(Prayer : Appeal filed under Section 196 of Civil Procedure Code read with Section 70 (2) of the Tamil Nadu Hindu Religious and Charitable Endowments Act against the judgment and decree of the learned Subordinate Judge of Namakkal dated 29.06.1999 made in O.S.No.329 of 1992.)
1. This appeal is filed against the judgment and decree dated 29.06.1999 passed by the learned Subordinate Judge of Namakkal in O.S.No.329 of 1992.
2. Following are the allegations contained in the plaint -
2 [a] The plaintiff is the elder son of Rasappa Gounder who died in the year 1973. Arulmighu Pudhu Mariamman Temple is situated in Survey No.37/1 which is a poromboke land. The plaintiff is the hereditary trustee for the said temple. The paternal grand father of this plaintiff by name Marappa Gounder installed a stone idol and was worshipping the same. Afterwards, in 1980, an idol was put up. The public also were worshipping the idol. Marappa Gounder during his life time has been celebrating festivals in this temple. He died in the year 1915. Till 1973, his elder son Rasappa Gounder was the hereditary trustee for the temple. He also conducted festivals. He raised neem tree in the temple which is now 80 years old. It is eight (8) feet in girth and about 40 feet in height. He also put up a thatched shed in the temple.
2 [b] After the death of Rasappa Gounder, from 1983 onwards, the plaintiff has been performing the affairs of the temple as hereditary trustee. He has also installed the presiding deity. He also constructed a terraced building and compound wall. He has also spent about Rs.1,00,000/- for construction of the said temple. On 05.03.1982, he performed kumbabishekam for this temple. In the year 1979, the defendant appointed two more non-hereditary trustees alongwith the plaintiff for three years. Hence, the plaintiff raised objections. So, the plaintiff alone was appointed as hereditary trustee in the year 1982. From 1982 onwards, he has been managing the temple as hereditary trustee and he has been paying the contribution amount to the defendant. He has also filed an application in O.A.No.69 of 1986 before the Deputy Commissioner, HR & CE Department, Coimbatore to declare him as hereditary trustee. It was thereafter transmitted to Salem HR & CE office, taken on file in O.A.No.147 of 1987 and the same was allowed on 13.12.1987. Subsequently, the defendant took suo motu action in SMR No.10 of 1988 and passed an order setting aside the proceedings of the Deputy Commissioner on 05.05.1992. The said order of the defendant is not sustainable. The plaintiffs' forefathers had been hereditary trustees for the temple for the three generations. So, the order passed by this defendant in SMR No.10 of 1988 dated 05.05.1992 may be set aside confirming the order of the Deputy Commissioner.
3. The allegations in the written statement filed by the defendant are succinctly stated as follows -
It is incorrect to state that the paternal grand father of the plaintiff established the temple in the year 1890 and that he had been in management till 1915. It is situated in poromboke land and the public worshipped the idol and gave donations. It is false to state that it is a private temple of the plaintiff and he is the hereditary trustee. He performed the kumbabishekam on 05.03.1982 as non-hereditary trustee. The plaintiff could not be termed as a hereditary trustee under any of the categories enumerated in Section 6 (11) of HR & CE Act. There is no basis to plead that he is the hereditary trustee. Hence, the suit may be dismissed.
4. After considering the oral evidence on record, the learned Sub Judge, Namakkal has dismissed the suit by observing that the plaintiff has failed to show that he could be brought under any of the categories under Section 6 (11) of HR & CE Act, (hereinafter referred to as Act) and that there is no proof to show that the paternal grand father of the plaintiff established the temple, thereafter the father of the plaintiff and then the plaintiff have been acting as hereditary trustees. Hence, the unsuccessful plaintiff is before this Court.
5. The point for consideration is, "whether the appellant is hereditary trustee for the suit property?"
6. The plaintiff examined himself as P.W1 and deposed in line with the pleadings available in the plaint. It is his evidence that he used to spent the amount for the festivals and at times, the public also made offering, that the temple is situate in poromboke land, that in the year 1979, the department appointed himself and two others as trustees and at that time, he raised objections and on consideration of the said objections, he was appointed as hereditary trustee. Even though it is pleaded by both the parties that in the year 1979 two other non-hereditary trustees were appointed and in the year 1982 the plaintiff alone was appointed as hereditary trustee, they have not produced those documents.
7. The appellant filed a petition under Section 16 (b) of the Act before the Deputy Commissioner, HR & CE Department, Salem to declare him as hereditary trustee for the suit temple. After enquiry, the said authority passed a proceedings in favour of the appellant on 30.12.1987 declaring him as hereditary trustee. Ex.A1 and A2 are the order and fair order respectively. Subsequently, the respondent took a suo motto action in SMR No.10 of 1988 and reconsidered and set aside the order of the Deputy Commissioner and decided that the office of the trusteeship of the suit temple is not hereditary and that the appellant has held the office only on the basis of the appointment as a trustee of the suit temple.
8. As adverted to supra, neither of the parties has produced the earlier proceedings appointing the appellant and two other independent persons as trustees. Hence, this Court is not in a position to ascertain the nature of the trusteeship as decided by the Department. The respondent in his detailed order has observed inter alia that the appellant has not proved that an endownment for the installation of stone idol was created by Marappa Gounder and that by succession he inherited the office of trusteeship after his father Rasappa Gounder, that on the documentary evidence, it transpires that he came to be in possession of the temple by virtue of his appointment as the trustee and earlier held the office only as stranger, that he did not function independently during the period from 03.02.1979 to 02.02.1982, that he performed kumbabishekam of the temple on 05.03.1982 out of the donations collected from the public and that the temple was constructed in poromboke land and no definite period of the origin could be traced.
9. Be that as it may, the oral evidence adduced by P.W2 and 3 would indicate that the appellant has been in the management of the temple continuously even earlier to the proceedings from the Department. P.W2 and 3 are aged 47 yrs. and 61 yrs. respectively. P.W2 would say that the temple is being hereditarily managed by the plaintiffs' family, that earlier Rasappa Gounder was managing the temple, that the plaintiff performed kumbabishekam defraying the expenses for daily poojas, that no donation is collected from the public and the public used to give pooja articles and that he does not know whether anybody else, apart from the plaintiffs' family members, managed the temple.
10. P.W3 would depose that the plaintiff does not collect any donation from the public and nobody offered anything to the temple and nobody collects any amount. He is supportive to the case of the plaintiff. P.W1, the appellant in his evidence has stated that the public, while they come for worship in the temple may offer anything to the temple. He does not say that he used to collect donations from the public. In the cross examination, he says that the public voluntarily gives a minimal amount and he contributed a major share and the public offered articles for kumbabishekam and they did not pay any amount. It is his further evidence that during festival seasons lease amount would be collected from the temporary shop owners by means of which he put up constructions in the temple alongwith his own contributions.
11. D.W1 is Inspector of the Department who would say that in the year 1979 and 1982, the Department appointed the plaintiff as a trustee, that he was not appointed as hereditary trustee and even afterwards he was appointed as a trustee alone, that the management of the temple is being run from the income available from the shops around the temple. In the cross examination, he would state that in the year 1984, one Ravikumar was working as Inspector in the Department and he (D.W1) has been working for about three months only, that the said Ravikumar after enquiry submitted a report to the Deputy Commissioner and Ex.A9 is the copy of his report, that the contribution and the auditing charges are being paid by the plaintiff and Ex.A10 series, three in number are the receipts issued by the Inspector of HR & CE Department, Salem. D.W1 would also say that in those receipts, the plaintiff is mentioned as hereditary trustee.
12. While this court scrutinizes Ex.A10 series, it comes to light that those receipts were issued to the appellant for receipt of contribution to the Department in his capacity as hereditary trustee. In two receipts dated 08.09.99 and 09.05.91, he is mentioned as ? TAMIL? and in another receipt dated 08.05.1988, he is mentioned as ? TAMIL?. It is significant to state that in the printed receipts, the words ? TAMIL? have been printed and between both the words, the letter ?g? and the word ?guk;giu? have been written by pen by the Inspector of the Department. Ex.A10 series is a piece of evidence which signifies the fact that earlier to the filing of the suit, the appellant was recognised as hereditary trustee by the Department and its importance could not be ignored by the Court. Neither it is pleaded in the written statement not is it stated by D.W1 as to why in the receipts the appellant was described as hereditary trustee.
13. [a] Ex.A9 is the deposition of Ravikumar, the then Inspector of HR & CE Department before the Deputy Commissioner in the proceedings under Section 6 (b) of the Act. He had deposed that on 08.05.87, on the direction of the Deputy Commissioner, he conducted an enquiry and submitted a report marked as Ex.C1. In his cross examination in Ex.A9, he has come out with versions that the enquiry revealed that Marappa Gounder, paternal grand father of this appellant constructed the temple and after the death of Marappa Gounder, his elder son Rasappa Gounder was looking after the management whose elder son is the appellant and that there is no evidence to show that anybody else other than the family members of the appellant managed the temple. He also adds that one Kandasamy Gounder paid contribution to Department on two occasions. It is not shown who is the said Kandasamy Gounder.
13 [b] It is his further evidence that a sum of Rs.2,500/- per annum is received as income from the temple poromboke land and further expenditures are met by the appellant, that with the knowledge of the Department, he used to lease the temple poromboke land, that the appellant and his family members have constructed sanctum sanctorum, that the appellant has installed presiding deity and procession deity and that nobody else other than the appellant had come forward stating that they have got right in the temple. The evidence of said Ravikumar who is the official of the Department and Ex.A10 series plays a crucial role in this case. His evidence is part of records. There is nothing to discredit these materials.
14. The corroborative evidence are Ex. A7 and A8 which are the notices printed by the appellant on the occasions of the temple annual festival and kumbabishekam dated 05.03.82 respectively. The appellant has also taken steps to get the plan approved from Town Panchayat office, Vellore. He presented the plan for construction of temple before the said authority which was returned with a covering letter advising him to get sanction from the District Collector as per Section 6 (4) of the Tamil Nadu District Municipalities Rules. It is not shown whether the appellant has taken further steps to get the plan approved. The sanction was refused by the said Town Panchayat. Even though the appellant got defeated in his attempt to get the plan approved for the construction of the temple, it indicates that in the year 1980, he took steps to construct the temple building.
15. Much was said about the import of Section 6 (11) of the Act. The learned counsel for the appellant Mr.R.Subramanian would contend that the appellant has produced sufficient documents and adduced adequate oral evidence to establish that he has been managing the temple as hereditary trustee and that as per the requirements of the statute also, he has to be recognised as hereditary trustee.
16. Arguing on the other side of the coin, the learned Additional Government Pleader (HR & CE) Mr.M.R.Murugesan would submit that there are discrepancies among the oral account of P.W1 to 3 as regards offering donations to the temple, that the appellant has woefully failed to establish the fact, who constructed the temple and who managed the temple earlier to his appointment by the Department and that he could not be brought within the purview of the ingredients in Section 6 (11) of the Act.
Section 6 (11) of the Act reads thus -
?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.?
17. In order to hold an individual is a ?hereditary trustee?, he has to fulfill any one of the following three conditions as per the above provision -
(1) Succession to office which devolves by hereditary right
(2) regulated by usage
(3) specifically provided for by the founder, so long as such scheme of succession is in force.
18. Of the above aforesaid three conditions, in my considered opinion, the appellant could be termed as a hereditary trustee under the first one. In other words, the appellant suits for the first requirement as mentioned above. By virtue of Ex.A10, the Department has recognised him as hereditary trustee. There is no evidence to show that by usage or by provisions by the founder under a scheme, the appellant was appointed as hereditary trustee. As far as the first condition is concerned, there is ample evidence to show that the appellant has been the hereditary trustee even though there is no documentary piece of evidence to establish that Marappa Gounder installed the idol and put up the superstructure and after his life time, his son Rasappan Gounder came into Management.
19. The factum of the possession of the temple by the appellant is evident from the unassailable evidence A10 series which would prove that he has been in Management after his forefathers. The preponderance of probabilities in this case would vividly show that the appellant has been managing the temple in the capacity of hereditary trustee. It may be observed that had the Department appointed him as sole trustee in the year 1982, afterwards, in the year 1988 and 1991, there could not have been any occasion for the Department to describe the appellant as hereditary trustee in the receipts for payment of contribution.
20. The learned counsel for the appellant has placed much reliance on a Division Bench decision of this court reported in AIR 1972 Mad 119 [Venkataraman v. L.A. Thangappa Gounder] wherein it is held as follows -
6. .................. The allegation in the plaints is that for over three generations the trusteeship had been in the family of the plaintiffs and their predecessors in title. This has been admitted in the written statement filed on behalf of the Commissioner, Hindu Religious and Charitable Endowments. Though this allegation is denied by the non-hereditary trustees appointed in pursuance of the resolution of the Area Committee, the Endowment Board having conceded this right, it can be safely held that the plaintiffs and their predecessors-in-title were in possession and enjoyment of the lands attached to the respective temples as de facto trustees. It has been held in Ramados v. Hanumantha Rao, [(1913) ILR 36 Mad 364 ] that where an office of trustees was held by the members of a certain family for nearly 100 years and by nobody else the office must be held to be hereditary in their family.
21. He also cites another decision of this Court in 2008 (1) L.W. 945 [P.K.Duraisami v. Commissioner, H.R. & C.E., Admn. & another] in which the learned Judge has held that even after the appointment of the trustee by the Department, the trustee can claim hereditary trusteeship, if he is entitled to claim such right based on the evidence.
22. The learned counsel for the respondent would draw attention of this Court to a decision of this Court reported in 2009 (4) CTC 563 [The Commissioner, H.R. & C.E. Admn. Department v. K.Ramanathan] wherein it is observed that when the plaintiff is not able to prove that temple was constructed by his ancestors and the fact that the temple is situated in poromboke land and the villagers are worshipping deity as of right and Viswarkarma Community people are performing poojas in Adi month would go to show that the temple is a Public Temple. The learned judge has culled out a decision of the Supreme Court in T.V.Mahalinga Iyer v. State
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of Madras, 1981 (1) SCC 445 in which it is held as follows - ?............so far as Tamil Nadu is concerned, there is an initial presumption that a temple is a public one, it being up to the party who claims that it is a private temple, to establish that fact affirmatively. Of course, this initial presumption must be rebutted by clinching testimony and the crucial question is as to whether the public worship in the temple is as of right?. 23. Before this Court, presently the dispute is not whether the suit temple is public or private. It is true that the temple has been constructed in a poromboke land and at times public also make offerings. But it is in evidence that the appellant contributes a lion?s share in the management of the temple. An overhaul of the evidence and materials on record would candidly reveal that the appellant has been holding the office of trusteeship hereditarily and hence he has to be declared as hereditary trustee. The point framed by this Court is answered in affirmative. 24. As discussed in the earlier paragraphs of this judgment, the Department has consciously recognized him as hereditary trustee and the Deputy Commissioner has applied his mind in analysing the evidence on record and declared the appellant as hereditary trustee. This Court is not in acceptance with the observations and decision of the defendant in his suo motu proceedings which is under challenge before this Court. The proceedings of the defendant is hereby set aside and the order of the Deputy Commissioner declaring the appellant as hereditary trustee for the suit temple is restored and upheld. 25. In the above circumstances, the judgment and decree of the trial court invites interference from this Court which are set aside and the appeal deserves to be allowed. The suit in O.S.No.329 of 1992 on the file of Sub Court, Namakkam is decreed as prayed for. 26. In the result, the appeal is allowed. No costs.