{"id":242710,"date":"2003-04-30T00:00:00","date_gmt":"2003-04-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/deputy-commissionerjudicial-vs-m-perumal-on-30-april-2003"},"modified":"2016-05-28T11:13:03","modified_gmt":"2016-05-28T05:43:03","slug":"deputy-commissionerjudicial-vs-m-perumal-on-30-april-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/deputy-commissionerjudicial-vs-m-perumal-on-30-april-2003","title":{"rendered":"Deputy Commissioner(Judicial) vs M.Perumal on 30 April, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Deputy Commissioner(Judicial) vs M.Perumal on 30 April, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 30\/04\/2003\n\nCoram\n\nThe Honourable Mr.Justice N.V.BALASUBRAMANIAN\nand\nThe Honourable Mr.Justice P.THANGAVEL\n\nAppeal Suit No.440 of 1988\n\n\n1.Deputy Commissioner(Judicial),\n  H.R. & C.E. (A) Dept.,\n  Madras.\n\n2.Commissioner,\n  H.R. & C.E.(A) Dept.,\n  Nungambakkam High Road,\n  Madras-34.                            ... Appellants\/Defendants.\n\n-Vs-\n\n1.M.Perumal.\n2.Manickam.\n3.Dhavamani.\n4.Ramaraj.\n5.Palanivel.\n6.Andiyappan.\n7.Perumal.                              ... Respondents\/plaintiffs.\n\n\n        Appeal under Section 70(2) of H.R.  & C.E.  Act, against the  judgment\nand  decree  dated  25.3.1986 and made in O.S.No.29 of 1984 on the file of the\nCourt of Subordinate Judge, Madurai.\n\n\n!For appellants :  Mr.G.Sukumaran,\n                Special Government Pleader\n                (H.R.  & C.E.).\n\n\n^For respondents :  Mr.K.Jayaraman.\n\n:JUDGMENT\n<\/pre>\n
P.  THANGAVEL, J.\n<\/p>\n
        This appeal has been filed by the defendants as appellants against the
\njudgment and decree dated 25.3.1986 and made in O.S.No.29 of 1984 on the  file
\nof the Court of Subordinate Judge, Madurai.\n<\/p>\n
        2.  The facts that are necessary for disposal of this First Appeal are
\nas follows:- Arulmigu Kannimar Temple at Chinnapatti village, Kancharampettai,
\nMadurai North Taluk, Madurai District is an ancient temple and for the support
\nof the  said temple an Inam grant has been awarded by ancient Rajas.  The said
\nInam was confirmed by the Inam Commissioner in the year 1865.  The temple  and
\nthe  lands  granted  for  maintenance  of  the said temple were managed by one
\nManicka Gounder and his descendants hereditarily as hereditary trustees.   The
\ngenealogy of  the descendants of Manicka Gounder is annexed to the plaint.  As
\nper Inam Fair Register, permanent tenure was  granted  in  favour  of  Manicka
\nGounder as worshiper of the said temple meaning thereby as poojari of the said
\ntemple.   The  said  Manicka  Gounder  had  three sons, viz., Manicka Gounder,
\nPerumal Gounder and Andiappa Gounder.  Plaintiffs 1 and 2, who are respondents
\n1 and 2 herein, are grand sons  of  Manicka  Gounder,  first  son  of  grantee
\nManicka  Gounder,  while  the  plaintiffs 3 and 4, who are respondents 3 and 4
\nherein, are great great grand sons of Perumal Gounder, second son  of  grantee
\nManicka Gounder.    The  plaintiffs 5 to 7, who are respondents 5 to 7 herein,
\nare the descendants of Andiappa Gounder, who is third son of  grantee  Manicka
\nGounder.   The  respondents  1  to 7 herein were keeping the management of the
\ntemple by remaining in possession of the lands given by Inam  Commissioner  as
\ngrant for  the  maintenance of the temple.  The respondents 1 to 7 herein have
\nbeen in management of the said temple by  possessing  the  lands  granted  for
\nmaintenance of the temple without any interference from any quarters by paying
\nkist.   Ryotwari  patta for the above said lands has been granted in favour of
\nthe temple by the Settlement Tahsildar by order dated 5.10.1966.\n<\/p>\n
        3.  The respondents herein filed a  petition  in  O.A.No.129  of  1979
\nbefore  the  Deputy  Commissioner,  Hindu  Religious  and Charitable Endowment
\nBoard, Madurai under Section 63(b)  of  the  Hindu  Religious  and  Charitable
\nEndowment  Act  22 of 1959 (hereinafter referred to as “the Act”) for an order
\ndeclaring that the respondents herein were holding the office  of  trusteeship
\nof the   temple  hereditarily.    The  Deputy  Commissioner  (Judicial)  Hindu
\nReligious and Charitable Endowment  at  Madras,  the  first  defendant,  after
\ntransfer of the above said O.A.No.129 of 1979, had declared the office held by
\nthe respondents  herein  as hereditary trusteeship.  The accounts were audited
\nand payment of contribution and audit fees were also made by  the  respondents
\nherein to  the above said Department.  The Commissioner of Hindu Religious and
\nCharitable Endowment, Madras, the second defendant on unseen allegations  took
\nup a suo motu appeal against the said order in A.P.No.57 of 1981 and cancelled
\nthe  order  passed  by  the first defendant on the ground that the respondents
\nherein are not the descendants of Manicka Gounder referred to in the Fair Inam
\nRegister and they are not hereditary trustees in management of the temple.  It
\nis under the said circumstances, the respondents  herein  as  plaintiffs  have
\nfiled  the  suit to set aside the order of the Commissioner of Hindu Religious
\nand Charitable Endowment Department, Madras-34  in  A.P.No.57  of  1981  dated
\n5.8.1983  and to declare that the respondents herein are holding the office of
\ntrusteeship   of   Arulmigu   Kannimar   Temple   at   Chinnapatti    village,
\nKancharampettai, Madurai North Taluk, Madurai District hereditarily.\n<\/p>\n
        4.   The  appellants  as  defendants  resisted  the  claim made by the
\nrespondents herein as plaintiffs on the following  grounds:-  The  respondents
\nherein  are  not hereditary poojaries cum trustees of Arulmigu Kannimar Temple
\nat Chinnapatti village.  In the Inam Fair Register  one  Manicka  Gounder  was
\nshown as  worshiper  and  not  as poojari.  The term worshiper and poojari are
\ndifferent in all aspects and therefore, worshiper cannot be known  as  poojari
\nof temple.   The alleged ancestors of the respondents herein were not managing
\nthe affairs  of  the  temple  as  poojaries  and  hereditary  trustees.    The
\nallegation  of  no interference in the alleged right of the respondents herein
\nas poojaries or trustees for generation is also not correct.    The  genealogy
\nfurnished along with the plaint is not admitted and the same has to be proved.
\nThe lands shown in Fair Inam Register were granted as Devadayam for the upkeep
\nof the  temple.    After  holding  an enquiry under Minor Inams Abolition Act,
\n1963, ryotwari patta was issued in the name of the temple  by  the  Settlement
\nTahsildar,  Unit No.I, Madurai in S.R.621\/MI Act\/MDU-66 dated 5.10.1966 for an
\nextent of 5.69 Acres for the upkeep of the temple as Devadayam in  T.D.No.159.
\nNo  patta  was  granted  in favour of the alleged ancestors of the respondents
\nherein treating them as poojaries of the temple.  On the application  made  by
\nthe  respondents  herein in O.A.No.129 of 1979 under Section 63(b) of the Act,
\nthe respondents herein were  declared  as  hereditary  trustees  of  the  said
\ntemple.   They  cannot be declared as hereditary trustees under the above said
\nAct.  Therefore, a suo motu proceeding was initiated under  Section  69(2)  of
\nthe  Act  in  A.P.No.57  of  1981 and the order of the first defendant was set
\naside by the second defendant by  order  dated  10.12  .1980.    There  is  no
\nevidence  to  show  on  the  side  of  the respondents herein that they are in
\nmanagement of the temple for more than 3 generations  or  over  100  years  to
\nclaim hereditary  trustee.    The  order  passed  by  the  second defendant in
\nA.P.No.57 of 1981 is valid and legal and cannot be  assailed.    The  fact  of
\ncultivating  the  lands  and  paying  kist  on  behalf  of  the  temple by the
\nrespondents herein will not confer them to  claim  poojariship  or  hereditary<\/p>\n
trusteeship  and  the respondents herein are not entitled to the relief sought
\nfor in the suit and the suit is not maintainable.  It is on these grounds, the
\nappellants as defendants have sought for dismissal of the suit.\n<\/p>\n
        5.  After considering the submission made on both sides in  the  light
\nof  the  material  evidence available on record, the trial Court has come to a
\nconclusion that the ancestors of the respondents herein and  after  them,  the
\nrespondents  herein are in management of the temple and its lands as poojaries
\ncum hereditary trustees and accordingly declared  the  respondents  herein  as
\nhereditary  poojaries  cum  trustees  thereby  setting  aside the order of the
\nsecond appellant dated 10.12.1980.  Aggrieved at the judgment and decree dated
\n25.3.1986 and made in O.    S.No.29  of  1984  on  the  file  of  the  learned
\nSubordinate  Judge,  Madurai,  the  defendants as appellants have come forward
\nwith this appeal.\n<\/p>\n
        6.  The points for determination in this appeal are:-\n<\/p>\n
        (1) Whether the respondents herein are descendants  as  shown  in  the
\ngenealogy  annexed  to  the  plaint to Manicka Gounder referred to in the Fair
\nInam Register  and  whether  the  said  Manicka  Gounder  and  after  him  the
\nrespondents  herein,  as  descendants,  continued to manage the affairs of the
\ntemple by remaining in possession of the lands granted for the upkeep  of  the
\nsaid temple as poojaries cum hereditary trustees?\n<\/p>\n
        (2)  Whether the order of the second appellant dated 5.8.1983 and made
\nin A.P.No.57 of 1981 is liable to be set aside?\n<\/p>\n
        7.  Points 1  and  2:-  The  first  plaintiff  M.Perumal  Gounder  was
\nexamined  as  P.W.1  and  one  Thirumal Asari was examined as P.W.2 apart from
\nmarking Exs.A-1 to A-12 on the side of the respondents herein.  The appellants
\nhave produced Exs.B-1 and B-2, but had not let in any oral evidence  on  their
\nside.\n<\/p>\n
        8.   Admittedly,  Arulmigu  Kannimar  Temple  at  Chinnapatti village,
\nKancharampettai, Madurai North Taluk, Madurai District was having 11 cents  in
\nSurvey  No.90\/1  and 5.45 Acres in Survey No.90\/3 in the above said village by
\nvirtue of the Inam grant made by ancient Rajas.  The said Inam  was  confirmed
\nby the Settlement Authorities in favour of the temple in the year 1865 as seen
\nfrom the admission made in the pleadings in the plaint.  Even though P.W.1 had
\nclaimed that the said temple is the family deity of the respondents herein and
\ntheir ancestors on the ground that it was constructed only by Manicka Gounder,
\nthere is no pleadings to that effect in the plaint.  There is also no evidence
\non  the  side  of  the respondents herein to show that the construction of the
\ntemple was made by Manicka Gounder, except the  interested  testimony  of  the
\nfirst respondent herein.  P.W.2 Thirumal Asari, who was examined in support of
\nthe  case of the respondents herein, would also state that he does not know as
\nto who had constructed the demised temple.  Therefore, the claim made  by  the
\nrespondents  herein  that  the  demised temple was constructed only by Manicka
\nGounder and the said temple  was  treated  only  as  family  deity  cannot  be
\nsustained.\n<\/p>\n
        9.   Of  course  the respondents herein have claimed as descendants of
\nManicka gounder, who was aged about 96  years  as  seen  from  the  Fair  Inam
\nRegister, Ex.A-1  as  on  27.9.1863.  To establish that the respondents herein
\nare descendants of said Manicka Gounder, it is pleaded in the plaint that  one
\nManicka  Gounder,  Perumal  Gounder  and Andiappa Gounder were the sons of the
\nsaid ancestor Manicka Gounder mentioned in Ex.A-1.  It is  also  pleaded  that
\nthe  respondents  1 and 2 are the grand sons of Manicka Gounder, the first son
\nof Manicka Gounder referred to in Ex.A-1, while the respondents 3  and  4  are
\nthe great great grand sons of Perumal Gounder, the second son of above Manicka
\nGounder referred  to in Ex.A-1.  It is also pleaded that the plaintiffs 5 to 7
\nare the descendants of Andiappa Gounder, the  third  son  of  Manicka  Gounder
\nreferred to  in  Ex.A-1.    In  support  of  such claim, a genealogy table was
\nannexed to the plaint.\n<\/p>\n
        10.  In support of the evidence of P.W.1 with regard to the  pleadings
\nreferred to above, Thirumal Asari was examined as P.W.2.  He is admittedly not
\nrelated to the family of the respondents herein.  P.W.2 would admit during the
\ncross-examination  that  he does not know as to who had constructed the temple
\nat ancient time and does not know  who  was  managing  and  administering  the
\naffairs of  the demised temple.  Though P.W.2 claims that there are about 4 to
\n5 acres of lands to the above said temple, he did not know the survey  numbers
\nof the  above  said  lands.    P.W.2  claims  that  the respondents 1 to 7 are
\ncultivating the lands of the temple separately.  But he did not know in  whose
\nname, the  patta  for the said lands is standing.  He further would admit that
\nhe does not know anything about Manicka Gounder.\n<\/p>\n
        11.  Ex.A-12 is the audit report submitted by Assistant Audit  Officer
\nof  Hindu Religious and Charitable Endowment, Administration Department (Audit
\nWing) of  Madurai  to  the  Assistant  Commissioner  of  Hindu  Religious  and
\nCharitable Endowment,  Administration  Department,  Madurai  on  23.2.1982.  A
\nperusal  of  Ex.A-12  audit  report,  inter-alia,  would  disclose  that   the
\nrespondents herein had given statements in writing to the audit party that the
\ndemised  temple  owns 5.69 acres of punja lands at Chinnappati village and the
\nsaid lands were leased out to various persons for a total  sum  of  Rs.1,200\/-
\nper  fasli  from  fasli  1383  to fasli 1387 and for Rs.1,500\/- per fasli from
\nfasli 1388 to fasli 1390.  If the statement made by  the  respondents  to  the
\naudit  party  as  referred  to  in  Ex.A-12  is  taken into consideration, the
\nevidence given by P.W.2 that the lands owned  by  the  temple  was  cultivated
\nseparately by  the  respondents  1 to 7 herein in part cannot be true.  If the
\nnature  of  the  evidence  given  and   admission   made   by   P.W.2   during
\ncross-examination  including  that  he  does  not  know anything about Manicka
\nGounder referred to in Ex.A-1 are taken into consideration, it is  clear  that
\nP.W.2  cannot  have  knowledge about Manicka Gounder referred to in Ex.A-1 and
\nhis descendants as stated in the chief-examination and  that  P.W.2  had  come
\nforward  to  give evidence only to support P.W.1 as he is from the same place.
\nTherefore, the evidence of P.W.2 cannot be safely acted upon to hold that  the
\ngenealogy annexed  to the plaint is true.  Except the unacceptable evidence of
\nP.W.2, there is no other evidence to prove the genealogy.\n<\/p>\n
        12.  In State of Bihar – vs.  – Radha Krishna Singh, 1983(3) S.C.C.  1
\n18, the Honourable Apex Court was pleased to hold as follows:-\n<\/p>\n
        “…..  before going  to  the  oral,  documentary  and  circumstantial
\nevidence,  it may be necessary to state the well established principles in the
\nlight of which we have to decide the conflicting claims of the  parties.    It
\nappears  that  the  plaint  genealogy is the very fabric and foundation of the
\nedifice on which is built the plaintiff’s case.  This is the starting point of
\nthe case of the plaintiff which has been hotly contested by the appellant.  In
\nsuch cases, as there is a tendency on the part of an interested  person  or  a
\nparty  in  order  to  grab,  establish  or prove an alleged claim, to concoct,
\nfabricate or procure false genealogy to suit their ends, the Courts in relying
\non the genealogy put forward must guard themselves against  falling  into  the
\ntrap laid by a series of documents or a labyrinth of seemingly old genealogies
\nto support their rival claims.\n<\/p>\n
The principles governing such cases may be summarised thus:\n<\/p>\n
(1)  Genealogies  admitted or proved to be old and relied on in previous cases
\nare doubtless relevant and in some cases may even be conclusive of  the  facts
\nproved  but there are several considerations which must be kept in mind by the
\nCourts before accepting or relying on the genealogies:\n<\/p>\n
(a) Source of the genealogy and its dependability.\n<\/p>\n
(b) Admissibility of the genealogy under the Evidence Act.\n<\/p>\n
(c) A proper use of the said genealogies in decisions or  judgments  on  which
\nreliance is placed.\n<\/p>\n
(d) Age of genealogies.\n<\/p>\n
(e) Litigations where such genealogies have been accepted or rejected.\n<\/p>\n
(2) On the question of admissibility the following tests must be adopted:\n<\/p>\n
(a)  The  genealogies  of  the  families  concerned  must fall within the four
\ncorners of Section 32(5) or Section 13 of the Evidence Act.\n<\/p>\n
(b) They must not be hit by the doctrine of post litem motam.\n<\/p>\n
(c) The genealogies or the claims cannot be proved by recitals, depositions or
\nfacts narrated in the judgment which have  been  held  by  a  long  course  of
\ndecisions to be inadmissible.\n<\/p>\n
(d) Where genealogy is proved by oral evidence, the said evidence must clearly
\nshow  special  means  of  knowledge  disclosing the exact source, time and the
\ncircumstances under which the knowledge is acquired, and this must be  clearly
\nand conclusively proved.” (emphasize supplied)<\/p>\n
If  the  principles  laid  down by the Honourable Apex Court in the case cited
\nabove is taken into consideration, it is clear that the Courts which relies on
\nthe genealogy put forward by one of the parties must guard themselves  against
\nfalling  into  the  trap  laid  by  a  series  of  documents or a labyrinth of
\nseemingly old genealogies to support their rival claims.  In  this  case,  the
\nevidence  of  P.W.2,  who  is nothing to do with the family of the respondents
\nherein alone is available.  But there is nothing to  show  about  the  special
\nmeans  of  knowledge  disclosing  the exact source, time and the circumstances
\nunder which P.W.2 had acquired knowledge  about  the  descendants  of  Manicka
\nGounder  mentioned  in  Ex.A-1 whom P.W.2 admits to have no knowledge to speak
\nabout genealogy or descendantship.  If a cautious approach is made with regard
\nto the genealogy in the light of the evidence given by P.W.2, it is clear that
\nthe genealogy pleaded by the respondents herein by annexing the  same  in  the
\nplaint  cannot  be  accepted as rightly pointed out by the second appellant in
\nhis order Ex.A-9 dated 5.8.1963 in A.  P.No.57 of 1981 setting aside the order
\nof the first appellant as seen in Ex.A-7 dated  10.12.1980  in  O.A.No.129  of
\n1979  after  issuing  notice to the respondents herein as seen in Ex.A-8 dated
\n14.10.1981.  It is relevant to point out that  the  second  appellant  in  his
\norder  referred to above had specifically mentioned that there is no proof for
\ngenealogy establishing that the respondents  herein  are  the  descendants  of
\nManicka Gounder  referred to in Ex.A-1.  If the circumstances stated supra are
\nconsidered, it cannot be held that the respondents herein as  plaintiffs  have
\nproved the genealogy pleaded and annexed to the plaint.\n<\/p>\n
        13.   The  learned  Special  Government  Pleader,  Mr.G.Sukumaran, has
\nbrought to the notice of this Court, the decision of a Division Bench of  this
\nCourt  reported  in the Commissioner, Hindu Religious and Charitable Endowment
\n(Administration) Department, Nungambakkam High Road,  Madras  600  034  and  2
\nothers  vs.  –  Srimathi  and  another,  2001(4) C.T.  C.  469.  The Division
\nBench of this Court, relying on the decision reported in 1983(3) S.C.C.    118
\nreferred to above, has held that the plaintiff, who has filed a genealogy tree
\nto  claim  that he is hereditary trustee of a temple, has to prove the same to
\nthe satisfaction of the Court and if the said plaintiff  fails  to  prove  the
\nsaid genealogy,  he  has to be non suited.  If the said decision rendered by a
\nDivision Bench of this Court is applied by way of analogy, for want  of  proof
\nof genealogy by the respondents herein, they have to be non suited.\n<\/p>\n
        14.   A  perusal  of Ex.A-1 Fair Inam Register would disclose that the
\ngrant of the above said 5.69 Acres of Devadayam  lands  was  awarded  for  the
\nsupport  and  upkeep  of Arulmigu Kannimar Temple at Chinnapatti village, as a
\npermanent and tax free grant.  The perusal of Ex.A-1  further  would  disclose
\nthat Manicka  Gounder mentioned therein was described only as a worshiper.  In
\n2001(4) C.T.C.  469 cited above, the Division Bench of  this  court  has  held
\nthat  worshiper  means  person  who  comes  to worship and worshiper cannot be
\ntreated as trustee or manager.  It is also  held  that  the  ancestor  of  the
\nplaintiff  shown  as  worshiper in Fair Inam Register can neither be a trustee
\nnor a manager and therefore, the plaintiff cannot be  declared  as  hereditary
\ntrustee as descendant.  With due respect such earlier decision of the Division
\nBench  of  this  Court  has  to  be  followed by this Bench, unless this Bench
\ndissent to that verdict by referring the matter to a larger Bench.   As  there
\nis  no  ground to dissent the earlier decision referred to above, it has to be
\nheld following the earlier decision that Manicka Gounder, who was described as
\nworshiper in Fair Inam Register, cannot be treated as poojari  or  trustee  or
\nmanager  of  Arulmigu  Kannimar Temple at Chinnapatti village, so as to enable
\nthe respondents herein to claim as poojaries or trustees or  managers  of  the
\nsaid  temple  as  descendants, even if it is taken for argument sake that they
\nare descendants of the said Manicka Gounder.\n<\/p>\n
        15.  The learned counsel appearing  for  the  respondents  herein  has
\nbrought to the notice of this Court the entries made in Ex.A-1 ” renders pooja
\non  important  days”  and would contend that the above entries in Ex.A-1 would
\ndisclose that Manicka Gounder was poojari of the said temple.  But the learned
\nSpecial Government Pleader appearing for the appellants would  contend  contra
\nstating that  there  is  nothing  in Ex.  A-1 to show that Manicka Gounder was
\ntreated as a poojari or a trustee of the said temple.  A  careful  perusal  of
\nthe  above said entries would disclose that Manicka Gounder was not recognized
\nas poojari or trustee or hereditary trustee of the said  temple,  but  it  was
\nmentioned  that  he  has to render pooja on important days from and out of the
\nincome derived from the lands to which patta stands in the  name  of  Arulmigu
\nKannimar Temple  at Chinnapatti village.  It will mean, as rightly pointed out
\nby the learned Special Government Pleader appearing for the appellants that he
\nhas to give out of the income from the lands to do pooja on important days and
\nit will not mean that he should do poojas  as  poojari  in  the  said  temple.
\nTherefore,  the  contention  raised  by  the learned counsel appearing for the
\nrespondents herein as mentioned above cannot be accepted.\n<\/p>\n
        16.  Ex.A-2 dated 5.10.1966  is  the  proceedings  of  the  Settlement
\nTahsildar (Minor  Inams),  Unit  No.I,  Madurai  in  S.R.621\/MI Act\/MDU\/66.  A
\nperusal of Ex.A-2 would  disclose  that  the  respondents  herein  and  others
\nmentioned  therein  had claimed before the Settlement Tahsildar ( Minor Inams)
\nto issue patta for 11 cents  in  Survey  No.90\/1  and  5.45  acres  in  Survey
\nNo.90\/3,  Chinnapatti  village as descendants of Manicka Gounder, who was said
\nto be in possession of the said lands by rendering pooja service  to  Arulmigu
\nKannimar Temple  at  Chinnapatti  village.    The  Settlement Tahslidar (Minor
\nInams), who held an enquiry in connection with issue of  patta  to  the  above
\nsaid  lands,  has  pointed  out  the non-production of any record to prove the
\noccupation of the said lands by the claimants therein, i.e.,  the  respondents
\nherein or  to  show  that they are the descendants of original possessee.  But
\nthe evidence of the karnam of the said village before the said  Authority  had
\ndisclosed  that  the  claimants  are in possession of the said lands to render
\npooja for the said temple.  Even after the said evidence given by  the  Karnam
\nof  the  said  village,  the  Settlement Tahsildar (Minor Inams) had come to a
\nconclusion that mere possession of the lands  will  not  enable  them  to  get
\nryotwari patta and accordingly granted ryotwari patta to the said lands in the
\nname of Arulmigu Kannimar Temple for its support and upkeep.  Therefore, it is
\nevident  from  the  order  of  the  Settlement  Tahsildar  (Minor Inams) dated
\n5.10.1966, that the respondents  herein  as  claimants  did  not  produce  any
\nmaterial  evidence  to  establish  that  they  are  the descendants of Manicka
\nGounder mentioned in Ex.A-1 even on 5.10.1966 in the equiry  and  their  claim
\nfor  ryotwari  patta  has  been negatived and ryotwari patta was issued in the
\nname of Arulmigu Kannimar Temple for its upkeep and  maintenance.    The  said
\norder  has  become  final  and  the  said  order  cannot  be  assailed  by the
\nrespondents herein at this stage stating that the Settlement Tahsildar  (Minor
\nInams) is not competent to decide the descendantship of the respondents herein
\ni.e.  as  not  the  descendants  of Manicka Gounder mentioned in Ex.A-1.  This
\nCourt holds that the Settlement  Tahsildar  (Minor  Inams)  is  the  competent
\nauthority  to decide the descendantship in the light of the evidence let in by
\nthe respondents herein to hold  as  to  whether  the  respondents  herein  are
\nentitled  to  claim  ryotwari  patta to the lands as against Arulmigu Kannimar
\nTemple or not.  The fact of paying kist as seen in Exs.A-3  and  A-4  and  the
\nfact  of  paying  tax for tree as seen in Ex.A-5 for the above said lands will
\nnot in any way alter the situation to hold that the respondents herein are the<\/p>\n
descendants of late Manicka Gounder and after him, the respondents herein have
\ncontinued to manage the affairs of the  Arulmigu  Kannimar  Temple  either  as
\npoojaries or as hereditary trustees.\n<\/p>\n
        17.   If  really the respondents herein were doing poojas as poojaries
\nand managing the affairs of temple as hereditary trustees for long many years,
\nthey should have maintained bank account and account books for the income  and
\nexpenditure of  the  administration of the temple.  The festivals of the above
\nsaid  Aulmigu  Kannimar  Temple  ought  to  have  been  celebrated  for  which
\npublication should have been made by means of pamphlets, etc., and expenditure
\nshould  have  been  incurred  after  collecting  donations, etc., from others.
\nService of various persons should have been engaged  for  cleaning  and  white
\nwashing,  etc.,  of  the  temple and also for conducting festivals in the said
\ntemple.  No documentary evidence or oral  evidence  was  produced  before  the
\ntrial Court to establish the above said facts.\n<\/p>\n
        18.   As  already pointed out, an audit party had inspected the temple
\nand submitted an audit report as seen in Ex.A-12 to the Assistant Commissioner
\nof  Hindu  Religious  and  Charitable  Endowment,  Administration  Department,
\nMadurai-1.   A  perusal  of  Ex.A-12 would disclose that a general account was
\nopened only in the fasli 1383 with nil balance and the same  was  closed  with
\nbalance of  Rs.203\/-  at the end of fasli 1390.  The financial position of the
\nsaid  temple  is  fairly  satisfactory  and  the  financial  position  of  the
\ninstitution  can  be  improved  by finding out ways and means as seen from the
\naudit report.  It is also evident that budget estimates for  the  faslis  from
\n1383  to 1390 were not prepared and got approved by the Assistant Commissioner
\nof  Hindu  Religious  and  Charitable  Endowment,  Administration  Department,
\nMadurai-1.   There  is also no material to prove the income out of leasing the
\nlands to various parties.  While commenting about the ways in which the  lands
\nwere  leased  out,  the  audit  party has found that there is no Miscellaneous
\nDemand Register in prescribed form for being audited by the Department.  There
\nis also no maintenance of Property Register under Section 29 of  the  Act  and
\ngot  approved  by  the  Deputy  Commissioner,  Hindu  Religious and Charitable
\nEndowment Administration Department,  Madurai.    There  is  also  no  Dhittam
\nRegister  under  Section  58  of  the  Act  and  got approved by the Assistant
\nCommissioner,  Hindu  Religious  and  Charitable   Endowment,   Administration
\nDepartment, Madurai.    There  is also no register showing the stock of jewels
\nbelonging to the temple for inspection.  A report has to be obtained from  the
\nSpecial Deputy  Collector  for  Temple  lands for audit purpose.  It will show
\nthat the above said lands of the temple were not treated as  temple  lands  by
\nthe respondents  herein  and were treated as if the lands are theirs.  1 to 18
\nstatements required to  be  prepared  as  per  Commissioner’s  instruction  in
\nR.C.No.32452\/78\/C1  dated  2.6.78  were  also  not  prepared  and  sent to the
\nAssistant Commissioner referred to  above  for  approval.    No  schedule  was
\nprepared  and got approved by the Assistant Commissioner referred to above for
\nincurring expenditure of a total sum of Rs.170\/- per fasli towards the pay  of
\nEstablishment.   For want of preparation of the said schedule, the correctness
\nof the  amount  paid  could  not  be  effectively  checked  up  by  the  audit
\nDepartment.  The moneys collected should have been deposited in scheduled bank
\nand withdrawn  as  and  when  required.  But the moneys collected were said to
\nhave been directly utilised for expenditure  without  following  procedure  as
\npointed out  above.    There  is  no  Miscellaneous  Deposit Register, Advance
\nRegister, Deposit Register, Paditharam Stock Register, etc., in the temple  as
\nseen in  Ex.A-12.    It  would  disclose  that there is no administration with
\nregard to the affairs of the temple in the hands  of  respondents  herein  and
\ntherefore  the  respondents  herein  cannot  claim  that they are managing the
\naffairs of the temple as they are in possession of the temple lands.\n<\/p>\n
        19.  Even though, the Deputy Commissioner (Judicial), Hindu  Religious
\nand   Charitable   Endowment  Department,  Madras-34  has  declared  that  the
\nrespondents herein are hereditary trustees for Arulmigu  Kannimar  Temple,  in
\nO.A.No.129  of 1979, the said order has been set aside after issuing notice as
\nseen in Ex.A-8 to the respondents herein  by  the  second  appellant.    While
\nsetting aside the order of the first appellant, the second appellant has taken
\ninto  consideration  of  the facts that there are no documents to show for the
\ncontinuous management of the temple by the family of the  respondents  herein,
\nthat  Manicka  Gounder  was  mentioned  in Ex.A-1 only as worshiper and not as
\ntrustee or poojari, that the respondents herein had not proved  the  genealogy
\nand the same has not been taken into consideration by the Deputy Commissioner,
\nthat  there is no evidence regarding succession to the alleged trusteeship and
\nthat the names of  one  Kanniappan  and  Ramanathan,  whose  names  have  been
\nmentioned  in document Ex.A-4 produced before the Deputy Commissioner, has not
\nbeen mentioned in the genealogy trees  produced  by  the  respondents  herein.
\nSince  the  order  of hereditary trusteeship passed by the Deputy Commissioner
\n(Judicial), Hindu Religious  and  Charitable  Endowment  Department  has  been
\ncancelled only on valid grounds by the second appellant, the said order cannot
\nbe set aside as unsustainable as claimed by the respondents herein.\n<\/p>\n
        20.  The learned counsel appearing for the respondents herein contends
\nthat this temple is a small temple with meagre income and that therefore there
\nis  nothing  illegal  in the hereditary poojariship and trusteeship vesting in
\nthe same individuals.  In Muthusamy Gurukal  vs.    –  Aiyaswami  Thevar  and
\nsixteen others,  1964 (2) M.L.J.  560, a Division Bench of this Court has held
\nas follows:-\n<\/p>\n
        “There is nothing illegal in hereditary  trusteeship  and  poojariship
\nbeing  combined  in  the  same person, especially in the case of small temples
\nwhere there has been no interference of control by any of the villagers of the
\nplace.  In the case of small village temples, where the temple property is  of
\ninsignificant  value  and  the  income  is  hardly sufficient even to meet the
\nroutine expenses of the temples, if the archaka or  the  poojari  is  left  in
\nmanagement  of  the  temple  lands  and  the affairs of the temple without any
\ninterference by any of the villagers for a long number of years, it has to  be
\npresumed  that  with  the  consent  and acquiescence of the worshippers of the
\nvillage the poojari is the trustee as well.  In such a case it  must  be  held
\nthat  the  poojari  managing  the  lands and affairs has made out his right to
\nhereditary trusteeship and the interests of  the  temple  are  not  likely  to
\nsuffer,  when the person concerned admits that the lands, are temple lands and
\nhas never set up any rights to them as his own property.”\n<\/p>\n
In Venkataraman  vs.  – L.A.Thangappa Gounder, 84 Law Weekly, 695, a Division
\nBench of this High Court has also observed following the decision referred  to
\nabove  that  there  is  nothing  illegal  in  the  hereditary  poojariship and
\ntrusteeship in the same individuals in small temples with meagre income.    In
\nthis  case  there  is  no  proof, as already pointed out, that the respondents
\nherein are the descendants of Manicka Gounder referred to in Ex.A-1.  There is
\nalso no proof that Manicka Gounder was at any time recognized  as  poojari  or
\nhereditary trustee so as to lay a claim by the alleged descendants of the said
\nManicka Gounder as hereditary poojaries and hereditary trustees of the temple.
\nThere  is  also no evidence on the side of the respondents herein to establish
\nthat they were doing poojas holding hereditary  trusteeship  by  managing  the
\naffairs of  the  temple.    It  is  relevant to point out that the respondents
\nherein had laid a claim for issue of ryotwari patta in  their  names  for  the
\nlands claiming as descendants of Manicka Gounder mentioned in Ex.A-1 and their
\nclaim  was  negatived  for want of proof on the side of the respondents herein
\nand ryotwari patta was issued in the name of Arulmigu Kannimar Temple for  its
\nmaintenance and  upkeep.    The  above  said  facts  would  disclose  that the
\nrespondents herein had started acting against the interest of the temple lands
\neven at the time of issue of ryotwari patta in the name of  Arulmigu  Kannimar
\nTemple.   Ex.A-11  dated 13.7.1981 is the registered sale deed executed by one
\nKunjaram Ammal in  favour  of  Dhavamani,  the  third  respondent  herein  for
\nRs.3,060\/-.   A perusal of Ex.A-11 would disclose that Kuppayandi Gounder, the
\nfather of the third respondent herein and grand son of Perumal Gounder who  is
\nsaid  to  be the son of Manicka Gounder mentioned in Ex.A-1, had sold 36 cents
\nout of 5.45 acres in Survey No.90\/1 for which ryotwari patta was issued in the
\nname of Arulmigu Kannimar Temple, Chinnapatti village, to  Kunjaram  Ammal  on
\n1.6.1968.  The said property, which is the property owned by Arulmigu Kannimar
\ntemple,  was  purchased  in  the  name of third respondent from Kunjaram Ammal
\nunder Ex.A-11 wherein it was described that the third respondent herein is the
\nabsolute owner of the said property.  There is nothing to show that  the  said
\nproperty  was  purchased  by  third  respondent herein in the name of Arulmigu
\nKannimar Temple, but only in his name as absolute owner thereof.    The  above
\nsaid  transactions  would  disclose  that  the  father of the third respondent
\nherein had sold the temple property in the name of third party  and  from  the
\nsaid  third  party,  the  property was again got back in the name of the third
\nrespondent herein as absolute owner thereof.  This will clearly show that  the
\nrespondents  herein are acting against the interest of the temple property and
\ncreating  documents  with  regard  to  the  properties  owned  by  the  temple
\nthroughout.   Therefore,  the  respondents herein are not competent persons to
\nadminister the affairs of the temple by remaining  either  as  poojari  or  as
\ntrustee,  even  in  the  light  of the decision already rendered by a Division
\nBench of this Court.  Therefore, the contention raised by the learned  counsel
\nfor  the  respondents  herein  that there is nothing illegal in the hereditary
\npoojariship and trusteeship vesting in the same individuals if the temple is a
\nsmall temple with meagre income, cannot be sustained.\n<\/p>\n
        21.  It has been held in T.P.  Srinivas Chariar and another  vs.    –
\nC.N.Evalappa Mudaliar, A.I.R.  1922 Privy Council, 325 as follows:-\n<\/p>\n
        “It  will now be seen how serious is the position of the respondent as
\na claimant for the continuance of the  trusteeship  of  this  temple  and  its
\nendowments.   The  doubts  in the minds of the Courts below, on the subject of
\nthis being allowed to continue in office, are sufficiently plain.  But when it
\nis now decided that the  whole  of  this  litigation  has  substantially  been
\noccupied  by an unfounded assertion, supported by the concoction of accounts
\nan assertion by the trustee of private ownership in  himself  and  a  powerful
\nresistance  to  the  recovery  of  these  properties  for  the  trust which he
\nadministers – it does not appear to their Lordships to be open to them, on any
\nsound principles either of administration or of law, to permit the continuance
\nof the respondent in the office of Dharmakartha.”\n<\/p>\n
In this matter even at the initial stage the respondents  herein  had  claimed
\nissue  of  ryotwari  patta  in  their  names for the lands of Arlmigu Kannimar
\nTemple instead of claiming for issue of ryotwari patta in the name of the said
\ntemple.  The said claim of the respondents  herein  was  negatived.    Now  as
\npointed  out above, a sale deed was created with regard to 36 cents out of the
\nlands owned by the temple in favour of third party and again in favour of  the
\nthird respondent  herein.   If the said facts are taken into consideration, in
\nthe light of the principles laid down by the Honourable Privy  Council,  there
\ncan be no doubt that the respondents herein cannot be permitted to continue in
\nthe office as poojaries or hereditary trustees of the said temple.\n<\/p>\n
        22.  In view of the foregoing reasons this Court is not able to concur
\nwith the findings of the trial Court that the respondents herein as plaintiffs
\nare entitled  to  the  relief sought for in the suit.  Therefore, the judgment
\nand decree of the trial Court have to be set aside and accordingly set  aside.
\nThe points are answered accordingly in favour of the appellants.\n<\/p>\n
        23.   The  appellants are hereby directed to take steps immediately to
\nrecover the property sold and transferred in  the  name  of  third  respondent
\nherein  as absolute owner thereof with regard to the portion of the properties
\nto which ryotwari patta was issued in the name of  Arulmigu  Kannimar  Temple,
\nChinnapatti, without further loss of time.\n<\/p>\n
        24.  In fine, the judgment and decree of the trial Court are set aside
\nthereby dismissing the suit and the appeal stands allowed with costs.\n<\/p>\n
Index:  Yes.                    (N.V.B.,J.) (P.T.,J.)\n\nInternet:Yes.\n\nts.\n\nTo\n\n1) The Subordinate Judge,\nMadurai.\n\n2) The Section Officer,\nV.R.Section,\nHigh Court,\nMadras.\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Deputy Commissioner(Judicial) vs M.Perumal on 30 April, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 30\/04\/2003 Coram The Honourable Mr.Justice N.V.BALASUBRAMANIAN and The Honourable Mr.Justice P.THANGAVEL Appeal Suit No.440 of 1988 1.Deputy Commissioner(Judicial), H.R. & C.E. (A) Dept., Madras. 2.Commissioner, H.R. & C.E.(A) Dept., Nungambakkam High Road, Madras-34. … Appellants\/Defendants. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-242710","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nDeputy Commissioner(Judicial) vs M.Perumal on 30 April, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/deputy-commissionerjudicial-vs-m-perumal-on-30-april-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Deputy Commissioner(Judicial) vs M.Perumal on 30 April, 2003 - 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