Judgment :- 1. This suit under Order I, R.8, C.P.C. has been filed by the representatives of a community called “Beri Chetty” of Madras for and on behalf of the said community and for the benefit of the entire community, who are alleged to be the followers of Sri Dharma-sivacharya Mutt, under the following circumstances: 2. The first defendant is the State of Tamil Nadu represented by its Secretary, Commercial Taxes and Religious Endowments. The second defendant is the commissioner for Hindu Religious and Charitable Endowments, Madras. The third defendant and fourth defendant viz. P.E. Raghava Chetty and K. Venugopal Chetty, died in the years 1986 and 1981 respectively. The fifth defendant Sri Muthukumaraswamy Devasthanam alias Sri Kandaswami Temple, hereinafter referred to as ‘Kandhakottam’, is represented by its Chairma n of the Board of Trustees, viz., P. Sitaraman; the other trustees being O. Radhakrishnan, V. M. Sadasivam and K. R. Shanmugam. The sixth defendant P.E. Rubalingam Chetty has been added as per order of Court dated 1-7-1976 in Application No. 1426 of 1976. The seventh defendant E. Sambasivam has been added as per order of Court dated 12-4-1977 in Application No. 606 of 1977. 3. The suit is for a declaration that the members of the Beri Chetty community being the followers of Sri Dharma Sivacharya Mutt, is a religious denomination and as such is entitled to exclusively own, administer, manage and conduct the affairs of ‘Kandhakottam’ at 84, Rasappa Chetty Street, Madras-3, as per the terms of the scheme decree passed in C.S. No. 117 of 1907 through the chosen representatives of the Beri Chetty community. 4. The case of the plaintiffs is as follows: The plaintiffs belong to a community called Beri Chetty, a sub sect of Vysya community. They are the disciples of Sri Dharmasivacharya Mutt, which is a Hindu religious denomination having its own customs, religious rites and rituals intended for the spiritual benefit of their caste members. They have their own common faith and organisation, both religious and secular, with their own distinctive name Sri Dharmasivacharya Mutt. The community resides mostly in George Town and Park Town areas. The followers of Dharmasivacharya are prohibited from marrying other members of the community who do not profess or follow the Dharmasivacharya Mutt and its tenets. The community has its own idol for worship named as Sri Visweswara Swami. The community resides mostly in George Town and Park Town areas. The followers of Dharmasivacharya are prohibited from marrying other members of the community who do not profess or follow the Dharmasivacharya Mutt and its tenets. The community has its own idol for worship named as Sri Visweswara Swami. The community used to have the benefit of their perceptor or purohit and receive the benedictions on all occasions of spiritual service. The denomination is subdivided into various castes called ‘Vaguppus’ based on the tenets of the Dharmasivacharya Mutt. The disciples of the said Mutt have been owning, managing and conducting ‘Kandhakottam’ for their communal worship from 1897 onwards. The properties of the Mutt are managed by chosen representatives called Dharmakarthas who are elected every five year s by the general body of the Beri Chetty community according to the electoral rolls. Plaintiffs 1 to 5, as such members of the Beri Chetty community are prosecuting the suit. 5. In C.S. No. 117 of 1907 on the file of this Court, a scheme has been framed with reference to the management of the temple. Ex.P1 is the plaint in that suit. Ex.P2 dated 12.1.1910 is the scheme framed with reference to the suit temple. The decisions reported in Thambu Chetty, Subbaraya Chetty v. A.T. Arundale 1, and Krishnaswamy Chetty and others v. Veerasamy Chetty 2, throw considerable light as to the claim of the plaintiffs that Beri Chetties are a religious denomination and that ‘Kandhakottam’ is a temple intended for the said religious denomination. Ex.P24 dated 3.2.1893, the scheme framed in C.S. No. 376 of 1883, with reference to the administration of the Dharmasivacharya Mutt, as well as Ex.P2, the scheme framed in C.S. ‘No. 117 of 1907, prove the claim of the plaintiffs that the community of Beri Chetties is a religious denomination and the suit temple is a denomination temple. 6. While so, in the year 1952, the Endowments Department listed the temple under the provisions of the Hindu Religious and Charitable Endowments Act hereinafter referred to as ‘the Act’ in O.A. No. 74 of 1952. The then Deputy Commissioner of the Hindu Religious and Charitable Endowments Department, hereinafter referred to as H.R.& C.E. Dept, sought to negative the scheme framed in C.S. No. 117 of 1907 and attempted to interfere in the internal administration of the suit temple. The then Deputy Commissioner of the Hindu Religious and Charitable Endowments Department, hereinafter referred to as H.R.& C.E. Dept, sought to negative the scheme framed in C.S. No. 117 of 1907 and attempted to interfere in the internal administration of the suit temple. The then Deputy Commissione r, by his order dated 7.4.1952, upheld the contentions of the then trustees of the temple and held that the Trusteeship of the temple was of hereditary in character. However, on appeal, by the Department, the order of the Deputy Commissioner was reversed by the Commissioner by order dated 17.7.1957, according to which, the Commissioner has held that the Trusteeship to the temple is not hereditary. Thereafter, the then trustees of the temple, viz., K. Subramania Chettiar, S.N. Venugopala Chettiar, P.E. Raghava Chetty (3rd defendant herein) and K. Venugopala Chetty (4th defendant herein), filed O.S. No. 2364 of 1957 on the file of the City Civil Court, Madras, seeking to set aside the order of the Commissioner dated 17.7.1957 and also prayed for a declaration that the suit temple exclusively belong to the Beri Chetty community following the religious tenets and percepts of Abinava Dharmasivacharya Mutt, and as such is entitled to the protection given to the religious institution which is a denominational one under Article 26 of the Constitution read with the provisions of the Act. Ex.P4 is the plaint and Ex.P5 is the written statement filed by first defendant therein. Ex.P4 is the plaint and Ex.P5 is the written statement filed by first defendant therein. After prolonged and elaborate hearing and on the basis of the oral and documentary evidence, the City Civil Court, by its judgment Ex.P6 dated 5.11.1958, came to the conclusion that the suit temple is denominational in character, but was in a dilemma with regard to the powers of the Commissioner to interfere with the autonomy and exclusive control of the management of the suit temple by Beri Chetties and referred Issues 6 to 8 to the opinion of the High Court as provided under S.113 C.P.C. The reference (R.C. No. 10/1958) was heard by the I Bench consisting of the then Chief Justice Ramachandra Iyer and Justice Ramakrishnan, On 19.4.1961, the then Advocate General appearing on behalf of the Commissioner, H.R.& C.E. Dept, is alleged to have represented before the I Bench that, pending disposal of O.S. No. 2364 of 1957 or any appeal that may be filed therefrom, the Commissioner did not propose to make any appointment of Trustees under S.47 of the Act and that the Commissioner should not be considered to accept the correctness of the decision of the trial Court that the temple belongs to a denomination. For proper appreciation, the relevant passage in that judgment, marked as Ex.P11 dated 19.4.1961, is extracted hereunder: “The Commissioner agrees that, having regard to the finding of the trial Court that the temple is an institution belonging to a denomination, to which Art. 26 would apply, he does not propose to make any appointment of trustees under S.39 (now, S.47 of Act 22 of 1959), pending disposal of O.S. No. 2364 of 1957 or any appeal that may be filed therefrom. The Commissioner however makes it clear that he should not thereby be deemed to accept the correctness of the decision of the lower Court that the temple belongs to a denomination. The Commissioner also states that he will take appropriate proceedings for the election of trustee in the place of the plaintiff or such of them whose term has expired, in accordance with the scheme framed by this Court in C.S. No. 117 of 1907. In view of the statement made by the Commissioner that he does not propose to appoint new trustees during the pendency of the suit and any appeal therefrom, it is unnecessary to answer the question referred to us. In view of the statement made by the Commissioner that he does not propose to appoint new trustees during the pendency of the suit and any appeal therefrom, it is unnecessary to answer the question referred to us. It is needless to point out that we are not here concerned with the rights of the parties to the reference either to support or to object to the various matters decided in the lower Court and also as to the maintainability of the suit or the prayers contained therein.” Thereafter, a compromise was entered into between the plaintiffs and the H.R.& C.E. Dept., on 24.9.1963 in the suit. Ex.P12 is the memo of compromise, Ex.P7 is the judgment and Ex.P23 is the decree. According to the plaintiffs, the aforesaid compromise is not binding upon the community as it has been entered into with the second defendant herein, without realising the purpose for which the suit had been filed. As a matter of fact, there was no proper representation on behalf of the community to enter into a compromise with the second defendant. The compromise is not binding upon them because the first plaintiff Subramania Chettys term of office expired long prior to the date of compromise, the second plaintiff Venugopal Chetty was no more, the third plaintiff Raghava Chetty was acting only as a Receiver and not as a trustee, since his period of Trusteeship came to amend on 4.12.1959, and only the fourth plaintiff Venugopal Chetty was alive. Under Ex.P8 dated 5.12.1959, Raghava Chetty and Venugopal Chetty have been appointed Receivers, till the disposal of the reference pending on the file of the High Court. Under Ex.P9 dated 18.2.1960, the period of Receivership of plaintiffs 3 and 4 therein were extended till the disposal of the reference before the High Court. Ex.P10 is the order passed in I.A. No. 1325 of 1959. Since the I Bench pronounced its judgment in R.C. No. 10 of 1958 on 19.4.1969, it may be noticed that the compromise entered into on 24.9.1963, was not by persons qualified, to represent the temple and as such the compromise is not binding upon the Beri Chetties. Ex.P10 is the order passed in I.A. No. 1325 of 1959. Since the I Bench pronounced its judgment in R.C. No. 10 of 1958 on 19.4.1969, it may be noticed that the compromise entered into on 24.9.1963, was not by persons qualified, to represent the temple and as such the compromise is not binding upon the Beri Chetties. The conduct on the part of the third and fourth plaintiffs in O.S. No. 2364 of 1957, who are defendants 3 and 4 herein, in entering into a compromise is nothing but a fraud on the members of the Beri Chetty community and it is in derogation of the scheme framed in C.S. No. 117 of 1907, Ex.P2 dated 12.1.1910. The compromise has been entered into on the assurance given to third defendant herein that his continuance of trusteeship of the temple would not be disturbed and as such the third defendant along with four others have been nominated as trustees of the suit temple, overlooking the rights and interests of the community, for a period of five years from 10.8.1964, under Ex.D3(a). 7. The further case of the plaintiffs herein is that the memo of compromise dated 24.9.1963 was not signed by the plaintiffs, but only by their counsel, and is wholly ultra vires of the powers given to the trustees. They have entered into the compromise without the consultation or knowledge or concurrence of the general body of the Beri Chetty community. Their conduct in submitting to a compromise, amounted to bartering away the valuable rights vested in the Beri Chetty community given under Article 26 of the Constitution read with S.107 of the Act. 8. While so, in or about 1969, defendants 1 and 2 herein, sought to interfere with the affairs of the temple by seeking to call for applications for appointment of trustees of the suit temple. Then only the plaintiffs came to know about the compromise decree and as such filed W.P. No. 2467 of 1969 for a writ of prohibition against defendants 1 and 2 from exercising such powers. The writ petition was allowed on 26.7.1972 by Rama-prasada Rao, J., as he then was, upholding the contentions of the plaintiffs herein and made the rule nisi absolute against defendants 1 and 2. The writ petition was allowed on 26.7.1972 by Rama-prasada Rao, J., as he then was, upholding the contentions of the plaintiffs herein and made the rule nisi absolute against defendants 1 and 2. Ex P13 is the affidavit filed in support of the writ petition, Ex.P14 is the writ petition, Ex.P15 is the counter filed by the second defendant herein, Ex.P17 is the judgment and Ex.P16 is the decreetal order in the aforesaid writ petition. 9. The second defendant herein, aggrieved by the order passed in the writ petition, preferred W.A. No. 9 of 1973. Ex.P18 is the memo of grounds, Ex.P19 dated 28.1.1976 is the judgment and Ex.P20 is the decreetal order passed in the writ appeal. The I Bench, hearing the writ appeal, observed as follows: “We are of the opinion that, in the particular circumstance, the question based on Art. 26 of the Constitution does not arise. There was undoubtedly a finding in the suit ending in a compromise decree that the temple was a denominational one that was accepted by the Department. But, while doing so, the other terms of the compromise which we have already noticed, were agreed to between the parties; all those terms became part of the compromise decree; and that compromise decree is binding on the parties thereto, who were trustees who represented the temple, on the one hand and the Department, on the other, The trustees in the earlier suit had the necessary, legal capacity to represent the temple, because they were appointed under and by the terms of the compromise decree. So long as that compromise decree stands, its terms should be given effect to. The respondents are members of the community and they have not acted in a representative capacity in the petition from which the appeal arises. If they felt that they were not bound by the decree, it was for them to have instituted a suit to have the compromise decree set aside on grounds open to them, if at all, They could not ignore the compromise decree which is a valid one, and, merely on the basis of the finding recorded in the suit, and ignoring the other terms of the compromise in the compromise decree, take a stand based on S.107 of Tamil Nadu Act 22 of 1959 read with Art. 26 of the Constitution. The compromise decree was passed in a contested suit between parties who were legally there in the proceedings. We are therefore of the opinion that, while the compromise decree is still in force, the Commissioner had the right to issue the notice which he did. The appeal is therefore allowed. No costs. The respondents, if they wish to institute a suit to have the compromise decree set aside, will have three months time to do so. During this period the trustees who are functioning under the orders of this Court, will continue to function, and only for that period”. 10. In pursuance of the order of the I Bench in W.A. No. 9 of 1973 dated 28.1.1976, the plaintiffs have filed the suit for the following reliefs, as stated in the outset: “(a) declaring that the decree dated 24.9.1963 in O.S. No. 2364 of 1957 on the file of the City Civil Court, Madras, in so far as it offends and affects the constitutional rights of the members of the Beri Chetty community being followers of Sri Dharmasivacharya Math to own and manage the affairs of Sri Kandaswami Temple alias Sri Muthukumaraswami Devasthanam, by themselves in terms of scheme decree being C.S. No. 117 of 1907 on the file of this Honble Court, by seeking to empower the second defendant to appoint Trustees is illegal, void and without jurisdiction and not binding on the members of the Beri Chetty community much less the plaintiffs herein. (1-a) declaring that the members of the Beri Chetty community being the followers of Sri Abinava Dharma Sivachariar Madam as a religious denomination are entitled to exclusively own, administer, manage and conduct the affairs of Sri Kandaswamy Temple alias Sri Muthukumaraswami Devasthanam at No. 84, Rasappa Chetty Street, through their chosen representatives. (this prayer was inserted as per order dated 4.10.1985 in Appln. Nos. (this prayer was inserted as per order dated 4.10.1985 in Appln. Nos. 3347 and 3348 of 1985) (b) for a permanent injunction restraining the 2nd defendant, his officers, servants, agents and others from interfering in any way with the exclusive right of the members of the Beri Chetty community to elect trustees for Sri Kandaswami temple alias Sri Muthukumaraswami Devasthanam in terms of the scheme decree of this Honble Court in C.S. No. 117 of 1907 dated 11.1.1910 as amended on 31.3.1921 and the powers of the Denominational community of Hindu Beri Chetty community relating to its internal administration of the suit temple, etc. (c) directing the defendants to pay the costs of the suit.” 11. According to the first defendant, the suit temple is a Public Hindu Religious Institution within the meaning of S.6(20) of the Act. The compromise decree Ex.P23 has become final and conclusive. There was no collusion between first defendant and the plaintiff in O.S. No. 2364 of 1959 on the file of the City Civil Court, nor was there any fraud played by defendants 3 and 4, in entering into the compromise. The compromise entered into by the counsel for the plaintiffs who was well versed in laws relating to the Hindu Religious and Charitable Endowments is binding and the counsel had every authority to enter into the compromise on behalf of the plaintiffs therein. The compromise provided for payment of costs to the defendant in the suit by the trustees and the trustees did pay the costs in accordance with the compromise from and out of the temple funds. As such, the then trustees were fully aware of the compromise and agreed to the compromise. The only right of Beri Chetty community is to claim management by a member or members of that community and that right has not been bartered away or interfered with by entering into the compromise. Under the terms of the compromise, the second defendant by order dated 10.8.1964, Ex. D3(a), appointed given persons as trustees of the temple after inviting applications. Under the terms of the compromise, the second defendant by order dated 10.8.1964, Ex. D3(a), appointed given persons as trustees of the temple after inviting applications. All the persons so appointed were persons belonging to the Beri Chetty community and they acted as trustees for the full period as per the scheme decree of the High Court, After the expiry of five years, the second defendant is bound to initiate proceedings for appointment of new trustees and as such issued notice dated 28.5.1969 calling for applications for appointment of trustees. It was at this stage, the first plaintiff along with others filed W.P. No. 2467 of 1969 questioning the action of the Commissioner inviting applications for appointment of new trustees. Even though the writ petition was allowed on 26.7.1972, the order passed by Ramaprasada Rao, J., as he then was, was set aside in W.A. No. 9 of 1973 as per Ex.P19 dated 28.1.1976. It is in view of the liberty given to the writ petitioners, the present suit has been filed and as such the plaintiffs are bound to prove that they form a religious denomination or a section thereof and that the suit temple has been established by such a religious denomination for religious and charitable purposes, as provided under Art. 26 of the Constitution. 12. The first defendant also filed an additional written statement disputing the claim of the plaintiffs. The third defendant Raghava Chetty and the fourth defendant Venugopal Chetty died in 1986 and 1981 respectively. The sixth defendant Rubalingam Chetty who has been added as per order in Appln. No. 1473 of 1976 dated 1.7.1976, has filed a separate written statement. While supporting the plaintiffs, he prayed for the early removal of the present trustees from the office on the ground of mismanagement. The seventh defendant Sambasivam, who was added as per order in Appln. No. 606 of 1977 dated 12.4.1977, also filed a separate written statement and far from supporting the plaintiffs, be supported the Department. 13. V. Ramaswami, J. framed the following issues for trial on 12.8.1977: “1. The seventh defendant Sambasivam, who was added as per order in Appln. No. 606 of 1977 dated 12.4.1977, also filed a separate written statement and far from supporting the plaintiffs, be supported the Department. 13. V. Ramaswami, J. framed the following issues for trial on 12.8.1977: “1. Is the decree in O.S. No. 2467 of 1959, on the file of the City Civil Court, Madras, void, non est or unenforceable in so far as it vests the right of appointing trustees for the Sri Muthukumaraswami temple, in the second defendant or whether the decree is enforceable in full as contended by the defendants? 2. What reliefs the plaintiffs are entitled to? K.M. Natarajan, J. framed the following additional issue on 1.11.1985: “Whether the suit temple is a denominational one as contended by the plaintiff?” 14. On behalf of the plaintiffs, the third plaintiff V.R. Soundararajan gave evidence and Exs.P1 to P27 have been marked. On behalf of defendants 1 and 2, one Rajagopalan, the Superintendent of the H.R. & C.E. Board, gave evidence as D.W.1 and another T. Ekambaram, Retired Under-Secretary to Government of Tamil Nadu, gave evidence as D.W.2, and Exs.D1 to D10 have been marked. 15. Even though Issue No. 1 has been framed first, I find it would be proper to deal with the additional issue with reference to the denominational nature of the suit temple. In order to find out whether the suit temple is a denominational one or not, one has to find out whether the community, which claims the suit temple as a denominational temple, is a religious denomination. In support of the claim that the Beri Chetty community is a religious denomination, the plaintiffs rely upon the evidentiary value of the observations made in Thambu Chetty, Subbaraya Chetty v. A.T. Arundale 1. Krishnaswamy Chetty and others v. Veerasamy Chetty 2, the findings given by the City Civil Court in O.S. No. 2364 of 1957, (Ex.P6 dated 5.11.1958), and the judgment of Ramaprasada Rao, J., as he then was, in W.P. No. 2467 of 1969, (Ex.P17 dated 26.7.1972), in spite of the fact that the above said findings have been set at nought by the I Bench in W.A. No. 9 of 1973 (Ex.P19 dated 28.1.1976). 16. 16. With a view to give a definite answer to the question raised, one has to find out whether the plaintiffs have proved that they are a religious denomination and the suit temple has been established and maintained for religious and charitable purposes by the said religious denomination. 17. A perusal of the oral and documentary evidence clearly shows that the plaintiffs have failed to prove that they are a religious denomination and that the suit temple has been established and maintained by the religious denomination for religious and charitable purposes. My reasons are as follows: 18. To find out whether the plaintiffs constitute a religious denomination, one has to see what constitutes a ‘religious denomination’. The term ‘religious denomination’ has not been defined in any one of the enactments or in the Constitution. First of all, one has to understand what constitutes a ‘religion’. According to the Oxford Dictionary, ‘religion’ means a particular system of faith and worship. According to the Chambers Dictionary, it means: “belief in, recognition of, or an awakened sense of, a higher unseen controlling power or powers, with the emotion and morality connected therewith; monastic life; a monastic order.” According to the Oxford Dictionary, ‘denomination’ means a collection of individual class together under the same name, equivalent to a religious sect or a body having a common faith or organisation and designated by a distinctive name. The same meaning is given in the Chambers Dictionary also. In this case, one has to find out whether the plaintiffs belong to a religious denomination, since all the plaintiffs have stated in the plaint that they belong to Hindu religion, The word ‘Hindu’ itself has not been defined in any one of the texts, nor in any one of the Judge made laws. The definition of a ‘Hindu’, is also not available in the ancient texts. Even the renowned author of the Hindu law, viz., Mulla has not defined the word ‘Hindu’. According to the Concise Oxford Dictionary, ‘Hindu’ means adherent of Hinduism; Indian, whereas the Chambers Dictionary defines ‘Hindu’ as a member of any of the races of Hindustan or India, a believer in a form of Brahmanism. Even the renowned author of the Hindu law, viz., Mulla has not defined the word ‘Hindu’. According to the Concise Oxford Dictionary, ‘Hindu’ means adherent of Hinduism; Indian, whereas the Chambers Dictionary defines ‘Hindu’ as a member of any of the races of Hindustan or India, a believer in a form of Brahmanism. A perusal of the history shows that the name ‘Hindu’ was given by the British authorities while dispensing justice with reference to the inheritance, partition, marriage and other personal laws of the inhabitants of this nation who are not Muslims, Christians Buddhists, Jains. The British Administrators sought the help of the local English knowing Sanskrit-Pundits who quoted widely the Vedas and Smritis (collection of precepts handed over by Rishis or sages of antiquity in Sanskrit). Ultimately, they got inspiration from the works of “Manu”. Number of commentaries were written on Manus code during the post-smrithi period by several Sanskrit scholars, such as Govindaraja, Kulluka and others. Manus smriti was followed by the code of Yajnavalkya. The authority of Yajnavalkyas smriti was greatly enhanced by the edifice of Mitakshara, raised upon it by Vignaneswara whose commentary obtained pre-eminent importance in the greater part of India. One another smriti that contributed to the Judge made laws is Narada Smriti which is considered to be an abridgement of the great work of Manu. Later on, the work of Kautilya called Artnasastra was quoted in numerous ancient works and historical monographs. By passage of time, the law came to be ascertained and accepted in the main, from the commentaries and digests in different parts of India. Ultimately, two principal schools of law, viz., Mitakshara and Dhayabaga prevailed. Under Mitakshara school, a number of sub-schools came into existence. The Judicial Committee of Privy Council in Collector of Madura v. Muthu ratmalinga 1 has come to the conclusion that the common aspects in all the different schools constitute sources of Hindu law Mitakshara law which is universally accepted by all the schools, except that of Bengal, as of the highest authority, was a commentary on instructions of Yajnavalkya. The Dhayabaga, which wherever differs from Mitakshara, prevails in Bengal. Mitakshara prevails in the rest of India. These two schools, born of diversity of doctrines, marked a new stage in the evolution of the law called Hindu law as advocated and administered by the British Administrators. The Dhayabaga, which wherever differs from Mitakshara, prevails in Bengal. Mitakshara prevails in the rest of India. These two schools, born of diversity of doctrines, marked a new stage in the evolution of the law called Hindu law as advocated and administered by the British Administrators. It is unnecessary to go into the question as to the differences between these two schools, except to the extent stating that the so called Hindu Law consisted of two schools, viz., Mitakshara and Dhayabaga, and Mitakshara is sub divided into four minor schools: (1) Benares school, (ii) Mithila school, (iii) Maharashtra or Bombay school (western India), and (iv) Dravida or Madras school (southern India). The B mares school covered practically the whole of northern India, with the exception of Punjab where Mitakshara law has on certain points been considerably modified by customs. The Mithila school prevails in Tirhoot and certain districts in the 1. 1868 XII M.I.A. northern part of Bihar. The Bombay school covers western India including the whole of the old Presidency of Bombay as also Bihar. The Dravida or Madras school covers southern India including Karnataka, Andhra, Tamil Nadu, Kerala. Even though these schools differ in some respects in matters relating to adoption and inheritance, they acknowledge the supreme authority of Mitakshara. However, in Gujarat as well as in the island of Bombay and northern Konkan, Mayukha has taken the place of Mitakshara. As I stated earlier, the word ‘Hindu’ was given by the British Administrators to the inhabitants of India, who are not Christians, Muslims, Parsis or Jews. The alleged Hindu Religion consists of four castes: 1. Brahmins or Priestly Caste 2. Kshatriyas or warriors Caste 3. Vaisyas or agricultural Caste and, 4. Sudras. The members of the first three castes are called twice born and the second birth or regeneration consists in the study of Vedas or sacred literature and in the performance of sacraments. All these are denied to Sudras, except the samskara of marriage. I am stating all these to understand precisely as to what constitutes a religion. A study of the Sanskrit texts in English and the law administered in pursuance thereof, clearly shows that there is no religion by the name ‘Hindu’. The word ‘Hindu’ covers various sects such as Brahmins, Kshatriyas, Vaisyas and Sudras, Brahmins are further sub-divided as Saivites and Vaishnvaites. Saivites consist of several sects and a so also Vaishnavites. A study of the Sanskrit texts in English and the law administered in pursuance thereof, clearly shows that there is no religion by the name ‘Hindu’. The word ‘Hindu’ covers various sects such as Brahmins, Kshatriyas, Vaisyas and Sudras, Brahmins are further sub-divided as Saivites and Vaishnvaites. Saivites consist of several sects and a so also Vaishnavites. For example, Vaishnavites consist of Thenkalai Brahmin and Vadakalai Brahmin, another sect called Sivalli Brahmins, who constitute a section of the followers of Madhavacharya who established Shirur Mutt at Udipi and another sect called Srivaishnavas, followers of the principles of Ramanuja. As far as Saivities are concerned, there are some who call themselves Lingaites. The Saivites Brahmins follow the great. Teacher “Sankara”. Even among the Saivites, there are two different divisions; one adhering to vegetarianism and other non-vegetarianism. Among the Sudras also there are two divisions; one, followers of Saivism who are both vegetarians and non-vegetarians, and the other, followers of Vishnu, who are both vegetarians and non-vegetarians. Each one of a sect may constitute a denomination. If one comprehends the aforesaid facts it will be very difficult to find a Hindu religion having a common faith, and a common founder because Hindu religion takes within its fold not only the four classes of persons viz., Brahmins, Kshatriyas, Vaisyas and Sudras, but also other religions viz., Sikhs, Jains and Buddhists. I am unable to comprehend as to how one religion can have several religions within its fold. It only shows that the so called Hindu religion has been coined for convenience. 19. Explanation II to Article 25 of the Constitution of India reads as follows: “In sub-C1.(b) of C1.(2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly”. A bare reading of Arts. 19. Explanation II to Article 25 of the Constitution of India reads as follows: “In sub-C1.(b) of C1.(2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly”. A bare reading of Arts. 25, 26, 29 and 30 of the Constitution, the Hindu Marriage Act 1955, the Hindu Succession Act 1956, the Hindu Minority and Guardianship Act 1956, and the Hindu Adoptions and Maintenance Act 1956 clearly show that the word ‘Hindu’ takes within its fold any person in India who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the so-called Hindu Law or by any custom or usage as part of that law, in respect of any of the matters dealt with in the provisions of the aforesaid Acts if those Acts had not been passed. The Acts apply to a person who is a Veerasaiva, a Lingaite or follower of a Brahmo Prarthana, or Arya Samaj, to any person who is a Buddhist, Jaina or Sikh by religion, but does not apply to Scheduled Tribe within the meaning of C1.(25) of Art. 366 of the Constitution, unless the Central Government by notification in the official gazette otherwise directs. It cannot be again said that Buddhism, Jainism and Sikhism are separate religions, and persons belonging to such religions may be called Hindus. However, to prove that Beri Chetty community is a religious denomination, entitled to the protection given under Art. 26 of the Constitution, the essential ingredients should be proved. 20. In The Commissioner, H.R. Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1, it is held that ‘religion’ is certainly a matter of faith with individual or communities and it is not necessarily theistic. There are so many well known religions in India like Buddhism and Jainism which do not have belief in God or any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a d octrine of belief. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a d octrine of belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion and these forms and observances might extend even to matters of food and dress. This observation of the Supreme Court may not apply after coming into force of the Hindu Succession Act, Hindu marriage Act and other Acts touching Hindus. 21. In S.P. Mittal v. Union of India 1, the Supreme Court had occasion to define the word ‘religion’ as follows: “The expression ‘Religion’ has, however, been sought to be defined in the ‘Words and Phrases’ Permanent Edn. 36A, p.461 onwards, as given below: “Religion is morality, with a sanction drawn from a future state of rewards and punishments. “The term ‘religion’ and ‘religious’ in ordinary usage are not rigid concepts. ‘Religion’ has reference to ones views of his relations to his Creator and to the obligations they impose of reverence for his being and character and of obedience to his will. “The word ‘religion’ in its primary sense (from ‘religare’, to rebind-bind back), imports, as applied to moral questions, only a recognition of a conscious duty to obey restraining principles of conduct. In such sense we suppose there is no one who will admit that he is without religion. ‘Religion’ is a bond uniting man to God, and virtue whose purpose is to render God worship due him as source of all being and principle of all government of things. ‘Religion’ has reference to mans relation to divinity; to the moral obligation of reverence and worship, Obedience and submission. It is the recognition of God as an object of worship, love and obedience; right feeling towards God, as highly apprehended. ‘Religion’ means the service and adoration of God or a God as expressed in forms of worship; an apprehension, awareness, or conviction of the existence of a Supreme Beingin any system of faith, doctrine and worship, as in the Christian religion, and the religions of the Orient; a particular system of faith or worship. ‘Religion’ means the service and adoration of God or a God as expressed in forms of worship; an apprehension, awareness, or conviction of the existence of a Supreme Beingin any system of faith, doctrine and worship, as in the Christian religion, and the religions of the Orient; a particular system of faith or worship. The term ‘religion’ as used in tax exemption law, simply includes: (1) a belief, not necessarily referring to super-natural powers; (2) a cult, involving a gregarious association openly expressing the belief; (3) a system of moral practice directly resulting from an adherence to the belief; and (4) an organization within the cult designed to observe the tenets or belief, the content of such belief being of no moment. While ‘religion’ in its broadest sense includes all forms of belief in the existence of superior beings capable of exercising power over the human race, as commonly accepted it means the formal recognition of God, as members of societies and associations, and the term, ‘a religious purpose’, as used in the constitutional provision exempting from taxation, property used for raligious purposes, means the use of property by a raligious society or body of persons as a place for public worship. ‘Religion’ is squaring human life with superhuman life. Belief in superhuman power and such an adjustment of human activities to the requirements of that power as may enable the individual believer to exist more happily is common to all ‘religions’. The term ‘religion’ has reference to ones views on his relations to his Creator, and to the obligations they impose of reverence for His being and character and obedience to his will. The term ‘religion’ has reference to ones views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. With mans relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with.” ‘Religion’ is intended to discipline the five senses and build up morality and compassion in the society. There cannot be a religion without discipline or compassion. A believer is courageous, honest and truthful. There cannot be a religion without discipline or compassion. A believer is courageous, honest and truthful. The courage of a knave cannot be equated with the courage of a religious man. The courage of a knave is a myth and will not stand before brutal force, whereas the courage of a religious is zeal will not yield to any force except to surrender to the Almighty God. 22. The word ‘Hinduism’, as per the Concise Oxford Dictionary means, “Religious and social system with adherents esp. in India, with belief in reincarnation, worship of several gods, and caste as basis of society;” Disclaimer: The text is computer generated. The user must verify the authenticity of the extracted portion with the certified copy of the judgment. This extract is taken from T.T. Kuppuswamy Chettiar v. State of Tamil Nadu, (1987) 100 LW 1031 , at page 1043 : According to Chambers Dictionary, ‘Hinduism’ means, “a member of any of the races of Hindustan or India; a believer in a form of Brahmanism; the religion and customs of the Hindus.” These definitions do not reflect the preachings of the Saiva Saints of the South. According to Saiva Saints, the various names of the deities and different forms of worship are aimed at one Almighty. According to Saint Manickavasagar, the Almighty is worshipped in different names and different forms; in Tamil it is, Tamil According to Saint Thayumanavar, Tamil This means that there is only one God and He is all pervasive and omnipotent with reference to whom the several religions fight with each other eternally that their form of God is superior to that of the others. Hence it cannot be stated that the so-called Hindu religion believes in plurality of Gods as defined in the Consise Oxford Dictionary. The so-called Hindu religion consists of various sects with opposing principles, not only by form of worship bat also in food, language and dress. 23. As per the decision reported in S.P. Mittal v. Union India 1, the words ‘religious denomination’ must take their colour from the word ‘religion’ and if this be so, the expression ‘religious denomination’ must satisfy three conditions: “1. It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well being, that is, a common faith; 2. common organisation; and 3. It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well being, that is, a common faith; 2. common organisation; and 3. designation by a distinctive name.” The test has been amplified further by the decision in Assistant Commissioner, H.R. & C.E., Salem, etc. v. Nattamai K.S. Ellappa, etc 2, wherein the learned Judge observed as follows: “It is well-known that communities were formed in this country on account of various reasons under several circumstances. It is not as if religion is the only common bond for the members of the communities found in this country. Instances are not wanting where communities were formed on the basis of profession or business or calling.” At another place, the following observations are made: “I am obliged to point out that very often the real question which arises for consideration is not understood or considered by the subordinate judiciary or the persons who conduct the cases before the Subordinate Courts. In most of the cases, it is taken for granted that if a temple is owned and administered by a community, the latter could be treated as a religious denomination automatically and the only question with reference to which evidence is let in by the parties is whether the community established and maintained the temple concerned. And if that question is answered in the affirmative, the Court comes to the conclusion that such temple is a denominational temple. It must also be noted that a denominational temple is confused with a private temple and the tests which are laid down for deciding the character of the temple as private or public are applied while determining the denominational character thereof. The fact that a temple would become a denominational temple only if it is established and maintained by a religious denomination or any section thereof is forgotten in many of the case. That has led to some wrong decisions which create an impression in the minds of litigants that once the ownership and administration of a temple are proved to be resting with a particular community or a section thereof, that would be sufficient to declare it to be a denominational temple”. 24. That has led to some wrong decisions which create an impression in the minds of litigants that once the ownership and administration of a temple are proved to be resting with a particular community or a section thereof, that would be sufficient to declare it to be a denominational temple”. 24. It shall be my endeavour to find out as to how far, in the instant case, the plaintiffs herein succeed in their claim that their community called Beri Chetty community is a religious denomination, by applying the tests stated in the aforesaid decisions. Before doing so, one has to keep in mind the preamble of the Constitution which conveys not only the mind of the framers of the Constitution but also depicts their expectations and aspirations as to how this ancient Nation of Nations should function as a sovereign, socialist, secular, democratic republic and to secure to all its citizens: “Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the nation.” The pre-amble of the Constitution is the basic structure of the Constitution as well as the mind of the Constitution. The Articles framed are intended to serve the spirit and substance of the preamble and Courts while interpreting the various Articles should bear in mind the spirit and substance of the preamble to the Constitution and should not interpret the provisions of the Constitution in derogation to the pith and substance of the pre amble which, according to me, forms the basic structure of the Constitution. If all the castes in India, under the guise that they form a sect by themselves and such claim is accepted as a religious denomination, it would only balkanise the Nation, which is already ridden with several castes, with much more denominations, contrary to the spirit of the preamble to the Constitution. Courts while dealing with religious denomination, while giving protection to such religious denominations as per the provisions of the Constitution, should bear in mind, the pre-amble of the Constitution and strive to keep alive the pith and substance of the preamble to the Constitution. 25. Courts while dealing with religious denomination, while giving protection to such religious denominations as per the provisions of the Constitution, should bear in mind, the pre-amble of the Constitution and strive to keep alive the pith and substance of the preamble to the Constitution. 25. The plaintiffs claim that they belong to Beri Chetty community which is a sub-sect of ‘Ariyavaisyar’ consisting of eighteen sub sects, as per Ex.P27, recourse to which the learned Government Advocate has no objection. Ariyavaisyar is shown as one of the Backward Classes throughout the State of Tamil Nadu, as per G.O. Ms. No. 1564, Social Welfare Department, dated 30.7.1985. According to the plaintiffs, people belonging to Beri Chetty community are followers of Dharmasivacharya Madam. It is not their ca se that Dharmasivacharya has established this sect of Beri Chetties from among the Ariyavaisyar. The existence of the said Madam is first stated in the decision in Thambu Chetty, Subbaraya Chetty v. A T. Arundale 1, which refers to the question of payment of house tax for the Madam called Dharmasivacharya Madam. The Madam was asked to pay the house tax under the Madras City Municipal Act. However, the persons who were managing the Madam claimed that the Madam is not liable to pay municipal house tax, it being a place of public worship, within the meaning of S.119 of the Madras City Municipal Act. The Magistrate held that the building was exempt from taxation, but referred the point for decision of the High Court at the request of the respondent, therein. A reading of the decision shows that the Madam was formed by one Dharmasivacharya and he worshipped an idol on behalf of the community and carried it with him when he ceased to reside in the Mutt. A person who was examined as a witness in that case claimed the Madam as one founded by his ancestor. He also deposed that the priest worshipped the idol and the people worshipped the priests. The decision also mentions that the priests went away in 1876, that he had not returned, that he had removed the idol with him and that public worship had been discontinued. The return of the priest to the Madam was found to be indefinite. The Madam has been used for holding meetings of castes and for feeding Brahmins. The decision also mentions that the priests went away in 1876, that he had not returned, that he had removed the idol with him and that public worship had been discontinued. The return of the priest to the Madam was found to be indefinite. The Madam has been used for holding meetings of castes and for feeding Brahmins. It was also used as a residence for the priest and other persons connected with the Madam. The High Court came to the conclusion, that since the Madam has been used as an accommodation for residence in the building, and the High Priest and other priests occasionally resided there, and that it is not used altogether at all times as a place of worship, and that the feeding of Brahmins, although it may be meritorious, is not what the Municipal Act contemplated as public worship and upheld the levy of house tax. The aforesaid decision completely disproves the claim of the plaintiffs that the Beri Ghetty community or the people belonging to the Beri Chetty community are followers of Dharmasivacharya Madam, nor is there anything to show in that decision that the community of Beri Chetty used to assemble in the Madam and observe the preachings and religious tenets of Dharmasivach arya. There is nothing in evidence to show that the Head of that Madam has returned thereafter and there used to be a religious head for Beri Chetty community from that time onwards. I am not able to comprehend as to how there could be a religious denomination without a “Guru”. This itself is sufficient to non-suit the plaintiffs. 26. It is not the case of the plaintiffs that the said Dharmasivacharya established the suit temple to preach his religious doctrines, which are peculiar to Beri chetty community. It is also not their case that their “Guru” alone was conducting pooja in the temple daily, according to the religious tenets preached by Dharmasivacharya. Contrary to that, it is accepted that Brahmins alone are doing pooja to the deities. In a religious denomination, there is no place for a person belonging to a different caste to offer poojas to the deity, whom the followers of that denomination worship, on behalf of the denomination. In course of time, public endowments came to be made in the temple and all classes of Hindus are taking part in the worship therein. In a religious denomination, there is no place for a person belonging to a different caste to offer poojas to the deity, whom the followers of that denomination worship, on behalf of the denomination. In course of time, public endowments came to be made in the temple and all classes of Hindus are taking part in the worship therein. The public are having access to the temple as a matter of right. The evidence let in on behalf of the plaintiffs prove that the community of Beri Chetty had been taking considerable interest in the maintenance of the temple since its inception, by one Mari Chetty along with one Kandappa Achariar. According to the decision of the Supreme Court in Commissioner, H.R.E. v. L.T. Swamiar of Sri Shirur Mutt 1. “It is well known that there can be no such thing as an unregulated and unrestricted right of entry in a public temple or other religious institution, for persons who are not connected with the spiritual functions thereof. It is a traditional custom universally observed not to allow access to any outsider to the particularly sacred parts of a temple, as for example, the place where the deity is located. There are also fixed hours of worship and rest for the idol when no disturbance or any member of the public is allowed.” It is always the Head or “Guru” of the denomination who offers special poojas on certain occasions to the exclusion of others. That is not the case established here. P.W.1 has not stated the peculiar doctrines or tenets that have been preached to them by Dharmasivacharya and that such doctrines or tenets are different from other doctrines and tenets preached by other religious heads. The Dharmasivacharya Madam was not connected with the suit temple in the year 1882, when the judgment in Thambu Chetty, Subbaraya Chetty v. A.T. Arundale 2 was delivered. 27. The next decision that is relied upon by the plaintiffs is Krishnaswamy Chetty and others v. Veerasamy Chetty 3, which arose as a result of a person belonging to Beri Chetty community having been expelled from the caste, on the ground that he had violated the rules of the caste. As per this decision, the Beri Chetty caste is sub-divided into 18 or 20 divisions. As per this decision, the Beri Chetty caste is sub-divided into 18 or 20 divisions. This is contrary to the plaint allegation that Ariyavaisyar consists of 18 divisions, and that Beri Chetty is one among them. In that case, a suit was instituted by four members of the Beri Chetty caste in regard to the endowment of a religious and charitable institution styled Dharmasivacharya Madam. The plaint prays, among other things, for an account being taken of properties constituting the endowment, for their being secured for the benefit of the Institution, for scheme of management being settled, for plaintiff 1 and other competent persons being appointed as Trustees and for adequate provision being made for the due administration of the endowment The plaint also specified the several charities performed in the Madam as well as in the maintenance of a priest called Dharmasivacharyar, in the performance of certain religious rites and ceremonies, and in the feeding of Brahmins on behalf and for the spiritual benefit of the whole caste. The contesting defendants in the suit have stated that a section of the caste called “Maligaikarar vaguppu” is not entitled to the benefit of the endowment as that section seceded from Dharmasivacharyar and became the disciples of another priest called Sattanada Gurukkal, about 200 years prior to 1886 in which year judgment was rendered. While deciding the points in issue in that suit, the High Court h ad occasion to deal with the suit temple as one of the temples for which a meeting of the caste (Beri Chetty) was held, for the election of Dharmakartha in 1879. From this, it cannot be said that the suit temple was established and maintained by the Dharmasivacharya who established the Madam which is being called in his name. Dealing with Dharmasivacharyar, the decision states, that he used to perform certain religious rites and ceremonies and used to feed Brahmins on behalf and for the spiritual benefit of the Beri Chetty caste. The decision also refers that the caste used to elect trustees of another temple at Tiruvottiyur. The suit temple has been described as a special temple of the caste and the plaintiff who was expelled from the caste questioned the validity of his expulsion stating, that it is not a valid expulsion because he was allowed to enter the inner precincts of the Kandasami temple (suit temple) and to conduct ceremonies there. The suit temple has been described as a special temple of the caste and the plaintiff who was expelled from the caste questioned the validity of his expulsion stating, that it is not a valid expulsion because he was allowed to enter the inner precincts of the Kandasami temple (suit temple) and to conduct ceremonies there. In other words, the plaintiff therein contended that as his expulsion was not considered to be a legal expulsion, he was allowed to enter the inner precincts of the special temple of the caste for conducting ceremonies. Muthusami Ayyar J., who decided the case, however, found that the Dharmasivacharyar Mada m is not precisely a temple as that of a temple situated in Tiruvottiyur or that of the suit temple. The observations made by the learned single Judge, Muthusami Ayyar, J., and the learned Judges, who heard the appeal arising therefrom, go to show, that the suit temple was considered to be a special temple of the caste, but not as a religious denomination established and maintained by the caste “Guru Dharmasivacharyar”. In fact, the decision states that one Visveswaraswami idol was worshipped in the Mad am and the plaintiff in that suit because of his expulsion forfeited the privileges and ceased to have any interest in the property and management of Dharmasivacharyar Madam and of the Visveswaraswami idol and be entitled to participate in the worship and services of the said Madam. According to the decision in Thambu Chetty, Subbaraya Chetty v. A.T. Arundale 1, the Head of the Madam had left the Madam along with the idol in 1876 and after that public worship had been discontinued The idol mentioned in both the decisions is not Lord Muruga which is the Presiding Deity of the suit temple, but one Visweswaraswami and hence it cannot be said that the decision in Krishnaswamy Chetty and others v. Veerasamy Chetty 2, establishes the claim of the plaintiffs that the suit temple is a denomination temple of the Beri Chetty community. 28. Even according to P.W.1, the third plaintiff, the deity of the suit temple was brought by one Velur Mari Chettiar along with his friend Kandappa Achari. While both of them were returning from Thiruporur on a Karthigai day after worshipping Lord Muruga there, they rested under a tree and went into slumber. 28. Even according to P.W.1, the third plaintiff, the deity of the suit temple was brought by one Velur Mari Chettiar along with his friend Kandappa Achari. While both of them were returning from Thiruporur on a Karthigai day after worshipping Lord Muruga there, they rested under a tree and went into slumber. It is stated that Lord Muruga appeared in their dream and told them that He would be found near the place where they were resting and that they could take Him and consecrate Him at Madras. Accordingly, both Mari Chettiar and Kandappa Achariar searched the place, found the idol of Lord Muruga and brought it to Madras. Thereafter, Mari Chettiar purchased a small piece of land and constructed a temple in brick and mortar and consecrated the idol. He formed a meeting of the Beri Chetty community, who are the disciples of Abhinava Dharmasivacharyar and told them that the temple should be used as a temple for the Beri Chetty community and the community as such should take charge of the temple and conduct daily poojas. 180 years later, the temple was reconstructed by granite stone. This is available in the stone inscription installed in the suit temple. For convenience sake, 1 extract the stone inscription as contained in Ex.P26: Tamil Even if the stone inscription is accepted as true, it only states that it was not established by the religious head of the Beri Chetty community, but was establised and maintained by one of the members of the Beri Chetty community and Ayiravargal, consisting of 18 sects, inclusive of Beri Chetty community, was doing pooja and decided to construct the temple in granite stone in the year ‘kaliyagadhi 1459’ = ‘salivahana 1780’=1858 A.D., when the stone inscription was laid. According to the stone inscripti on, Mari Chettiar and Kandapandaram brought the idol of Lord Muruga from the place more fully described in the stone description in the year 1673 A.D. = 1595 salivahana=4774 kaliyugadhi. While making the installation of the stone inscription, after a lapse of 185 years from the date of construction of the Temple by Kandapandaram what would have been the source of intormation for the merchants belonging to the 18 sects, who installed the stone inscription, to state that Velur Mari Chettiar and Kandapandaram had brought the idol of Lord Muruga in the year 1673 A.D., is a matter of conjunctive. Accepting the contents of the stone inscription as true, it can safely be said that the suit temple was constructed by one of the members of the Ayiravars consisting of 18 sects, inclusive of Beri Chetty community, and was not founded by a religious head. The stone inscription clearly states that the temple was being managed by persons belonging to Vaniga vaisyar and not by the Beri Chetty sect alone. As such it cannot be said that the suit temple had been established and maintained by the “Guru” of the Beri Chetty community as a religious denomination. 29. One another document under which the plaintiffs claim that the suit temple is a denomination temple, is Ex.P2 dated 12.1.1910, a scheme framed in C.S. No. 117 of 1907 on the file of this Court. That suit was filed by six persons for the management of the suit temple, its properties and for the conduct of election of Dharmakarthas from among the members of the Beri Chetty caste being the disciples of Sri Abinava Dharma Sivachariar reserving as far as possible full authority to the Headman to call meetin gs of the ‘Periagramam’ for the purpose and maintaining the rules for the conduct of temple affairs passed at the meeting on 25.11.1906, as well as for a declaration that the third defendant therein viz., N. Thangavelu Chetty had been elected as Dharmakartha of the suit temple and as such is entitled to participate in the management and control of the temple, its properties and affairs, and for other reliefs. In that context, a scheme was framed for the election of Dharmakarthas from among the Beri Chetty caste. The framing of the scheme itself shows that there is no ‘Guru’ for this religious denomination and the Court has to intervene to frame a scheme as to the election of trustees to regulate as to how the properties of the suit temple have to be administered. Framing of the scheme in the above said manner is opposed to the principles of religious denomination, because the Institution is to be governed by the percepts and tenets that have been preached by the founder of the Institution. Framing of the scheme in the above said manner is opposed to the principles of religious denomination, because the Institution is to be governed by the percepts and tenets that have been preached by the founder of the Institution. Clause 20 o f the scheme shows that the Institution is not a religious denomination and a right has been given to any worshipper of the temple to inspect the accounts of the temple on payment of two annas for every day of inspection. This means any person who is a worshipper of the temple, whether he is a member of the Beri Chetty caste or not, is entitled to inspect the accounts of the temple giving reasonable notice to the Dharmakarthas, for the time being, on payment of two annas for every day of inspection. This provision in the scheme disproves the claim of the plaintiffs that the suit temple is a religious denomination. 30. The plaintiffs next relied on the findings of the City Civil Court in O.S. No. 2364 of 1957 (Ex.P6 dated 5.11.1958). The said suit had been filed under the following circumstances: On 29.5.1952, five trustees belonging to the suit temple filed a petition under S.57-B of the Madras Hindu Religious and Charitable Endowments Act 19 of 1951 to declare that the trusteeship of the suit temple is hereditary and asked for further direction for the maintenance of status quo and the continuance of management by the then trustees pending disposal of the application. It may be noticed that the claim by the then trustees to declare them as hereditary trustees is contrary to the concept of a religious denomination, which is regulated by custom and usage as prescribed by the founder of the Institution. The Deputy Commissioner, Coimbatore, who heard the then trustees represented by a reputed lawyer of this Court viz., K.E. Rajagopalachari, came to the conclusion that the petitioners are hereditary trustees within the meaning of Madras Act 19 of 1951. Aggrieved by the aforesaid order dated 4.7.1952 passed by the Deputy Commissioner Mr. A. Uthandaraman, one of the devotees of the suit Temple by name Balakrishnan preferred an appeal before the Commissioner in A.S. No. 26 of 1952 on 15.9.1952. He questioned the order of the Deputy Commissioner on the ground that the order of the Commissioner is opposed to law, improper and against the interests of the Institution concerned. A. Uthandaraman, one of the devotees of the suit Temple by name Balakrishnan preferred an appeal before the Commissioner in A.S. No. 26 of 1952 on 15.9.1952. He questioned the order of the Deputy Commissioner on the ground that the order of the Commissioner is opposed to law, improper and against the interests of the Institution concerned. According to the appellant viz., Balakrishnan merely because trustees are being elected from a particular community, such trustees cannot be called hereditary trustees. It is one thing to say that the trustees will be always chosen from a particular community but it is quite different to cloth them with the hereditary rights of trusteeship. The appeal was heard by the same person viz., A. Uthandaraman who passed the order dated 4.7.1952 and he accepted the contentions of the appellant and set aside his own order dated 4.7.1952 passed by him as Deputy Commissioner and allowed the appeal by his order dated 17.7.1957. Till now this irregularity of the same person who passed the order under appeal hearing the appeal and passing order therein, is not noticed by anyone. However, I find this irregularity is nothing but technical, since all questions touching the dispute are being settled in this suit. The four persons viz., K. Subramaniam Chetty, S.N. Venugopal Chetty, P.E. Raghava Chetty and K. Venugopala Chetty, as trustees of the temple, filed O.S. No. 2364/57 to set aside the order dated 17.7.1957 passed by the Commissioner and to recognise the plaintiffs claim as hereditary trustees of the suit temple and to declare the suit temple and to declare the plaintiffs and other members of the Beri Chetty caste being the disciples of Sri Abinava Dharma Sivachariar as a religious denomination entitled to conduct the affairs of the temple through their chosen representatives as well as for injunction restraining the Commissioner, H.R.C.E., Madras, from enforcing the provisions of Madras Act 19 of 1953 and other reliefs. Plaintiffs 3 and 4 in O S. 2364/57 are defendants 3 and 4 in the present suit. In that suit, four witnesses were examined on behalf of the plaintiffs and two on behalf of the defendants. D.W.1 is the second defendant, a Brahmin, who was the then Managing Director of Muthialpet Benefit Fund and a devotee of the suit temple. Several documents have been marked on behalf of the contesting parties. In that suit, four witnesses were examined on behalf of the plaintiffs and two on behalf of the defendants. D.W.1 is the second defendant, a Brahmin, who was the then Managing Director of Muthialpet Benefit Fund and a devotee of the suit temple. Several documents have been marked on behalf of the contesting parties. Eventually, the learned III Assistant City Civil Judge by name Mr. M. Shama Das, after referring to the decision in Commissioner, H.R.E.V.L.T. Swamiar of Sri Shirur Mutt 1 , came to the conclusion that the plaintiffs in that suit are followers of the Dharmasivachariar Mutt and the suit temple is owned by the Beri Chetty community which constitutes a religious denomination. Having given such a finding, the learned Judge referred the matter to the decision of the High Court with reference to the other issues. I am of the opinion that the learned Judge ought not to have referred the other issues to the opinion of the High Court, since he has come to the conclusion that the suit temple is owned by a religious denomination by name Beri Chetty. Even though this decision was set aside in R.C. No. 10 of 1958 by the Division Bench by order dated 19.4.1961, and the matter has been referred back to the City Civil Court, in view of the undertaking given by the then Advocate General to the effect that the Commissioner will not interfere with the management of the temple, pending disposal of the suit, still the plaintiffs want to rely upon the finding of the trial Court. As it is relevant in deciding the issue of denomination as provided under S.42 of the Evidence Act. The judgments referred to in S.42 of the Evidence Act are judgments which have become final and not judgments which have been set aside by a superior forum. Without going into the merits on this aspect of the case, I find, the findings of the learned III Assistant City Civil Judge are contrary to the evidence let in the suit. P.W.3, Natesa Chettiar, a retired Lecturer in Physics in the Pachaiyappas College, belonging to the Beri Chetty caste, in his cross-examination has admitted that all Hindus can go and worship in the suit temple; there is no special ritual or pooja conducted peculiar to the temple showing the exclusive monopoly of Sivacharyas followers. P.W.3, Natesa Chettiar, a retired Lecturer in Physics in the Pachaiyappas College, belonging to the Beri Chetty caste, in his cross-examination has admitted that all Hindus can go and worship in the suit temple; there is no special ritual or pooja conducted peculiar to the temple showing the exclusive monopoly of Sivacharyas followers. P.W.2, the Manigar of the suit temple, while giving evidence in crossexamination, has admitted that there was no difference in worship in the suit temple and the other temples of similar kind such as Sri Ekambareswarar, Vani Subramania temple, etc. The then III Asst. City Civil Judge merely extracted several paragraphs in Commissioner, H.R.E. v. L.T. Swamiar of Sri Shirur Mutt 1, and gave a finding in support of the plaintiffs case herein. In the circumstances, I find that no importance could be given to the findings of the trial Court in O.S. No. 2354 of 1957. 31. The next point urged by the plaintiffs in support of their claim is the judgment in T.T. Kuppuswami Chetty and others v. Commissioner, H.R.C.E., Madras 2. For proper appreciation of the decision, the circumstances that led to the filing of the writ petition have to be stated. It may be noticed that the reference made by the City Civil Court by order dated 5.11.1958 has been disposed of on 19.4.1961 in R.C. No. 10 of 1958 by the High Court, which remitted back the matter to the trial Court. Before the trial Court, the parties to the suit without prosecuting the same further, entered into a compromise on 24.9.1963. Ex.P7 is the judgment, Ex.P23 is the decreetal order drawn in pursuance of the memo of compromise Ex. P12. The terms of compromise in so far as it is necessary for the case are extracted as follows: “1 It is hereby declared that the plaintiffs and other members of the Beri Chetty caste being the disciples of Sri Abinava Dharma Sivachariya Math as religious denomination are exclusively to own and also conduct the affairs of the temple through their chosen representatives subject to the terms set out below. (a) That H.R. & C.E. Department shall have the right of appointing the trustees from out of the members of the said community referred to in C1.1. (a) That H.R. & C.E. Department shall have the right of appointing the trustees from out of the members of the said community referred to in C1.1. Taking the clue from the terms of compromise, the Commissioner, H.R. & C.E., Department called for applications from persons belonging to Beri Chetty caste, for appoint of trustees to the suit temple and appointed five trustees for a period of five years by his order dated 10.8.1964, marked as Ex.D3(a). After a lapse of about five years, four persons filed the above writ petition, seeking rule nisi prohibiting the Commissioner, H.R. & C.E., Madras, from taking any steps to nominate trustees for the suit temple, on the ground that the suit temple belongs to a religious denomination. This writ petition was not filed in a representative capacity. However, the learned Judge after hearing the Department and interpreting the order of the Division Bench dated 19.4.1961 in R.C. No. 10 of 1958, came to the conclusion that the Division Bench unequivocally expressed that the suit temple is a denominational temple and on that ground ignored the compromise dated 24.9.1963 entered into between the parties in O.S. No. 2364 of 1957 and allowed the writ petition. On appeal by the Department in W.A. No. 9 of 1973, the I Bench consisting of Chief Justice R. Veerasami and Justice Suryamurthy, set aside the order passed by Ramprasada Rao, J. on the ground that the writ petition has not been filed in a representative capacity and that so long as the compromise decree is in force, the compromise decree is binding on the parties thereto and as such it was open to the trustees to institute the suit to have the compromise decree set aside on grounds open to them if at all. The I Bench gave three months time to file the suit to set aside the compromise decree. It is under those circumstances, as stated in the outset, the present suit has been filed. Learned counsel for plaintiffs wants to rely upon the findings given by Ramaprasada Rao, J. in W.P. No. 2467 of 1969 in terms of S.42 of the Evidence Act. It is under those circumstances, as stated in the outset, the present suit has been filed. Learned counsel for plaintiffs wants to rely upon the findings given by Ramaprasada Rao, J. in W.P. No. 2467 of 1969 in terms of S.42 of the Evidence Act. What I have stated with reference to the findings of the learned III Assistant City Civil Judge in his judgment Ex.P6 dated 5.11.1958, with reference to S.42 of the Evidence Act, is equally applicable to the judgment of Ramprasada Rao, J. in Writ Petition No. 2467 of 1969, since it was set aside by the I Bench on 28.1.1976 in W.A. No. 9 of 1973. The I Bench did not agree with the reasoning of Ramaprasada Rao, J., and to quote the I Bench: “Ramaprasada Rao J. proceeded on the basis that the finding of the trial Court that the temple is a denominational one, was not challenged by the Department, and that the Commissioner had agreed that such was the finding. But, as we mentioned earlier, the Commissioner did make it clear before the Division Bench recording it, that, by the arrangement that had been agreed to for the purpose of the disposal of the referred case, he should not be deemed to have accepted the correctness of the decision of the trial Court as to the character of the temple as a denominational one. Whatever that be, in the compromise decree to which the Commissioner was a party the correctness of the finding was accepted, and it was on that basis the other terms of the compromise were agreed to or embodied in the compromise decree, one of which, as we noted, vested power in the Commissioner to appoint trustees for the temple, his powers being restricted to calling for applications from members of Beri Chetty community and selecting suitable persons as trustees out of them. It may not therefore be accurate to say that the character of the temple was accepted by the Commissioner unconditionally and without strings attached to it as appeared from the compromise decree” Therefore, no importance could be given to the judgment of Ramaprasada Rao, J. in W.P. No. 2467 of 1969 as well. 32. The evidence of P.W.1, the third plaintiff herein, is based mostly on hear-say evidence. 32. The evidence of P.W.1, the third plaintiff herein, is based mostly on hear-say evidence. The fact that the community of Beri Chetty has not elected to set aside the order of the Commissioner passed under Ex.D3(a) dated 10.8.1964, appointing five trustees for a period of five years shows that community of Beri Chetty is not a well knit organisation interested in the welfare of the temple. They have taken about six years to find out that a compromise decree has been passed by the City Civil Court in O.S. No. 2354 of 1967 on 24.9.1963, and only thereafter filed W.P. No. 2467 of 1969. The religious denomination will not take such a long time to enforce its rights which have been curtailed by the Commissioner, H.R. & C.E. Dept., about five years before. Further, from the inception, the stand taken by the Dharma-karthas of the suit temple is not consistent with their claim that the suit temple belongs to a religious denomination. At the beginning, they asked for a scheme for administering the Dharmasivacharaiar Madam in O.S. No. 376 of 1883 and a scheme has been framed as per Ex.P24 dated 3.2.1893. There is nothing to connect the suit temple with the Madam. Thereafter, they approached the Department, claiming hereditary trusteeship and when it was negatived, ultimately by the Commissioner, they filed O.S. No. 2264 of 1957 on the file of the City Civil Court, for inconsistent relief; the first relief for hereditary trusteeship of the suit temple and the second relief to declare the plaintiffs and other members of Beri Chetty caste as religious denomination on the ground that they are disciples of Sri Abinava Dharma Sivachariar and as such they exclusively own and conduct the affairs of the suit temple through their chosen representatives. The evidence of P.W.1 herein is nothing but a narration of events stated by me, beginning from the decision in Thambu Chetty, Subbaraya Chetty v. A.T. Arundale 1 upto the filing of the present suit. P.W.1 himself has admitted that the community members feel that the temple is the property of the community founded by one of their own members. It is not his case that it was founded by the religious leader of the community for the spiritual benefit of the community so as to claim the same as a religious denomination. P.W.1 himself has admitted that the community members feel that the temple is the property of the community founded by one of their own members. It is not his case that it was founded by the religious leader of the community for the spiritual benefit of the community so as to claim the same as a religious denomination. He also admitted that Dharmasivachariar was worshipping Lord Visveswaraswami, i.e., Kasi Viswanathar and that he had nothing to do with the suit temp le which has “Lord Muruga” as its Presiding deity. Lot of other evidence that has been let in is based on hear-say as well as on the Sthalapuranams which according to me cannot be treated as legal evidence. Since the plaintiffs themselves admitted that the idol was brought by one of their own castemen and a Achari, it cannot be said that the suit temple was established and maintained by the religious leader for the spiritual benefit of the Beri Chetty community. The Presiding deity of the suit temple has been highly praised by Sri Kamalinga Swamigal of Vadalur in various stanzas of his poem ‘Deivamanimalai’ and the temple is being considered as one of the important public temples in South India. 33. A careful reading of the oral as well as the documentary evidence let in on behalf of the plaintiffs go to show that this temple has been maintained by the Beri Chetty caste from time immemorial, but has not been established as a temple for the spiritual benefit of the Beri Chetty caste by any founder of the community. As stated earlier, there is nothing on record to show that Abinava Dharamsivachariar has established the community of Beri Chetty and the suit temple for the benefit of the said Beri Chetty community. To sum up, the plaintiffs have not proved. (i) their community has been formed by a Guru’ (ii) the said ‘Guru’ prescribed certain preachings and tenets peculiar to Beri Chetty caste. (iii) such preachings and tenets are being followed from time immemorial in the suit temple till today (iv) special ceremonies or poojas are being conducted exclusively for the Beri Chetty community, without admitting members of other communities. 34. (iii) such preachings and tenets are being followed from time immemorial in the suit temple till today (iv) special ceremonies or poojas are being conducted exclusively for the Beri Chetty community, without admitting members of other communities. 34. However, there is clinching evidence to show that Beri Chetty community have engaged Brahmin priests for conducting daily poojas in the suit temple and the rituals that are being followed in the suit temple are no way different from the rituals followed by other public temples. There is no evidence as to the existence of a Guru after Dharmasivachariar who went away with the idol then he worshipped in the year 1876. As such I find, that the plaintiffs have failed to prove that they are a religious denom ination, and thereon the suit temple is not entitled to be termed as a ‘denominational temple’ intended for the spiritual benefit of their community. 35. Now, the question whether the terms of compromise dated 24.9.1963, marked as Ex.P23, is liable to be set aside, has to be considered. According to the plaintiffs, defendants 3 and 4 herein are plaintiffs 3 and 4 in O.S. No. 2364 of 1957 and they have not signed the compromise decree and only their Advocate has signed the compromise decree and since the counsel who appeared for the plaintiffs had not obtained the consent of the entire community, it will not be binding upon the community. The further case of the plaintiffs is that defendants 3 and 4 with a view to continue as trustees of the suit temple bartered away the rights of the community by their unauthorised act in having submitted to the compromise decree and the defendants 3 and 4 have no authority to represent their commuaity on 24.9.1963. It is no doubt true that on the date of the compromise, the term of office of the trusteeship of the first plaintiff R. Subramaniam chettiar expired; the second plaintiff S.N. Venugopala Chettiar was no more; and there were only the third and fourth plaintiffs who are defendants 3 and 4 herein and that they have not subscribed their signatures to the memorandum of compromise. A perusal of Ex.D10 file shows that the counsel for the plaintiff Mr. A perusal of Ex.D10 file shows that the counsel for the plaintiff Mr. K.E. Rajagoplachari has sent a draft memorandum of compromise to the Commissioner, H.R. & C.E., Madras, along with a covering letter dated 24.7.1963, which is available at page 390 of Ex.D10 file and it reads as follows: “I have the honour to submit a draft proposal of compromise in the above matter (O.S. No 2364 of 1957) which I believe will have the approval of your honour. If your honour wants to make any further suggestions the same may be embodied after discussing the matter.” On receipt of the memo of compromise, the Department wanted to fix the costs for their counsel in this suit. The learned Assistant Government Pleader Mr. T. Rangasami Iyengar claimed Rs. 350 since the suit was going to be compromised. Then the Department asked Mr. Rajagopalachari whether the plaintiffs are willing to pay the sum of Rs. 350 being the costs of the Department, for which the learned counsel for plaintiffs Mr. Rajagopalachari, in his letter dated 19.9.1953, informed the Department that the plaintiffs are willing to pay Rs. 350 being the cost of the Department in the above suit and also enclosed a cheque for Rs. 350 bearing No O.A/7/719134 dated 19.9.1963 drawn on State Bank for India. Then only the Department accepted the terms of the compromise and the compromise was recorded on 24.9.1963 and a decree has been passed pursuant thereto. From the aforesaid facts, it cannot be said that the counsel for plaintiffs has not acted without any authority. Further, there is every reason to believe that, an eminent counsel like Mr. Rajagopalachari, who is an authority on the subject, thought that it would not be easy for the community to establish that it is a religious denomination, and as such was satisfied with the retention of trusteeship in the community itself, and submitted a proposal to the H.R. &C.E. Dept., for appointing the trustees from and out of Beri Chetty community alone. One another argument that was advanced by the learned counsel for the plaintiffs is that defendants 3 and 4 who are plaintiffs 3 and 4 in O.S. No. 2364 of 1957 had no authority to authorise their counsel to enter into a compromise since both of them were acting only as interim Receivers and not as Trustees on 24.9.1963. One another argument that was advanced by the learned counsel for the plaintiffs is that defendants 3 and 4 who are plaintiffs 3 and 4 in O.S. No. 2364 of 1957 had no authority to authorise their counsel to enter into a compromise since both of them were acting only as interim Receivers and not as Trustees on 24.9.1963. The basis for this argument is that during the pendency of the reference before the High Court, plaintiffs 3 and 4 in O.S. No. 2364 of 1957 defendants 3 and 4 herein, filed I.A. No. 1325 of 1959 on the file of the learned III Assistant City Civil Judge for a direction to them to continue to manage the affairs of the suit temple, pending disposal of the suit, since the term of the third plaintiff as a Trustees was expected to expire on 4.12.1959 and the jewels of the temple are kept in the double locker system with each trustee holding one set of keys and the signatures of the two trustees are necessary for operating the bank account. The learned Judge passed an interim order on 5.12.1959 appointing plaintiffs 3 and 4 as interim Receiver to manage properties and ordered notice to the Department returnable by 14.11.1959. Eventually on 18.2.1960, the following final order was passed: “1. That both the petitioners shall function as Receivers in terms (P-2 in his capacity as trustee Receiver) of the order dated 5.12.1959 till the disposal of the reference pending before High Court; 2. That the petitioners shall file the report of administration into Court once in two months; 3. And that there shall be no order as to costs.” The final order had its effect till 19.4.1961, the day on which the reference before the High Court was disposed of. On 19.4.1961, plaintiffs 3 and 4 ceased to be Receivers and as such they have no authority to authorise their counsel to enter into a compromise on 24.9.1963. Under Ex.P10 dated 18.2.1960, the III Assistant City Civil Judge allowed plaintiffs 3 and 4 in the suit to continue as Trustee Receivers in terms of the order dated 5.12.1959, as per Ex.P8, till the disposal of the reference by the High Court. On 19.4 1961, the order as pissed by the learned III Asst. Under Ex.P10 dated 18.2.1960, the III Assistant City Civil Judge allowed plaintiffs 3 and 4 in the suit to continue as Trustee Receivers in terms of the order dated 5.12.1959, as per Ex.P8, till the disposal of the reference by the High Court. On 19.4 1961, the order as pissed by the learned III Asst. City Civil Judge on 18.2.1950, came to an end and there was nobody to represent the plaintiffs and as such Mr. K.E. Rajagopalachari had no authority to enter into the compromise. Though the argument seems to have some force, I see no merit in the same. The Beri Chetty community who have elected the plaintiffs in O.S. No. 2364 of 1957 have not taken any interest in the prosecution of the suit and they had not met periodically to conduct themselves as a ‘religious denomination’ and had not taken any interest in the management of the suit temple. They have allowed the Department to appoint five trustees for a period of five years in pursuance of the compromise decree dated 24.9.1963. In the process of appointing five trustees, there was a representation dated 5.3.1964 from the community, not to include defendants 3 and 4 herein as trustees since they had been acting as trustees for the past seventeen years. This is available in Ex.D3 file. After hearing the representations of the community, the Commissioner appointed five trustees by his order dated 10.8.1964. It may be noticed that one of the applicants for trusteeship is Mr. O. Radhakrishnan, a leading Advocate of this Court. The community allowed aforesaid five trustees to act as trustees in pursuance of the order passed by the Commissioner, H.R. & C.E. Department. It is only in the year 1969, two members of the Beri Chetty community viz., T.T. Kuppusamy Chettiar and T.T. Muthukumaraswamy Chettiar filed W.P. No. 2467 of 1969, claiming the suit temple as a denomination temple as per Ex.P14. Ex.P15 is the counter filed by the Department and Ex.P16 is the order passed in the writ petition. It was set aside in W.A. 9 of 1983, as per Ex.P158 dated 18.12.1972. From the aforesaid facts, it can safely be said without any fear of contradiction that the community has not only slept over its alleged rights but also accepted the terms of the compromise andcame to the writ jurisdiction belatedly on improper advice. It was set aside in W.A. 9 of 1983, as per Ex.P158 dated 18.12.1972. From the aforesaid facts, it can safely be said without any fear of contradiction that the community has not only slept over its alleged rights but also accepted the terms of the compromise andcame to the writ jurisdiction belatedly on improper advice. Whatever be the nature of the compromise decree, in view of my rinding on the additional issue that the suit temple is not a denominational temple, no purpose will be served by answering this issue either in favour of the plaintiffs or in favour of the Department. However, I see no reason to set aside the compromise decree in view of the fact that the community has allowed the compromise decree to be acted upon for nearly five years. Till the 2nd defendant appoints new trustees the present trustees will continue and act as trustees. 36. In this result, I see no merit in the suit and it is dismissed with costs.