
evidence that there was some dispute between Rameswaram Devasthanam which
claimed the suit temple and the predecessors of the parties in this suit.
Exhibit D-2 is the certified copy of the list of documents filed in M.S.345 of
1917 on the file of the II Class Magistrate’s Court, Ramnad. The above three
deeds are mentioned therein and having been filed by the Parvatha Iyer the
plaintiff’s father. But, as pointed out by the defendants’ pleader, these
documents have been filed by the plaintiff’s father himself into Court and if he
is alive now, he cannot plead against the same and the plaintiff who derives
title from his father cannot also go against the same.”
(emphasis added)
30. Ex.B.47, is the certified copy of the relevant written statement filed
by the third defendant before the II Class Magistrate, Ramnad in Roc.No.345 of
1917 which was relating to the proceedings initiated by the Magistrate and
referred to in Ex.B.1 supra, and more specifically in the excerpt extracted
hereunder. In the said written statement, it is found set out thus:
“1.That there is no ground whatever for an action under Section 144 CCP.
2. That no action can under law be taken on information laid by a telegram
just as in this case.
3. That the petitioner has had no possession as contemplated under law in
exercise of any such of right, title or interest in the premises known as
Gandhamana Parvadam.
4.That the premises are the property of the Davastanam and in its
possession and the Devastanam has absolute manner of enjoyment.
5. That the Devastanam in exercise of its right placed Hundyal in the
premises just as it has done in other places for pilgrims to present offerings
in a peaceful manner to the knowledge of the petitioner: the petitioner has no
manner of claim to raise any objection whatever to the Devastanam doing this and
similar acts at its own premises. ……”
As such, the stand of the third defendant herein is found spelt out as early as
in the year 1917 itself.
31. Ex.B.2, the printed judgment dated 12.07.1947 passed by the
Subordinate Judge, Ramnad at Madurai, in A.S.No.91 of 1946, would reveal that
the said Neelakanda Bairava Iyer challenging the judgment as in Ex.B.1, filed
the said appeal. The appellate Court slightly modified the judgment of the
trial Court in respect of allotting share to the plaintiffs relating to
Poojamirashi right.
32. Ex.B.3, the order passed by the Deputy Commissioner, in O.A.No.2 of
1965, in the suo motu proceedings initiated by him under Section 63(a) of the
Madras H.R and C.E Act, 1959 and in that order, he gave a clear finding that the
plaintiffs are having no right of hereditary trusteeship or ownership over the
suit institution. Certain excerpts from it, could be extracted hereunder for
ready reference:
“2. Sri Gandhmadhana Parvatham which is a two-storeyed mantapam in
Rameswaram is at present in the management of the respondents 1 to 4 who claim
to be the owners of the same. As a result of the obstructions created by the
second respondent when the Rameswaram Devasthanam has attempted to place a
hundial in the Gandhamadhana Parvatham, there arose a necessity to decide
whether the said institution is a public religious institution or not.
Proceedings have therefore been started under sec.63(a) of the Madras H.R & C.E
Act and notices have been served upon the respondents to show cause as to why
Sri Gandhamadhana Parvatham at Rameswaram should not be declared as a religious
insitution under Section 63(a) of the Act. Rameswaram Devasthanam has applied
to be impleaded as a party to the proceedings and it has been added as such 5th
respondent.
3. The respondents 1, 3 and 4 remained exparte and the second respondent
has filed a counter in which he has pleaded that Sri Gandhamadhana Parvatham is
not a religious institution, but only a private family temple of the respondents
and his agnates who are the descendants of one Andu Perumal Iyer. He has
alleged that the temple has no idol, flag-staff or balipeetam or even any
festival and other indices to make it a public temple. It has been treated as
the private family temple of the respondents and their ancestors, and that it
was never dedicated to the public. The public have got no right of worship in
the temple. He has submitted that his grandfather Bairava Joshi Iyer renovated
the temple in 1818 from his own funds and performed Kumbabishekam. While so,
the Rameswaram Devasthanam has attempted to place in the temple a hundial in the
year 1917, which was successfully resisted by him and thereafter the Devasthanam
did not interfere with the temple. Even recently the respondent has spent about
200 rupees for the Kumbabishekam. He has therefore pleaded that Sri
Gandhamanaparvatham temple cannot be declared as a religious institution under
the provisions of the Act.”
33. The aforesaid excerpts would clearly highlight the prevaricative
stands of the plaintiffs herein. The plaintiffs’ ancestors as found set out in
the extract, took up the plea as though the entire suit institution is a private
family temple of the plaintiffs’ ancestors and it is not a public temple at all
and accordingly, they laid claim. Whereas the third defendant herein disputed
the same and contended that it is a public institution and it happened to be one
of the shrines attached to Sri Ramanathaswamy temple. The Deputy Commissioner
concerned, H.R & C.E Department observed as under:
“6.POINT: Sri Gandhamadhana Parvatham temple is a two-storeyed mantapam
situated at a distance nearly 2 miles in Rameswaram island to the north of Sri
Ramanathaswami temple. This temple stands on a raised platform over a hillock
which is said to be the part of the original hill where Sri Rama was advised to
establish a Lingam. The footprints of Sri Rama carved on a stone are placed in
the centre of the lower building, and to these footprints pooja is performed.
There is no denial of the fact that the respondents 1 to 4 have got a right to
perform the pooja in this temple. This is evident from the fact that there was
a litigation between the respondents themselves before a Civil Court, with
regard to the share of the right of pooja miras in the temple and it has been
settled, that the second respondent is to have 1/2 share while respondents 1, 3
and 4 to have the other half. But, the mere fact that these respondents have
got a right to perform the pooja in the temple would not by itself clothe them
to claim ownership of the temple. In fact, the respondents 1, 3 and 4 remained
exparte in the enquiry and it is only the second respondent who now opposes the
claim of Sri Ramanathaswami Devasthanam that Sri Gandhamadhana Parvatham is one
of the institutions attached to the Rameswaram Devasthanam. …
… The claim of the second respondent is that the temple in question has
been built on a private property which is about 25 acres in extent belonging to
his ancestors. The S.No. of this extent has been given as 518, but at the same
time the second respondent is not able to produce any evidence to substantiate
that this property belonged to his ancestors. Except his own statement in the
course of his evidence as P.W.1, there is no other evidence to show that this
property belonged to the second respondent and his ancestors. …
… Under this circumstances, I do not think that we can rely upon these
references alone to come to the conclusion that the property in S.No.518 was
owned by the family of the second respondent. …
… Though in the counter that has been filed by the second respondent
there is mention that Sri Gandhamadhana Parvatham is a private family temple of
the respondents and their agnates who are the descendants of one Pandu Perumal
Iyer, it has not been specifically stated that it was only this Pandu Perumal
Iyer who constructed the temple. But he has asserted in the course of his
evidence that the temple has been built by his ancestors. At the same time has
has admitted that he did not have any record to show to substantiate his
allegation. Indeed he has exhibited his ignorance with regard to the time when
the temple was built or by whom it has been constructed by simply saying that it
was a very ancient one. Looking at the structure and the Vimanams of the
temple, I do not think that the temple could have been built by any private
person.
… Under this circumstance, I am of the opinion that there is no absolute
evidence to show that the grandfather of the second respondent has renovated the
temple at any time. …
… It is clear from these documents that Rameswaram Devasthanam has been
effecting repairs, exercising rights of ownership over this temple and that the
Devasthanam authorities have been attending upon the management of the temple in
question. …”
34. The Deputy Commissioner also in Ex.B.3 clearly found that after
initial resistance by the ancestors of the plaintiffs herein, they did not
resist any more and that the third defendant continued to have control over the
said institution. Another excerpt from it, would run thus:
” … It may not be out of place at this juncture to note that in the
conservation notes No.V of 1910-1911 of the Archaeological Department, Southern
Circle, Madras a copy of which has been marked as Exhibit B.22 it has been
mentioned in item No.4 that Gandharmadhana Parvatham is under the charge of
Ramanathaswami Devasthanam authorities.
… But the other factor that is to be looked into in connection with the
Gandhamadhana Parvatham temple is that the respondents do not pay mandagapadi
fees as it is done by other private individuals.
… In the absence of any judgment declaring the ownership of the family
of the respondents to Sri Gandhamadhana Parvatham temple we are not able to
accept the contention of the second respondent.
9. Taking all the above factors into consideration we could safely come to
the conclusion that Sri Gandhamadhana Parvatham at Rameswaram is a public
religious institution and not a private family property of the respondents as
contended by the second respondent. The point is therefore answered in the
affirmative and the proceedings closed.”
35. The Deputy Commissioner held that Gandhamathana Parvatham is a public
institution and the plaintiffs’ ancestors had no right of ownership over the
suit institution and they declared that it as a public religious institution.
As already highlighted above, Ex.A.3 (B.49) would reveal that the plaintiffs’
ancestor Neelakanda Bairava Iyer filed the statutory suit after meeting with his
waterloo in A.P.No.61 of 1970, which he filed as against the findings as
contained in Ex.B.3. The Sub Court in the said statutory suit, O.S.No.30 of
1971 as revealed by Ex.A.3 (B.49) upheld the order of the authorities under the
H.R & C.E Department that it is a public institution.
36. It is an admitted fact that as against the judgment as contained in
Ex.A.3 (B.49), A.S.No.287 of 1971 was filed before this Court which confirmed
the judgment and decree of the trial Court holding the suit institution as a
public institution. Wherefore it is clear indubitably and incontrovertibly, the
suit institution is a public institution and the authorities concerned negatived
the specific plea of the plaintiffs’ ancestors that it was their exclusive
private temple and property.
37. It is not insignificant to note that the plaintiffs cannot simply
ignore the findings given in the previous proceedings that the plaintiffs’
ancestors are not the owners of the property concerned over which the temple is
situated and that the temple was not installed by them or consecrated by them.
38. The learned Counsel for the plaintiffs would submit that in the
previous proceedings under Section 63(a) of the Act, it was decided only to the
effect that the said institution was a public institution and nothing more and
not about the hereditary trusteeship of the plaintiffs’ ancestors and their
right over the property concerned. Such a distinction sought to be made by the
plaintiffs herein is one that of tweedledum and tweedledee. The finding that it
is a public institution and that it did not belong to the ancestors of the
plaintiffs, are two sides of a coin and such findings are interlinked,
intertwined and interconnected with each other.
39. Not to put too fine a point on it, had really the plaintiffs been the
hereditary trustees, then they could have pleaded so in the earlier litigation,
but they did not do so, but on the other hand, they pleaded absolute ownership
which was negatived. Thereafter, having a volte face and turning turtle, the
plaintiffs herein have come forward until a new plea as hereditary trustees
quite antithetical and contradictory to their earlier plea.
40. In the previous proceedings, almost all the documents filed by the
defendants in the present proceedings have been filed and based on that, in the
previous proceedings, the authorities under the H.R & C.E Act, and the Courts
appreciated and held that the plea of the third defendant herein that it
exercised its effective control and domain over the suit institution and based
on that alone, such verdicts emerged. Now, it is only an afterthought on the
part of the plaintiffs herein to file one other application under Section 63(b)
of the Act, laying claim as though they are the hereditary trustees of the suit
institution having management and control over it independently to the exclusion
of the third defendant.
41. I am of the considered opinion that the very averments in the plaint
are quite antithetical to the adverse finding which they got invited as against
themselves in the previous proceedings and it is quite obvious from the above
narration of facts and discussion of facts based on documents.
42. The learned Counsel for the third defendant would appropriately and
appositely, correctly and convincingly, highlight that Exs.B.4 to B.39 marked
before the lower Court in this matter would evince and evidence, prove and
demonstrate that the third defendant exercised effective control over the suit
institution even earlier to 1895 onwards. He would also correctly argue that
all these exhibits were considered in the earlier proceedings and it was
litigated upto this Court and adverse findings were given as against the
plaintiffs’ ancestors and in favour of the third defendant herein to the effect
that the third defendant had control over the suit institution.
43. The genuineness of Exs.B.4 to B.39 are beyond doubt and most of those
are all ancient documents having evidentiary value of their own and accordingly,
the lower Court in page No.4 of the printed judgment, clearly considered the
relevancy of the documents and held that the third defendant had control and
effective management over the suit institution.
44. Ex.B.4, dated 12.11.1895, is the certified copy of Temple Supervisor’s
report to Shri.Bhaskara Sethupathy Maharaja of Ramanathapuram Samasthanam, which
was marked as Ex.B.11 in the earlier suit O.S.No.30 of 1971. The perusal of it
would clearly highlight that Raja of Ramanathapuram Samasthanam had control over
both the temples, viz, Sri Ramanathaswamy Temple and Sri Gandhamanaparvatham
Temple. The trial Court also in its judgment unambiguously considered this
aspect. The suit institution is referred to in the eighth line of Ex.B.4. As
such, it is an authentic ancient document clearly establishing the control of
the third defendant and the management over the suit institution.
45. It is just and necessary to refer the following documents as under:
Sl.No.
Exhibits
Dated
Details of Documents
1.
Ex.B.5
02.07.1895
Piece Work Agreement by Subbiah Kothan to Rameswaram Devasthanam.
2.
Ex.B.6
13.03.1904
Certified Copy of letter from Narayanasami Mudaliar to Rameswaram Devasthanam
General Superintendent.
3.
Ex.B.7
19.03.1904
Certified copy of receipt by Narayanasami Mudaliar to the Khajana for Rs.200/-.
4.
Ex.B.8
04.04.1904
Certified copy of entries in Measurement book No.6 of Rameswaram Devasthanam.
5.
Ex.B.9
15.04.1904
Certified copy of receipt by Narayanasami Mudaliar to Rameswaram Devasthanam for
Rs.300/-.
6.
Ex.B.10
24.05.1904
Certified copy of petition by Narayanasami Mudaliar to Rameswaram Devasthanam.
7.
Ex.B.11
19.05.1904
Progress report relating to Gandhamadhana Parvatham iron fencing work for April
1904.
8.
Ex.B.12
24.05.1904
Certified copy of receipt by Narayanasami Mudaliar for Rs.233.10.0
9.
Ex.B.13
19.06.1904
Certified copy of receipt by Kumaravelu Pillai for Rs.66.6.0
10.
Ex.B.14
19.06.1904
Certified copy of receipt by Soundaramuthu Pillai for Rs.80/-.
11.
Ex.B.15
03.07.1904
Certified copy of receipt by Narayanasami Mudaliar for Rs.74.5.0
12.
Ex.B.16
15.04.1905
Certified copy of measurement book No.6 of Rameswaram Devasthanam.
13.
Ex.B.17
14.09.1905
Certified copy of receipt by Narayanasami Mudaliar
14.
Ex.B.18
20.11.1905
Certified copy of receipt by Narayanasami Mudaliar for Rs.132.7.0
15.
Ex.B.19
30.11.1905
Certified copy of receipt by Marimuthu Asari for Re.1/-
16.
Ex.B.20
04.01.1906
Certified copy of receipt by Marimuthu Asari for Rs.2/-
17.
Ex.B.21
20.09.1907
Progress report relating to Gandhamadhana Parvatham iron fencing work for
January 1907.
18.
Ex.B.22
27.09.1907
Progress report relating to Gandhamadhana Parvatham iron fencing work for
February 1907.
19.
Ex.B.23
05.10.1907
Progress report relating to Gandhamadhan Parvatham iron fencing work for March
1907.
20.
Ex.B.24.
05.01.1908
Progress report relating to Gandhamadhana Parvatham iron fencing work for
November 1907.
21.
Ex.B.25
24.01.1908
Progress report relating to Gandhamadhana Parvatham iron fencing work for
December 1907.
22.
Ex.B.26
19.12.1897
Entries at Page 86 in the Ledger Accounts of Rameswaram Devasthanam.
23.
Ex.B.27
19.08.1913
Certified copy of Rameswaram Devasthanam file relating to repair to
Gandhamadhana Parvatham.
24.
Ex.B.28
09.09.1913
Certified copy of office order by the trustee.
25.
Ex.B.29
10.10.1913
Certified copy of Dis.No.1545/1913 with Vouchers of Rameswaram Devasthanam.
26.
Ex.B.30
18.09.1914
Certified copy of receipt for Rs.210/- by Contractor T.Ramalinga Kothan for
repair to steps in Gandhamadhana Parvatham and estimate etc.
27.
Ex.B.31
03.10.1914
Certified copy of receipt for Rs.149/-.
28.
Ex.B.32
12.02.1915
Certified copy of Bill for repairing and improving Gandhamadhana Parvatham.
29.
Ex.B.33
24.02.1915
Certified copy of IV Bill and Final payment to T.Ramalinga Kothan.
30.
Ex.B.34
06.10.1907
Progress report relating to Gandhamadhana Parvatham iron fencing work for April
1907.
31.
Ex.B.35
09.10.1907
Progress report relating to Gandhamadhana Parvatham iron fencing work for May
1907.
32.
Ex.B.36
09.10.1907
Progress report relating to Gandhamadhana Parvatham iron fencing work for June
1907.
33.
Ex.B.37
08.01.1908
Progress report relating to Gandhamadhana Parvatham iron fencing work for
September 1907.
34.
Ex.B.38
1902
List of estimate relating to repairs to Rameswaram Koil to dig well near
Gandhamadhana Parvatham for Rs.23/-.
35.
Ex.B.39
17.04.1913
Work Statement of Rameswaram Devasthanam.
46. As such, all the aforesaid exhibits are relating to the works and
repairs carried out in the suit institution by the third defendant and it would
clearly torpedo the claim of the plaintiffs that the plaintiffs’ ancestors and
the plaintiffs as hereditary trustees were allegedly exercising their effective
control and management over the suit institution. It is correctly held in the
previous proceedings by the lower authorities and this Court that the
plaintiffs’ ancestors had only Poojamirashi right and nothing more.
47. Had really, the plaintiffs and their ancestors happened to be the
hereditary trustees, they must have been able to produce at least some evidence
that they also exercised their control over it and effected repairs. The
probability and demonstrability of the plaintiffs’ case, if true, warrant
production of clinching documents. But, absolutely there is no evidence as
already set out supra.
48. Ex.B.40 is the list of documents relating to Mandagapadi of
Gandhamadhana Parvatham maintained by the third defendant which also supports
the case of the third defendant.
49. Ex.B.41, dated 06.11.1894, is the certified copy of the letter from
Ag.Head Assistant Magistrate of Ramanathapuram to Rameswaram Devasthanam, to
effect repairs concerning the steps in the suit institution. This adds strength
to the case of the third defendant and proves that the case of the plaintiffs is
totally unsustainable.
50. Ex.B.42, dated 05.07.1911, is the certified copy of the letter from
Ag.Sub Collector, Ramanathapuram to Rameswaram Devasthanam, recognising the
domain and control of the third defendant over the suit institution and
directing the third defendant to perform certain ameliorating steps.
51. Ex.B.43, dated 03.10.1831, is the certified copy of judgment in
No.2172 of 1831, on the file of the District Munsif’s Court, Paramakudi, which
reveals that there was litigation among the ancestors of the plaintiffs relating
to Poojamirashi right only.
52. Ex.B.44, dated 02.12.1968, is the certified copy of Field Map No.518,
F.M.Book. Ex.B.45, dated 02.12.1968 is the certified copy of Adangal for 518/1,
Rameswaram village, for the fasli year 1377 and that would not in any way enure
to the benefit of the plaintiffs to lay claim over the suit institution.
53. Ex.B.46, dated 07.09.1971, is the certified copy of the written
statement of the defendants 3 to 5 (who are the ancestors of the plaintiffs
themselves) in O.S.No.30 of 1971. Certain excerpts from it, would run thus:
“3. The plaintiff and these defendants and their predecessors belong to
Maharashtra Brahmin Community. A few generations ago, the predecessor of this
family migrated to Rameswaram like other Maharashtra Brahmin families who came
to Rameswaram and settled. Out of this community, archakas are being appointed
in Sri Ramanathaswami temple for a very long time. Similarly in the suit temple
also, the family of these defendants have been doing the pooja service and have
been enjoying the income thereon. A perusal of ancient records will show that
the plaintiff and these defendants and their predecessors have been claiming
pooja rights on miras basis and there had been disputes regarding the same.
….
4. The plaintiff and these defendants’ predecessors were similarly
performing pujas and enjoying the income of the temple and in as much as there
were no Trustees for the temple, the predecessors were effecting minor repairs
whenever needed from out the income enjoyed by them from the temple. ….
5. … During festival in the months of Ani, Adi, and Masi, Sri
Ramanathaswami is taken to Gandhamadhana Parvatham and the public attend the
functions connected with the festivals in large number. ………..”
As such, the aforesaid excerpts from the written statement filed by the
plaintiffs’ ancestors viz, Neelakanta Joshi, Radhakrishna Joshi and Chinthamani
Joshi, would completely torpedo the case of the plaintiffs herein.
54. Ex.B.48, dated 01.06.1991, is the Kattalai Register, which would show
as to how the third defendant exercised its control over the suit institution.
55. The plaintiffs’ contention that their ancestors are the hereditary
trustees and hence, the plaintiffs herein are also hereditary trustees is
nothing but a plea emerged out of mere figment of imagination. But, the
plaintiffs’ ancestors themselves in Ex.B.4, clearly and categorically admitted
that they are not the hereditary trustees; they had no right or control over the
suit institution; it has been declared as public institution; they also accepted
such status and they are having the right only to do poojas and enjoy the income
that they got for doing poojas and nothing more. Put simply, the deposition of
P.W.1 is nothing but his ipsi dixit having no evidence to buttress and fortify
it.
56. In this factual matrix, my mind is redolent with the maxim “Allegans
contraria non est audiendus.” {He is not to be heard who alleges things
contradictory to each other.}. Here, the said maxim is squarely applicable as
against the plaintiffs, due to the fact that quite antithetical to the stand of
their ancestors, they placing reliance on their alleged non-existing rights, are
claiming hereditary trusteeship concerning the suit institution.
57. The plaintiffs’ reliance on the judgment in O.S.No.26 of 1989 filed
before the Sub Court, Ramnad, is admittedly covered by the appeal filed before
this Court in A.S.No.287 of 1971 which is pending. In that, the plaintiffs and
the Government are only the parties and not the third defendant.
58. I would recollect the famous maxim “Non potest adduci exceptio ejusdem
rei cujus petitur dissolutio.” {A matter, the validity of which is at issue in
legal proceedings, cannot be set up as a bar thereto.} is also applicable in
this facutal matrix.
59. It is pertinent to note that in paragraph No.IV of the plaint, it is
alleged as under:
“IV. the suit property is a place of religious worship. It was founded by
an ancestor of the plaintiffs. The institution is very old and its origin is
not definitely known and is out of human memory. The tradition is that it was
founded by one Neelakanda Sivam alias Neelakanda Iyer alias Neelakanda Joshi, an
ancestor of the plaintiffs about 500 years ago. He constructed the massive
structure well within his property and he installed the “PEEDAM” on which the
Sacred Foot Prints of THE LORD Sri RAMA was carved. He arranged for the daily
worship of the ‘Peedam’ and he constructed mandapam and constituted himself the
poojari cum trustee of the institution.”
60. The excerpts cited supra would run counter to the claim of the
hereditary trusteeship of the plaintiffs. Once, indubitably and indisputably
the very temple itself is ancient and it has been in existence from time
immemorial and beyond human memory, it is not known how the plaintiffs could
contend that five hundred years ago, their ancestor is the founder. It is not
the case of the plaintiffs that Lord Rama’s foot prints were noted by the
plaintiffs’ ancestor only recently in the suit institution after they migrated
from Maharastra.
61. The concept ‘hereditary trustee’ ushered in by the plaintiffs is a
misconceived one. Section 6(11) of the Tamil Nadu Hindu Religious and
Charitable Endowments Act, 1959, is extracted hereunder for ready reference:
“Section 6(11). ‘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 scheme of succession is in force;”
(emphasis supplied.)
62. It is therefore crystal clear that the definition ‘hereditary trustee’
presupposes that there should be ‘a founder’. If the founder dedicated his
property for the purpose contemplated under the Tamil Nadu H.R & C.E Act, and
prescribed the mode of trustees being appointed by the hereditary trustee, then
the question of hereditary trusteeship would come into operation. But, a mere
reading of the aforesaid definition vis-a-vis the averments in the paragraph
No.4, and other parts of the plaint would non-suit the plaintiffs.
63. The learned Counsel for the plaintiffs would also develop his
arguments that simply because the third defendant spent some amount given by the
donors for being spent on the suit institution, there is no hard and fast rule
that it should be assumed that the third defendant was exercising control over
the suit institution and it should be treated as third defendant’s subsidiary
institution.
64. If really, the donor wanted to spend money on the suit institution, it
is not known as to why such donor had not directly given the amounts to the
plaintiffs or their ancestors.
65. If really, the plaintiffs or their predecessors happened to be the
hereditary trustees, then they should have asked the third defendant to give
such part of the donation to them and in turn, they ought to have spent it on
the suit institution. But, that was not the case of the plaintiffs. In such a
case, the argument put forth on the side of the plaintiffs, is neither here nor
there and they cannot approbate and reprobate.
66. The plaintiffs, unconvincingly contended that the lower authorities
were not justified in holding that the suit institution is a subsidiary of the
third defendant; it was beyond the scope of Section 63(a) of the Act; and if at
all, any action to be taken, it should be under Section 23 of the Act.
67. The learned Counsel for the plaintiffs cited the following decisions:
(i) Madana Palo and others v. The Hindu Religious Endowments Board, Madras
reported in 1937 (II) MLJ 830.
(ii) Raj Kali Kuer v. Pam Rattan Pandey reported in 1955(II) MLJ 49.
(iii) Subramania Pillai v. Trustees, Temple Group reported in 1977 (II)
MLJ 77.
(iv) The unreported decision of the Honourable Apex Court in M.S.V.Raja &
Another v. Seeni Thevar & Others in Civil Appeal No.2417 of 1992.
68. The first decision cited supra in Madana Palo’s case, of this Court is
relating to the case where a grant was given to an individual and to his
successors by the Inam Commissioner and thereupon, the dispute arose among the
descendants and in that context, this Court held about the rights of the
hereditary trustees to continue. Here, my above discussion would highlight that
the facts are entirely different and the plaintiffs have not proved that at any
point, their ancestors are the trustees of the suit institution and as such,
there is no question of hereditary trusteeship would arise.
69. The second decision cited in Raj Kali Kuer’s case, is on a set of
facts where the hereditary rights of Pujari or Archaka was involved and the
question arose as to whether a female could be appointed as a trustee by
inheritance and in that context, the Honourable Apex Court held that a female
also could inherit the hereditary trusteeship and perform pooja through her
proxy and as such, it is having no application to the case on hand and no more
elaboration is required.
70. The third decision in Subramania Pillai’s case is on a set of facts
wherein a public trust was recognised, but among the family members concerned,
there was a dispute and in that context, the Court held that it could be decided
by the Court who should be the hereditary trustee and the comments applied
relating to the first decision are also applicable to this case.
71. In the fourth decision in M.S.V.Raja’s case, the facts concerned that
there was a factual finding to the effect that from time immemorial, the
religious denomination of a community of Raju of Singarajakottai were
administering the temple and among them, the trustees were elected. However,
Pandarams were engaged to perform pooja as Poojaris and those Pandarams claimed
hereditary trusteeship, but it was negatived. In those circumstances, the Court
ultimately held that the suit temple is a public temple and the management of
the suit temple with the religious denomination of Rajus and the relief of
declaration and injunction so far it relates to worship in pooja according to
usage by Pandarams in the temple is rejected. But, here, absolutely my above
discussion would show that the facts are entirely different that the plaintiffs
have not proved that they are hereditary trustees.
72. Hence, all the above four decisions are, in my considered opinion, out
of context.
73. To the risk of repetition, without being tautologous, I would hold
that in view of the overwhelming evidence available on the side of the third
defendant and in order to hold that the plaintiffs and their predecessors were
not justified in contending that they acquired ownership right or any other
right of management over the suit institution, naturally it warranted those
authorities to discuss and hold that the suit institution is the subsidiary one
of the third defendant and in such a case, I do not see any infirmity in the
judgment of the trial Court in holding that the suit institution is the one of
the subsidiary institutions of the third defendant and that the third defendant
is having effective control over it.
74. The learned Counsel for the plaintiffs would submit that no steps were
taken by the temple authorities to obtain patta under the Act 26 of 1963, while
admitting that, the plaintiffs’ ancestors had not taken any steps to get one in
their favour. My mind is redolent with the maxim “Let the accuser be free from
accusation”. Here, it will not lie in the mouth of the plaintiffs to contend as
to why the third defendant did not get patta while they themselves, in fact, had
not obtained one in their favour. It is the plaintiffs who approached the Court
for relief and forgetting the same, they raise untenable pleas.
75. In fact, the Government records would speak volumes that the
Government recognised the pre-existing right of the third defendant even before
the commencement of Act 26 of 1963. So, in such a case, as per the provisions
of Act 26 of 1963, the third defendant’s right over the suit institution is
beyond challenge.
76. Trite, the proposition of law, is that irrespective of the issuance or
non-issuance of patta, the pre-existing right of the individuals concerned,
could be asserted before the Civil Court. Here, the plaintiffs only approached
the Court, but they never filed any documents to assert their pre-existing right
over the property. Whereas the documents filed on the third defendant’s side
would speak in favour of the third defendant’s right over the suit institution.
77. Hence, considering all these facts, a fortiori, the plaintiffs had no
case at all to put forth before the Civil Court claiming that they are the
hereditary trustees. Accordingly, au fait with law and au curante with facts,
the trial Court correctly dismissed the original suit. The application filed
under Section 63 (b) of the Tamil Nadu Hindu Religious and Charitable Endowments
Act, is turned out to be an ill wind that blew no one any good.
78. Accordingly, the Point No.1 is decided to the effect that the
plaintiffs are not hereditary trustees of the suit institution and they have not
adduced any significant evidence in support of their plea. The Point No.2 is
decided to the effect that there is no infirmity in the orders passed by the
Deputy Commissioner or the Commissioner concerned.
79. In the result, the appeal is dismissed, confirming the judgment and
decree dated 02.12.2003 passed in O.S.No.156 of 1998 by the Sub Judge,
Ramanathapuram, without costs.
rsb
To
The Sub Judge, Ramanathapuram.