Judgment : Both the above appeal suits in A.S.No.960 of 1987 and A.S.No.654 of 1988 have arisen out of the common judgment and decree dated 25.6.1986 rendered in O.S.Nos.36 of 1985 and 37 of 1985 by the Court of Subordinate Judge, Nagercoil. Since, according to the lower Court, both the cases are interconnected in the sense that they pertain to one and the same organisation and the stand taken in both the cases being similar to each other by one and the same party, the common judgment has been passed by the lower Court. 2. On a perusal of the pleadings of the plaint and the connected materials placed on record, in the endeavour of tracing the history of the case, what comes to be known is that the respondent individual one Nalla Sivan Pillai has filed two O.As. No.7 and 10 of 1983, the first under ec.63(b) S and the second one under Sec.63(a) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as the Act) respectively praying to declare that he is the hereditary trustee of Chokkananthan Kalakutty Mutt and Veduganatha Pillayar Temple in Parakkai Village, Agasteeswaram Taluk, Kanyakumari District and its properties constitute a private Trust belonging to a Nanjilnadu Vellala Tarwad and that the said institution is a private religious institution. The said original applications having come to be dismissed on 25.2.1984, the said Nalla Sivan Pillai filed appeals in A.P. Nos.52 and 53 of 1984 against the order passed by the Deputy Commissioner, Tirunelveli in O.A. Nos.7 and 10 of 1983 before the Commissioner, H.R. & C.E. Department, Madras and the said Commissioner also, in consideration of the appeal memorandum and upon hearing the parties, would ultimately arrive at the conclusion to dismiss both the said statutory under Sec.69(1) of the Act, as a result of which, the party aggrieved has filed the statutory suits under Sec.70 of the Act in O.S. Nos.36 of 1985 and 37 of 1985 on the file of the Court of Subordinate Judge, Nagercoil praying thereby to set aside the order passed by the Commissioner in both the above appeals in A.P.Nos.52 and 53 of 1984 dated 10.4.1985 on averments that on the death of one Chokkananthan Kalakutty, his nephew Mylerumperumal managed the affairs of the aforementioned institutions; that the said Mylerumperumal executed a release of his rights on 19.4.1084 (M.E.) in favour of his nephew Sankaranarayanan Pillai, who was managing the whole affairs as Karnavan of the Tarwad; that during emergency, the village officer was appointed as the ‘fit person’ of the institutions and again in the year 1980, the appellant was appointed as the trustee being the nephew of Sankaranarayanan Pillai and started managing the affairs of the institutions. 3. 3. Thefurther averments are that at this time, the departmental authorities started misusing the provisions of the Act; that it is relevant to consider that the Act does not put any embargo on private management and individuals and towards of the families owning temples and properties; but however from the very advent of the Act in the year 1959, the functionaries of the Department started gaining grounds; that in the meanwhile Act 24 of 1976 of the Hindu Religious and Charitable Institutions Amending Act was promulgated, under which trustees appointed by the Department were promptorily ordered to hand over charge and management of this respective institutions and properties forthwith, lest, with the threat of a penalty of Rs.5,000 as fine or imprisonment for a period of three years, thus the trusteeship of Narayana Pillai, son of Sankaranarayanan Pillai coming to an end and the village officer came to be appointed as fit person; that in the meantime, since Sankaranarayanan Pillai, the Karnavan, died, the plaintiff started claiming the rights as the nephew of Sankaranarayanan Pillai and at that time, since Act 24 of 1976 became inoperative and spent out, under such a situation, the plaintiff was appointed as the trustee and he took charge from the village officer on 4.6.1981 as the charge list. But the appointment of the plaintiffs the trustee is no answer to his legal claim to the trust according to law and therefore, issuing a notice to the Commissioner, H.R., & C.E., Madras with intent to file a suit for declaration of his rights, to which the Commissioner directed him to file an application under Sec.63(a) of the Act, as a result of which, the plaintiff filed the application in O.A. Nos.7 and 10 of 1983 under Secs.63(b) and 63(a) of the Act before the Deputy Commissioner, H.R. & C.E. Department. 4. 4. Now, that after those applications having come to be dismissed and the appeals preferred before the Commissioner, H.R. & C.E. in A.P. Nos.52 and 53 of 1984 also having come to be dismissed alleging that the reasons assigned on the part of the Commissioner are faulty and contrary to the documentary evidence and the facts of the case, the plaintiff has come forward to file the statutory suits under Sec.70 of the Act praying for the reliefs seeking to set aside the order of the Commissioner rendered in A.P. Nos.52 of 1984 and 53 of 1984 both dated 10.4.1985 in the respective suits in O.S. Nos.36 of 1985 and 37 of 1985 before the lower Court. 5. In the written statement filed by the Commissioner, H.R. & C.E., besides putting the plaintiff to strict proof of all the averments of the plaint in general, he would also specifically deny that the mutt and the temple were founded by Chokkananthan Kalakutty as Karnavan of Nanjilnadu Vellala Tarwad; that as per the provisions of the Act, the mutt and the temple are public temples; that at the time the mutt and the temple were taken over by the H.R. & C.E. Department in the year 1965, it was Sankaranarayanan Pillai, who was managing the same and that the department appointed a non-hereditary trustee by its order dated 12.8.1972; however, this defendant would admit that Sankaranarayanan Pillai was authorised to conduct the Tharmams and Poojas till 1967; that the appointment of Narayana Pillai as the trustee was made in the year 1973; thus from 1965 to 1982, the department appointed trustees to the temple and the mutt only calling applications from persons on non-hereditary basis, who were strangers; that the plaintiff himself came with an application and was appointed by the Assistant Commissioner in his proceedings No.1577/78, dated 9.1.1979; but he was soon dismissed and the appeal filed against the said order was also dismissed by this defendant; that the plaintiff has no right to sell or alienate the temple properties without the sanction of this defendant under Sec.34 of the Act; that on such and other averments, this defendant would pray to dismiss the suits with costs. 6. 6. In the written statement filed by the second defendant, he would allege that when Mylerumperumal Pillai was in management of the private family trust and properties, on 19.4.1084 (M.E.) he executed a surrender deed in favour of his sister Sivan Pillai and his sisters son Sankaranarayana Pillai with respect to the properties mentioned in the said document; that they got possession of the properties also and were in enjoyment of the same thereafter; that the plaintiff is not the son of Sivan Pillai and Sankaranarayanan Pillai; that he is not the brother of Sivan Pillai; that Sankaranarayana Pillai got the properties under the surrender deed executed by Mylerumperumal Pillai. 7. This defendant would further submit that Chokkananthan Kalakutty gave properties in favour of the temple with specific direction for doing daily, monthly and periodical poojas and other Dharmams pertaining to the Mutt; that a mutation of name was effected and pattas were granted in favour of the Mutt and Pllayarswamy temple; that he surrendered the properties in favour of Sankaranarayana Pillai for running the poojas and doing Dharmams of the trust; that Chokkananthan Kalakutty endowed the properties for the Mutt and the Pillayar temple; that Sankaranarayanan Pillai,as per the surrender deed, became the trustee to manage the Mutt and the temple and he died in the year 1980; that the succeeding Karnavan has no right over the administration of the trust and its affairs and so far as the plaint trust is concerned, there is no tarwad and the nephew has no right to succeed; that after Sankaranarayana Pillai, the right to manage the trust and its affairs had befallen on his eldest son, who is the second defendant in this case; that Marumakkattayam law has no application to the facts of the case in hand; that after the death of the father, the last trustee, the rights devolved on his son. 8. 8. Thefurther averments of the written statement filed by the second defendant are that the action of the first defendant department was illegal; that it is a private trust and the right of trusteeship devolved on the son after the death of the last holder; that there is no tarwad and the Nanjilnadu Vellala Act has no application to the facts of the present case; that after Sankaranarayanan Pillai became old, the son became the trustee of the plaint trust and it was approved by the first defendant; that neither the first defendant has any authority to interfere with nor the plaintiff has any right in law nor is he entitled to succeed the office of the trusteeship since he is not a legal heir and the second defendant being the son of the last trustee, he is entitled to succeed the office of the trusteeship after the death of the father. Denying the other allegations also, this defendant would further pray to accept this written statement and dismiss the suits with costs. 9. Thetrial Court, based on these pleadings by parties and having framed four issues in O.S. No.36 of 1985 and further framing three issues in O.S.No.37 of 1985 for determination of all the questions involved in both the suits filed on the part of the plaintiff herein, would conduct a trial, in which, on the part of the plaintiff, he would examine himself as P.W.1 and the sole witness on his side and on the part of the defendants, three witnesses would be examined as D.Ws.1 to 3, of whom, D.W.3 is the second defendant. For documentary evidence, 21 documents would be marked on the part of the plaintiff as Exs.A-1 to A-21 and A-23 documents would be marked as Exs.B-1 to B-23 on the part of the defendants. 10. So far as the oral evidence is concerned, parties appearing as witnesses would attempt to confirm the facts pleaded to the maximum extent and in support of their respective cases. 10. So far as the oral evidence is concerned, parties appearing as witnesses would attempt to confirm the facts pleaded to the maximum extent and in support of their respective cases. So far as the documents placed on record by the plaintiff is concerned, Exs.A-1 and A-2 are the order made in A.P.No.52 of 1984 and its annexure dated 10.4.1984, Ex.A-3 is the release deed dated 19.4.1084, Exs.A-4 and A-5 are the notices dated 6.4.1981 and 25.4.1965, Ex.A-6 is the reply dated 10.5.1965, Ex.A-7 is a letter dated 15.6.1965, Ex.A-8 is the order appointing Narayana Pillai as Dharmakartha dated 4.6.1976, Ex.A-10 is the receipt book, Ex.A-11 is the change of mortgage deed dated 26.5.1981, Exs.A-13 to A-14 are the sale deeds all dated 23.4.1985, Exs.A-15 to A-17 are the receipts all dated 17.4.1985, Exs.A-18 to A-21 are the account books for different periods. 11. So far as the documents marked on the part of the defendants are concerned, Ex.B-1 is the application for appointment of Nalla Sivan Pillai as hereditary trustee dated 25.2.1979, Ex.B-2, dated 6.4.1981 is the list showing Nalla Sivan Pillai assumed office from Village Officer, Ex.B-3 is an order of appointment of Dharmakartha dated 27.10.1965, Ex.B-4 is yet another order by the Commissioner dated 5.7.1966, Ex.B-5 is an application of Narayana Nair for appointing him as a trustee, Ex.B-6, dated 24.5.1967 is the order appointing Narayana Pillai as the trustee, Ex.B-7 is an application by Narayana Pillai dated 29.11.1973, Ex.B-8 is the order of appointment dated 12.12.1973, Exs.B-9 and B-10 are the orders appointing the trustees and the charge obtained respectively on 4.6.1976 and 9.10.1976, Ex.B-11 is the order of appointment of Nalla Sivan Pillai as trustee dated 9.10.1979, Exs.B-12 and B-13 are the case bundles concerned with the Inspectors Report under Secs.63(a) and 63(b), Ex.B-14 is the notice dated 25.4.1965, Exs.B-15 to B-19 are the receipts for payment of tax, Ex.B-20 is a mortgage deed dated 10.3.1961, Ex.B-21 is the revocation deed dated 19.4.1984, Ex.B-22 is the sale deed dated 14.2.1118 and Ex.B-23 is the Panchayat Tax Receipt dated 21.3.1986. 12. 12. The trial Court having gone into the facts and circumstances as pleaded by parties and appreciating the evidence in its own manner, would ultimately arrive at the conclusion to pass the decree as prayed for by the plaintiff in the suits, further ordering the parties to bear their respective costs thereby setting aside the orders passed by the commissioner both in A.P. Nos.52 and 53 of 1984 both dated 10.4.1985, however giving findings to the effect that the temple fails outside the purview of the provisions of the Act and it is a private temple under the management of the plaintiff, it is only challenging these findings and conclusions arrived at, leading to the passing of the judgment and decree of the trial Court dated 25.6.1986, the first defendant in the suits, the Commissioner, H.R. & C.E Department, Madras, has come forward to prefer the above two appeal suits on certain grounds such as: (1) that the Court has shifted the burden of proof to the first defendant to establish that the suit institutions are temples under Sec.6(20) of the Act; (2) that the Court went wrong without first deciding whether the plaintiff has established his case to the effect that the institutions are their private properties; (3); that the Court below ought to have seen that the question of presumption would come into play only in the absence of any evidence to the establishment and management of the suit institutions; (4) that the Court below ought to have seen that the plaintiff and his ancestors submitted to the jurisdiction of the Act and appointed persons alone were in management of the suit temples from 1959 onwards, i.e., after the merge of Kanyakumari with Tamil Nadu; (5) that no proper documentary evidence has been placed on record to prove that the plaintiff and his ancestors established the suit temples and managed the same, which the lower Court has failed to see; (6) that the Court below erred in holding that the suit institutions are the private properties of the plaintiff and his ancestors; (7) that the Court below ought to have seen that the suit temples are the places of public worship and the dedication could be inferred from the fact as to how the people are making use of the temples. On such and other grounds, the appellant would pray to set aside the judgment and decree passed by the lower Court. 13. A careful perusal of the judgment of the lower Court would reveal that the lower Court, extracting the pleadings by parties and framing the issue in both the suits, had also allowed parties to have full opportunity of being heard by adducing oral and documentary evidence and would start appreciating the evidence in the context of the facts and circumstances of the case pleaded by parties issue-wise and while taking up issue No.1 of O.S.No.36 of 1985, which is an issue pertaining to whether Chokkananthan Kalakutty Mutt and Vadaganatha Pillayar Temple are the private institutions and establishments of Nanjilnadu Vellalar family, the Court below, at the outset, intending to ascertain its mode of approach to the subject matter, cite a judgment of the pre-independence and pre-determination of the linguistic States in India reported in Koman Nair v. Achuthan Nair I.L.R. 58 Mad. 91: A.I.R. 1934 P.C. 230 wherein it is stated to have been held that in the case of temples in Kerala there is no presumption that the temples are public temples and taking up this judgment as the base and the starting point for the construction of its judgment, the lower Court would further leap forward and would cite yet another judgment reported in Sri C.S.Ambigai Temple v. Commissioner of H.R. & C.E., Madras Sri C.S.Ambigai Temple v. Commissioner of H.R. & C.E., Madras Sri C.S.Ambigai Temple v. Commissioner of H.R. & C.E., Madras (1966)1 MLJ. 109 in order to find out the meaning of the definition of a temple under Sec.6(20) of the Act wherein it is held that it should be a place of public worship, that there should be acceptable proof of dedication for the benefit of the Hindu Community, that the worshippers have been using it as a place of public religious worship. 14. 14. From the angle of approach of the above two judgments, the lower Court has started dissecting the case in hand, which does not seem proper in the facts and circumstances encircling the cases in hand nor does it seem to be in adherence to the issues framed, which are positive in approach to the effect whether the said institutions are the private institutions of the family of the plaintiff and whether the ancestors and the plaintiff have been managing the affairs of the said institutions in their capacity as the hereditary trustees of the same which are the only two main issues to be answered in both the matters connecting to the appeals, since originally the two petitions initiated by the plaintiff in the suits before the competent authority under the Act were: (1) under Sec.63(a) for declaration that the institutions are private religious institutions and (2) under Sec.63(b) on grounds that the plaintiff, stepping into the shoes of his ancestors, is capable of being declared the hereditary trustee, pertaining to which, both the original and appellate authorities have categorically answered in the negative, as a result of which, the plaintiff was left with no option but to institute the statutory suits before the Court below seeking to set aside the orders passed by the Commissioner, H.R. & C.E., in his appeals. 15. While such are the conditions that are prevalent in deciding the issues, the lower Court should have, at the outset, realised that unlike in the former times when the subject matters were part of the Kerala State, now after the advent of the Tamil Nadu H.R. & C.E. Act of 1959 and since location of these institutions having been brought under the said Act, the fact that the laws that are prevalent in this State in the context of the subject matters have direct application should not be forgotten while taking a decision in matters of such nature as those in hand. Therefore, the Court below should have, at the outset, analysed the under-current of the provisions of the Act prior to having a negative approach of citing the above two judgments, one of which is of the bygone days and the other also to the effect of establishing the facts in the other way round attempting to find out the meaning of the definition of a temple. So far as the first decision cited from Koman Nair v. Achuthan Nair I.L.R. 58 Mad. 91: A.I.R. 1934 P.C. 230 is concerned, the time when this decision was rendered was entirely different from the present times wherein the principles embodied in the enactment are to be applied and therefore, bluntly what is remarked in the above judgment that “in the case of temples in Kerala, there is no presumption that the temples are public temples” cannot be applied to the facts of the case in hand since neither the Mutt nor the temple are now in Kerala nor those norms which were applied to suit the then prevailing circumstances to find out whether the temple was a private temple or a public temple, could be applied. Since at present such applications are subject only to the provisions of the enactments and therefore, excepting for arriving at the narrow point that whether the plaintiff is the direct descendent of the so called ancestors alleged to have been managing the affairs of the institutions, this proposition cannot be held good in the context of the facts involved in the present case. Therefore, it is hereby held that the presumption of the judgment of the Privy Council reported in Koman Nair v. Achuthan Nair A.I.R. 1934 P.C. 230 cannot be applied to the present case. 16. Secondly, coming to the next judgment reported in Sri C.S.Ambigai Temple v. Commissioner of H.R. & C.E., Madras Sri C.S.Ambigai Temple v. Commissioner of H.R. & C.E., Madras Sri C.S.Ambigai Temple v. Commissioner of H.R. & C.E., Madras (1966)1 MLJ. 109 when according to the first issue framed in O.S.No.36 of 1985, the onus is heavily on the plaintiff to prove since it is the plaintiff who has come forward to institute the suits, either regarding the existence or non-existence of facts, why should the lower Court, all of a sudden, go into the question of finding out the meaning of the definition of a ‘temple’ under Sec.6(20) of the Act that in order to bring the case under the definition of the temple, which should be a place of public worship when it is upto the plaintiff to prove positively that the suit Mutt and the temple are the private temples of the family of the plaintiff falling in line with the issues framed to the said effect. This sort of negative approach would enormously tilt the burden of proof shifting the same from the shoulders of the plaintiff to that of the defendant and therefore, this sort of negative approach should never be entertained by Courts either in framing of the issues or in the assessment or even in appreciation of evidence. 17. As apprehended above, fearing the consequences, the lower Court in the next paragraph itself, while starting to consider the merit of the case, harps on the first defendant for having not come forward to prove on its part that the split institutions are the religious institutions of public religious worship and would question that since on the part of the respondent who are managing the affairs of the temple they are not able to supply with sufficient materials in proof of their contentions that the institutions are not private institutions and that the plaintiff and his ancestors are not the hereditary trustees, the lower Court would conclude that the suit institutions would not become a place of public religious worship and on such negative approach, the trial Court, entirely throwing the burden on the first defendant, has arrived at the conclusion to decide that since the first defendant has failed to prove that the Mutt and the temple are the places of public religious worship and that the plaintiff is not the hereditary trustee of those institutions and therefore, would arrive at the conclusion to hold that the said institutions are private institutions of the family of the plaintiff and that the plaintiff is the hereditary trustee, which is not only erroneous but also illegal besides becoming liable to be set aside on ground of perversity in approach. 18. 18. It is pathetic to note that such highly erroneous conclusions are able to be arrived at by the trial Court to decide cases of such nature when it is an admitted case on the part of the plaintiff that from the advent of the Tamil Nadu H.R. & C.E. Act, the suit institutions have been taken over by the first respondent Department and fit persons were appointed and it continues till now and in these circumstances, when the plaintiff himself comes forward to set aside the order passed by the Commissioner, H.R. & C.E., refusing to accept his plea that the Mutt and the temple are private institutions belonging to the plaintiffs family and that he is the hereditary trustee, which is sought to be declared in both the suits, the lower Court has acted in the most irresponsible manner in deciding the matter without actually accepting the relevant evidence to substantiate these two issues but vaguely appreciating unnecessary and unconnected documents and having a negative approach of the whole episode so as to arrive at the erroneous conclusions as it has arrived at in both the suits connected to the above appeals and therefore, the judgment and decree was passed by the lower Court in both the suits concerned with the appeals become only liable to be set aside. Patent errors of law and perversity in approach writ large in the entire common judgment rendered by the trial Court and therefore, as rightly claimed on the part of the appellant in both the above appeals, the interference of this Court to be made into the judgment and decree become inevitable. 19. In result, both the above appeal suits succeed and they are allowed. 20. The Common judgment and Decree dated 25.6.1986 rendered in O.S.Nos.36 of 1985 and 37 of 1985 by the Court of Subordinate Judge, Nagercoil, is hereby set aside. 21. However, in the circumstances of the case, there shall be no order as to costs.