K.Gnanaprakasam, J.: The Commissioner, H.R. & C.E., Administration Department, Madras, is the appellant in L.P.A. No.266 of 1995, arising out of A.S. No.43 of 1982. 2. The respondents 5 to 7 in L.P.A. No.266 of 1995 are the appellants in L.P.A. No.103 of 1994, which is also arising out of A.S. No.43 of 1982. 3. The parties, for the purposes of convenience would be referred to as plaintiff and defendants as they were arrayed in O.S. No.194 of 1979 on the file of the Sub Court, Pattukkottai (O.S. No.198 of 1978, Sub Court, Thanjavur). 4. Brief facts are as follows: Saint, by name Sri Venkatasubbiah Swamigal lived in Pattukkottai had attained Mukthi in the year 1873. As he was helping the poor, an institution by name ‘Sri Venkatasubbiah Swamigal’ was established in his name and the mortal remains of the Swamigal were interned in a place and Samadhi was constructed by one Manicka Mudaliar, grandfather of the plaintiff. Over the Samadhi a Sivalingam was placed. The plaintiff’s grandfather Manicka Mudaliar put up a construction and also commenced performing daily poojas and lighting to the Samadhi. In 1886, one Muthukumarappan Chettiar took on lease the adjacent site and made over the same to the plaintiff’s grandfather, for putting up additional construction and a Nandavanam was also reared nearby. 5. The plaintiff’s father Gurumaharaja Mudaliar was maintaining the Samadhi. As the plaintiff’s father became old, he allowed some others to associate themselves with him. Entire administration of the institution was done by his son-in-law, Dharmalinga Mudaliar/ second defendant. After the death of Guru Maharaja, the plaintiff took over the management from Dharmalinga Mudaliar and he has been managing the entire affairs of the institution, as hereditary trustee of the Samadhi. 6. The suit institution is not a religious institution as defined under Sec.6(18) of Tamil Nadu Hindu Religious and Charitable Endowments Act (Act XXII of 1959). It is neither a “temple” nor Specific endowment as defined in the Act. It is only a “Samadhi” of a deceased Swamigal. During Gurupooja days, general public joined themselves as “Annadhana Committee” and carried out poor feeding in the Municipal School premises and the suit institution is nothing to do with Annadhana Committee and vice versa. 7. It is neither a “temple” nor Specific endowment as defined in the Act. It is only a “Samadhi” of a deceased Swamigal. During Gurupooja days, general public joined themselves as “Annadhana Committee” and carried out poor feeding in the Municipal School premises and the suit institution is nothing to do with Annadhana Committee and vice versa. 7. However, the defendants 2 to 4 claimed to be the members of the Committee, attempted to interfere with the plaintiff’s management of the suit institution, which made the plaintiff to file an application in O.A. No.29 of 1972 before the Deputy Commissioner, H.R. & C.E. Department Thanjavur under Sec.63(a) of the Tamil Nadu Act XXII of 1959, to declare that the suit institution is only a “Samadhi” and not a “religious institution” and the said petition was allowed in favour of the plaintiff, holding that the suit institution was only a Samadhi and not a religious institution as defined under the Act. 8. The defendants 2 to 4, not content with the said order, preferred an appeal before the Commissioner, H.R. & C.E. Department, who had remanded the matter for fresh enquiry by an order dated 1.10.1975. On remand, the Deputy Commissioner, H.R. & C.E. Department by order dated 4.7.1977, held that the suit institution is a religious institution. As against the said order, the plaintiff preferred an appeal to the Commissioner, H.R. & C.E. Department, who by an order dated 18.3.1978, dismissed the appeal. Aggrieved by the said order, the plaintiff/ G.Subramania Mudaliar filed a statutory suit in O.S. No.194 of 1979 before the Subordinate Judge, Pattukkottai to set aside the order of Commissioner, H.R. & C.E. Administration Department, Madras, dated 18.3.1978 and for a declaration that the suit institution “Sri Venkata Subbiah Swamigal Institution” is only a “Samadhi” and not a religious institution as defined under the Tamil Nadu Act XXII of 1959 and for other reliefs. 9. The Commissioner, H.R. & C.E. Administration Department, the first defendant, in his written statement inter alia denied the claim of the plaintiff. It is stated that there are several documents which would show that different persons belonging to different communities have been independently functioning as trustees of the suit institution. 9. The Commissioner, H.R. & C.E. Administration Department, the first defendant, in his written statement inter alia denied the claim of the plaintiff. It is stated that there are several documents which would show that different persons belonging to different communities have been independently functioning as trustees of the suit institution. In 1909, one Subramaniam Chettiar, S/o.Arunachalam Chettiar, Chockalinga Chettiar, S/o.Chidambaram Chettiar, Govindaswamy Chettiar, S/o.Ramaswamy Chettiar and one Ramasiva Mudaliar, S/o.Marimuthu Mudaliar were functioning as trustees and they have acquired properties for the institution and donated to plaintiff’s institution as such, the plaintiff is not a hereditary trustee of the suit institution. It is further stated that in or about 1938, H.R. & C.E. Board, Madras issued a notice to late V.Nadimuthu Pillai, the then President, District Board, West Thanjavur, calling upon him to show cause, why trustee should not be appointed under Madras Act II of 1927. In the counter filed by Guru Maharaja Mudaliar, he has not claimed the office of trustee as his hereditary property. But, at the same time, he has admitted that several persons of different communities have held the office of the Trustees for the suit institution. 10. In 1966-67 five persons belonging to different communities were appointed as Trustees by the Assistant Commissioner, Kumbakonam. The proceedings in M.P. No.4 of 1969 on the file of the Deputy Commissioner, H.R. & C.E., Thanjavur would show that the plaintiff is not the hereditary trustee. In fact, the Board had undertaken suo motu enquiry under Sec.84 of the Act II of 1927 to decide whether the suit institution is a ‘temple’ as defined in the Act. The plaintiff’s father received the notice of enquiry on 17.12.1938. But, he did not file any counter. The Board, after due enquiry, declared that the said institution is a ‘temple’ as defined under the Act, by an order dated 2.5.1939 and the said order was not challenged by the plaintiff and it has become final and binding upon the plaintiff. It is further stated that the performance of ‘Nithya Neivedyam’ and distribution of ‘Prasadams’ to the general public and the presence of "Hundial" would show that the suit institution is a ‘religious institution’. 11. The defendants 2 to 8, in their written statement contended that the suit institution is a religious institution and a place of ‘public worship’ and offering worship is a matter of right. 11. The defendants 2 to 8, in their written statement contended that the suit institution is a religious institution and a place of ‘public worship’ and offering worship is a matter of right. Even though there is Samadhi’ in the institution, there are idols of Lord Murugan and Lord Vinayagar and there are Vel, Nandhi, Lingam, Palipeedam and Gopuram, which would indicate that it is a place of worship. Late Swamigal had no disciple, but had devoted persons in Pattukkottai Town. After the death of Swamigal the institution came into existence and was managed by the respectable persons of the place. In fact, the lands referred originally belonged to Late Sri Sivaji Gadaka Rau Saheb and he had given the same to Muthuveerappa Chettiar to construct a temple on 5.2.1886 and only thereafter, the temple was constructed from the public contribution. 12. The trial Court had observed that, "Mortal soul of Sri Venkatasubbiah became immortal by attaining the feet of the Lord. It is broadly admitted that the Mortal remains of the Swamigal were interned in the suit place and a "Samadhi" has been constructed over the same. On the Samadhi, there is a Lingam, indicating that the divine soul of the Swamigal is worthy of Veneration in accordance with the Hindu tenets and sastras. When the Samadhi was constructed there was no superstructure. In the superstructure, the idols of Lord Muruga and Lord Vinayagar and also Palipeedam, Vel and nandhi were installed. It is also broadly admitted that daily aradhanas are performed." It is further observed, "Ex.B-11 reads as: In Ex.A-6, the institution has been mentioned as Sri Venkidusubbaya Swamigal Kovil. In Ex.A-7 to A-10 also Gurumaharaja Mudaliar has been shown as the Managing Trustee of Sri Venkidu Subbaiya Swami Kovil (temple).“ 13. By placing reliance upon those documents and statements, the trial Court came to the conclusion that the suit institution is a ‘temple’ and not a Samadhi and also further held that it is a public religious institution and not a private one and dismissed the suit. Aggrieved by the same, the plaintiff preferred on appeal to this Court in A.S. No.43 of 1982. 14. The core question that arose for the consideration of the learned single Judge was as to whether the suit institution is a ‘Samadhi’ or it is a ‘religious institution’ as defined under Tamil Nadu Act XXII of 1959? 15. Aggrieved by the same, the plaintiff preferred on appeal to this Court in A.S. No.43 of 1982. 14. The core question that arose for the consideration of the learned single Judge was as to whether the suit institution is a ‘Samadhi’ or it is a ‘religious institution’ as defined under Tamil Nadu Act XXII of 1959? 15. Learned single Judge, after considering the respective cases of the parties and also certain decisions relating to the subject matter, agreed with the proposition that Hindu Law did not recognise worship at a tomb as a religious purpose and that, therefore, any dedication of property for that purpose was not valid. It is further held that people, out of veneration have donated certain properties and installed the idols of Lord Vinayagar and Lord Muruga on the religious institution. Gurumaharaja Mudaliar sent a petition under Ex.A-18, reiterating the stand that it is only a Mutt and not a temple. Even in Ex.A22 rent deed executed by Ponnusami Servai in favour of Gurumaharaj Mudaliar, it is written on the top of Ex.A-22 as”Shri Venkata Subbiah Swamigal Devasthanam“. By writing it as”devasthanam“, a Samadhi would not become Devasthanam, if it is really a Samadhi....... It is not in dispute that the mortals of Swamigal were interned in the place, where the present institution is built up and it is also not in dispute that the idols of Lord Vinayagar and Lord Muruga were installed by devotees of Swamigal outside the Samadhi and such installation of idols would not convert the samadhi into a temple. The suit institution was not originally built as a religious one, nor was it built for any installation of idols. It is only a ‘Samadhi’ at the inception. Therefore, under the Hindu religious system, a samadhi could not be coverted as a temple by any amount of worship by the public or by installation of Lord Vinayagar and Lord Muruga. The learned single Judge came to the conclusion that the suit institution is only a ‘Samadhi’, and not a temple and allowed the appeal. 16. Aggrieved by the same, the Commissioner, H.R. & C.E., Department, Madras preferred the appeal in L.P.A. No.266 of 1995 and the defendants 5 to 7 have preferred L.P.A. No.103 of 1994. 17. The learned single Judge came to the conclusion that the suit institution is only a ‘Samadhi’, and not a temple and allowed the appeal. 16. Aggrieved by the same, the Commissioner, H.R. & C.E., Department, Madras preferred the appeal in L.P.A. No.266 of 1995 and the defendants 5 to 7 have preferred L.P.A. No.103 of 1994. 17. It is the contention of the appellant viz., H.R. & C.E., Board that the suit institution is a religious institution, which would fall within the definition of Sec.6(18) of the Tamil Nadu Hindu Religious and Charitable Endowments Act (XXII of 1959) and as it is a temple, the appellant has got every right to appoint a trustee of its own choice. 18. The appellants in L.P.A. No.103 of 1994 are the defendants 5 to 7 and their contention is that they are entitled to be in management of the suit institution. 19. Thiru S.V. Jayaraman, learned Senior Advocate for the appellant in L.P.A. No.103 of 1994 has contended that the suit institution is a”Samadhi“in the initial stage, over a period of time, idols of Lord Murugan and Lord Vinayagar were installed outside the Samadhi. There are Vel, Nandhi, Lingam, Palipeedam and Gopuram, and therefore, Samadhi has been converted and considered as a temple for all purposes and therefore, it is only a temple and the H.R. & C.E., Board has every right to appoint a trustee of its choice. 20. To sustain his submissions, Thiru S.V. Jayaraman, learned Senior Advocate for the appellants relied upon the case of C.Ratnavelu Mudaliar v. The Commissioner for H.R. & C.E., (1953)2 M.L.J. 574 . The Division Bench in the said case has followed the decision of Ramaswami v. The Board of Commissioners, Hindu Religious Endowments, Madras, (1950)2 M.L.J. 511 : I.L.R. 1950 Mad. 799, wherein, it was observed at page 838 that, ”.......what were originally memorials for he roes or martyrs had subsequently developed into temples and that they had recognised as temples and at the least that is the position here. Even if the institution in question had its origin in a tomb, it is undeniable that for nearly a century it has come to be recognised as a temple. Even if the institution in question had its origin in a tomb, it is undeniable that for nearly a century it has come to be recognised as a temple. The fact that Guru Pooja is being performed and that it is not in consonance with orthodox notions of religious practice is again not a ground for holding that the institution is not a temple if it falls within the definition of a temple under the Act." 21. In C.Ratnavelu Mudaliar v. The Commissioner for H.R. & C.E., (1953)2 M.L.J. 574 , referred to above, the Division Bench of the Court had to consider whether an institution known as Apparswami Pagoda situate in Mylapore, is a temple. It is reputed to be the samadhi or tomb of one Apparswami. The Court observed that, "The building has got all the normal features of a temple in that it has got a Prakaram, Dwajasthambam, Balipeetam and Nandike-swara, and there are shrines for Bhairavar, Kasi Visalakshi, Chandikeswarar and other deities. There is sixteen pillared Mantapam and there are Gopurams all over the shrines. It also appears from the evidence now adduced that festivals are being regularly performed, the deity is taken in procession and archanas are performed by the worshippers. On these materials the only conclusion possible is that the institution has for a long period came to be regarded as a place of religious worship, which the public are entitled to use as a matter of right, and this being so the institution will be a temple, as defined in Sec.9(12) of the Madras Hindu Religious Endowments Act". The Bench held that on account of the fact that this institution for over a century at least had been regarded as a place of religious worship by the public entitled thereof as a matter of right, though the institution has its reputed origin in a samadhi and continued to retain traces of its origin and gurupooja was performed in the precincts, the institution would be a temple. 22.Per contra, Thiru Parthasarathy, learned Senior Advocate for the respondent submitted that the suit institution was only a Samadhi and it was never considered as a temple and it cannot be a religious institution as defined under Sec.6(18) of the Act. 22.Per contra, Thiru Parthasarathy, learned Senior Advocate for the respondent submitted that the suit institution was only a Samadhi and it was never considered as a temple and it cannot be a religious institution as defined under Sec.6(18) of the Act. The respondent also pointed out that a question was put to him in the cross-examination as to how he treats Venkatasubbiah Swamigal, as a man or as a God. His answer was thereby meaning that he was considered as a Saint. The next question was (Whether anyone worship him as a God?) The answer was thereby meaning that it depends upon their thinking or approach. The respondent further pointed out the evidence of D.W.2, Srinivasan Pillai, who has stated that, The portrait of Venkatasubbiah Swamigal was taken in procession through the streets. There lived a Saint by name Venkatasubbiah Swamigal in Pattukkottai and he died there and his mortals were interned in the suit property. It was submitted by the respondent that the suit institution was only a Samadhi and not a temple. 23. Learned counsel for the respondent relied upon a large number of decisions of the High Courts and the Supreme Court. Firstly, he relied upon the case of A.Draivisundaram v. Subramania Pillai, (1945)1 M.L.J. 328 : A.I.R. 1945 Mad. 217, where under the will, the testator had made specific provision for the construction of Samadhi after his demise. The provision in the Will was that the testator should be buried and that the separate matam was intended merely to be adjunct of the tomb. The Court held that the direction that money should be spent on the building of a tomb and its maintenance would certainly not constitute a charitable endowment. The Court held that it is only a Samadhi and not a temple. 24. That view was accepted by the Supreme Court in the case of Saraswathi Ammal v. Rajagopal Ammal, (1953)2 M.L.J. 803: A.I.R. 1953 S.C. 491: 1953 S.C.J. 714, wherein it was held, "Where, notwithstanding that the major portion of the income may have to be spent for Gurupooja and annadhanam in connection with the annual srardh, it is clear from the settlement deed that the dominant purpose of the dedication of property was the Samadhi Kainkariyam, that is to say the worship of and at the samadhi (tomb), the settlement deed is invalid. The reason is that perpetual dedication of property for worship at a tomb is not valid amongst Hindus." 25. A significant decision relied upon by the respondent is the case of Sri Ramanasramam v. The Commissioner for Hindu Religious and Charitable Endowments, Madras, I.L.R. 1960 Mad. 922. In that case it was held that Sri Mathrubootheswaraswami Shrine, a component part of Sri Ramanasramam, registered under the Societies Registration Act (Act XXI of 1860), is not a temple within the meaning of the definition in Sec.6(17) of the Madras Hindu Religious Charitable Endowments Act (XLX of 1951) but a public religious trust of a cosmopolitan character. In the course of the that judgment, it was observed, "Dedication of property for worship at a tomb is not sanctioned by Shastraic practices and is not valid among Hindus. A number of decisions of this Court were referred to with approval, viz. Kunhamutty v. Ahmad Musaliar, 68 M.L.J. 107: A.I.R. 1935 Mad. 29: I.L.R. 58 Mad. 204,Draiviasundaram v. Subramania, (1945)1 M.L.J. 328 : A.I.R. 1945 Mad. 217: I.L.R. 1945 Mad. 854 and Velusami v. Dandapani, (1946)1 M.L.J. 354 : A.I.R. 1946 Mad. 485: I.L.R. 1947 Mad. 47, for the position that the building of a samadhi or tomb over the remains of a person and the making of the provision for the performance of gurupooja and other ceremonies in connection with the same, cannot be recognised as charitable or religious purposes according to Hindu Law." In Velusami v. Dandapani, (1946)1 M.L.J. 354 : A.I.R. 1946 Mad. 485: I.L.R. 1947 Mad. 47, it was held that when a temple is only an adjunct to the tomb, a dedication of property for daily worship, gurupooja and annual annadhanam, even though there is provision also for worship three times a day with offerings of Neivedyam, etc., and a Sivalingam was kept worshipped there, will be wholly unlawful and the gift invalid and it would not make it a temple and the lingam would be regarded as an adjunct to the tomb. It is not necessary to multiply other instances to show that such a samadhi cannot be evolved into a temple notwithstanding the rituals and appanages betokening the character of a temple. The graves of religious-minded Hindus of the Saivite class are found to be mounted with a Sivalinga. It is not necessary to multiply other instances to show that such a samadhi cannot be evolved into a temple notwithstanding the rituals and appanages betokening the character of a temple. The graves of religious-minded Hindus of the Saivite class are found to be mounted with a Sivalinga. The indication is that a Jiva whose physical body lies buried has attained its mukthi or union with the God of the universe which is represented in the word or form and name and matter as Sivalinga. The installations of a Sivalinga on the graves of religious-minded persons are not by themselves intended as dedications for worship of the universal God Siva as He is described. They are not constructions of temples to God but are resting places of souls which by its own goodness, the mercy of God and the pious good wishes of relatives and friends interested in its attainment of Heaven reach sayujyam. It means no more than this Here lies the remains of one whose life has united with the Lord." In the said judgment, the Court also referred to the case of C.Ratnavelu Mudaliar v. The Commissioner for H.R. & C.E., (1953)2 M.L.J. 574 , wherein it was established that, “The building has got all the normal features of a temple, that it has got Prakaram, Dhwajastambam, Bali Peetam and Nandikeswara, and there are shrines for Bhairaver, Kasi Visalakshi, Chandikeswarar, and other deities. There is a 16 pillored Man-tapam, and there are Gopurams all over the shrine. That festivals are being regularly performed, the deity is taken in procession, and archanas are performed by the worshippers, that on account of the fact that this institution for over a century at least had been regarded as a place of religious worhsip by the public entitled thereof as a matter of right, though the institution had its reputed origin in a samadhi and continued to retain traces of its origin and gurupooja was performed in the precincts, the institution would be a temple.” Thus, the decision in (1953)2 M.L.J. 574 , came to be distinguished and the learned advocate for the respondent rests his argument in the abovesaid background of the case and we are also in compete agreement with the view taken by the Division Bench of this Court, in Sri Ramachandran v. The Commissioner for Hindu Religious and Charitable Endowments, Madras, I.L.R. 1960 Mad. 922. 26. 922. 26. In the case, before us it is not in dispute that Sri Venkatasubbiah Swamigal is a saint whose body was buried and that overwhich a Samadhi was constructed by Manicka Mudaliar, the plaintiff’s grandfather. Though Sivalingam was installed over the Samadhi, that does not mean that it is a religious institution and it could be called as a temple. Samadhi is therefore an indication to show that it is a place where some one attained Mukthi i.e. who had attained the feet of the Lord/God and no more than that. The Samadhi by itself can never be construed as a religious institution as contemplated under Sec.6(18) of the Act. In the above said circumstances, the facts set out in C.Ratnavelu Mudaliar v. The Commissioner for H.R. & C.E., (1953)2 M.L.J. 574 are not applicable to the case on hand. 27. “Samadhis” can broadly be divided into three categories: (1) Family or a Private Samadhi: Family members, out of love, affection and reverence instead of burying the dead body of their family members, in a place earmarked for that purpose in a village (Burial/cremation ground), would bury the dead body in their own place/land or in the garden and would build a structure over the same and it would be called as “Samadhi”. They may even offer daily pooja and lit a light and they would be maintained and administered by the family members/ relatives. (2) Public Samadhi: Public Samadhi would be administered by a group or set of people. If any person of a locality or any saint comes and settles at a particular place and does humanitarian social service showing concern for the public, and also preach religion or good morals and values of life and dies in the said area or elsewhere, his followers or admirers would bury his body in a particular place, where from, he was doing his service. On the said place, if the admirers/ followers of the deceased, by their joint efforts would also construct a structure or a building or a massive structure then the said place would be called as “Public Samadhi”. This kind of Samadhi, would be maintained/ administered by a group of people, by creating Trust irrespective of caste, by their personal contribution. By passage of time, people may even tend to offer Camphor and incessant sticks and would worship. This kind of Samadhi, would be maintained/ administered by a group of people, by creating Trust irrespective of caste, by their personal contribution. By passage of time, people may even tend to offer Camphor and incessant sticks and would worship. Festivals, Annadhanam and Guru Pooja would also be conducted periodically. (3) Public Samadhis of Popular Public figures: There are Samadhis for the persons renowned for their social, cultural, literary and political activities all over the country or in the State level for whom, either the Central Government or the State Government may establish a Samadhi. The Samadhis (Memorials) for Mahatma Gandhi, father of our Nation and Nehru at Delhi and for Kamarajar, and Annadurai (popularly known as Anna) in Tamil Nadu are such examples and they are maintained by the concerned Governments. In fact, the public go to those places to pay their respect and reverence to the departed leaders even offer worhsip by lighting camphor and incessant sticks. For that matter, these samadhis cannot be called as a temple or a religious institution. 28. Samadhi, overwhich, Sivalingam is constructed and there is a daily pooja and offerings in that place, would not become a temple. Dedication of property to a Samadhi, would not create a Status of a Temple to the said Samadhi. Conducting Guru Pooja, and offering “Annadhanam” to a Samadhi, would not turn the Samadhi into a religious institution. Allowing people from different sections and different religions, different walks of life to pay homage to the Samadhi, will not change the character of the Samadhi and transfer the same into a temple. 29. For all the reasons stated above, we have no hesitation to come to the conclusion that the suit institution is only a ‘samadhi’ and not a ‘temple’ as contended by the appellants. 30. In the result, both the L.P.As. are dismissed. No costs.