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Madras High Court · body

2010 DIGILAW 2062 (MAD)

The Commissioner v. Murugappan

2010-04-30

G.M.AKBAR ALI

body2010
Judgment :- 1. The Appeal Suits are filed against the judgment and decree dated 13.06.2005 passed in O.S.Nos.433 and 435 of 2003 on the file of the Principal Subordinate Court, Tirunelveli. 2. The subject matter of the Appeals under consideration is whether, an institution viz., “Arunachaleswarar Samathi Koil” or otherwise known as “Arunachaleswarar Koil Samathi” as mentioned in various records, is a Public Religious Institution as defined under Section 6(20) of the Hindu Religious and Charitable Endowment Act (herein after called as “Act”). The Hindu Religious and Charitable Endowment Department, represented by the Appellants (herein after called as “Department”) maintain that the subject matter (herein after called as “the institution”) is Temple and a religious institution as defined under Section 6(20) of the Act. 3. On the contrary, the “Huqdar” and his predecessor in title as well as the subsequent purchasers would maintain that the Institution is only a “Samathi” or “Samadhi” pure and simple. The dispute between the department and the persons in the management of the institution is going back to the year 1976, when the department declared that the institution was brought under the control in 1976 on the basis of a preliminary report of an Inspector of the Department in L.Dis.156/76. However only in the year 1985 the Assistant Commissioner of the Department issued a Notification in R.C.No.18122/80 D2 dated, 28.11.1985 calling for appointment of non-hereditary trustees for the institution and then the “Huqdar” issued a legal notice on 12.12.1985 opposing such appointment. The matter was closed and thereafter, the then “Huqdar” one Iyaa Subramaniya Mudaliar, the father of the Plaintiff/Respondent in O.S.No.433 of 2003 sold extensive of lands in Survey No.15/5B of a total extent of 3.39.5 hectares to various persons, who are the Plaintiffs/purchasers in O.S.No.435 of 2003 under various Sale Deeds. The trouble started when extensive and valuable lands were sold by the said Iyya Subramaniya Mudaliar and the department once again initiated proceedings. Iyya Subramaniya Mudaliar filed O.A.Nos.14, 15 and 16/95 before the Department in respect of Arulmegu Kamatchiamman Temple, Arulmegu Viswanathasami Temple, Arulmegu Mupidathiamman temple under Section 63-A of the Act to declare the temples as a private institutions and later altered the prayer under Section 63-B to recognise him as Hereditary Trustee. Iyya Subramaniya Mudaliar the then “Huqdar” died on 24.02.2000. Iyya Subramaniya Mudaliar filed O.A.Nos.14, 15 and 16/95 before the Department in respect of Arulmegu Kamatchiamman Temple, Arulmegu Viswanathasami Temple, Arulmegu Mupidathiamman temple under Section 63-A of the Act to declare the temples as a private institutions and later altered the prayer under Section 63-B to recognise him as Hereditary Trustee. Iyya Subramaniya Mudaliar the then “Huqdar” died on 24.02.2000. The Assistant Commissioner, HR & CE, Tirunelveli in his proceedings in R.C.No.7773/2001, dated 23.08.2001 directed the Inspector, Palayamkottai to enquire and submit a report. An enquiry was conducted by the Inspector and a report was also promptly filed. The Respondent, who is the son of the said Iyya Subramaniya Mudaliar, filed a Petition under Section 63-A of the Act before the Joint Commissioner, HR & CE, Tirunelveli to declare the Preswent institution is not a religious institution or temple under the provisions of the Act and the Petition was taken on file in O.A.No.2 of 2002. The then Joint Commissioner, after a detailed enquiry found that institution is only a “Samathi” and not a religious institution as defined under Section 6(20) of the Act. 4. The Special Commissioner, HR & CE, Chennai, initiated a suo moto Revision under Section 69(2) of the Act, in S.M.R.No.5 of 2003. By an order dated 30.09.2003, he set aside the order of the Joint Commissioner and held that the institution is a religious institution as defined under Sections 6(18) and 6(20) of the Act. 5. Aggrieved by the said order, the Respondent filed the present statutory Suit under Section 70, of the Act before the Sub-Court, Tirunelveli for the relief as stated above and the purchasers along with the another son of the said Iyya Subramaniya Mudaliyar had filed a Suit in O.S.No.435 of 2000 under Section 17(A1) of the Act for a similar relief. 6. The Suit institution with the extensive Nanja and Punja lands in various Survey Numbers, situate in V.M. Chathram Village otherwise known as Vijayaragava Mudaliar Chathram. Indisputably the entire Village was an Inam Village and the name itself denotes an establishment of a Chatram and Temples thereon in a Village called Vijayaragavapuram. The earliest “Huqdar” was one Pumbavai Viswanatha Mudaliyar. This fact is established under a “Will” dated 04.04.1877, which is marked as Ex.A2. The genealogical tree, which is marked as Ex.B1 would show the name of one Vijayaragava Mudaliayar in the year 1782. The earliest “Huqdar” was one Pumbavai Viswanatha Mudaliyar. This fact is established under a “Will” dated 04.04.1877, which is marked as Ex.A2. The genealogical tree, which is marked as Ex.B1 would show the name of one Vijayaragava Mudaliayar in the year 1782. Therefore, Chatram and the existence of Arulmigu Kamatchiamman Temple, Arlmigu Viswanathasami Temple, Arulmigu Mupidathiamman temple and their characters are not disputed. The institution relates to a Samathi of Poompavai Arunachala Mudaliar, the Testetor of the Will of the year 1877, who died in the same year in the month of Panguni a Wednesday. There are also a Samathi of his wife Visalatchiammal and their pet-dog and there is also a Samathi of Ayya Sami Mudaliyar (father of the Plaintiff) and also a Samathi of Thaiyal Nayagi Ammal (mother of the Plaintiff). These Samathies are situated in Survey No.15/8. The character of the entire structures with all these Samathies referred to as Arunachleswarar Samathi Koil or Arunachleswarar Koil Samathi or Arunchalamudaliyar Samathi Koil is in dispute. However, the real dispute seems to be the extensive of land attached to the institution. Though there are other religious institutions under the name Arulmigu Kamatchiamman Temple, Arulmigu Viswanathasami Temple, Arulmigu Mupidathiamman Temple established by the Huqdars, the entire property stands in the name of the above said Huqdars of the institution and therefore, it has become necessary to decide the character of the institution. 7. Indisputably, the Samathi of Poompavai Arunachala Mudaliar was established in the month of Panguni of the year 1877 evidenced by the inscription thereon. Thereafter, the other four Samathies of the successor Huqdar and even a Samathi of a petdog was also established later. 8. Extensive arguments were advanced by Mrs. Chellammal, learned Additional Advocate General to drive home the point that the entire structure is only a temple known as Arunachaleswarar Temple. The learned Additional Advocate General relied on various documents in which, the institution is referred as Arunachaleswarar Koil Samthi or Arunachaleswarar Samthi Koil. The learned Additional Advocate General relied on the “Will” of the year 1877 of Poompavai Arunachala Mudaliar and pointed out that the earliest establishment was only Chatram and Temple and the properties were Inam properties, which belong to the Temple. The learned Additional Advocate General pointed out that under the said “Will” the Huqdars are to maintain the temple from the income of the Inams. The learned Additional Advocate General pointed out that under the said “Will” the Huqdars are to maintain the temple from the income of the Inams. The learned Additional Advocate General also pointed out that the next Huqdar namely, Shanmugavel Mudaliar had also executed a “Will” dated 20.04.1923, which is marked as Ex.A3 under which, it was categorically stated that the succeeding Huqdar shall maintain the Temple and Chatram from the lands given under the Patta belonging to Arunachaleswarar Samathi Koil. The learned Additional Advocate General pointed out that in all the Revenue Records including the proceedings of the Settlement Thasildar, which is marked as Ex.A10, would show that the properties belonged to Arunachaleswarar Temple and in the Settlement proceedings Ayya Subramaniya Mudaliar represented the Temple as hereditary trustee. The learned Additional Advocate General further pointed out that in the Land Acquisition proceedings, the said Ayya Suramaniya Mudaliar had admitted the fact that the property belonged to the temple and he always claimed himself as a hereditary trustee. 9. The above arguments were countered by Mr. T.V. Ramanujam, Senior Counsel for the Respondents. The learned Senior Counsel pointed out that the suit institution in question is a private institution in character and there is no dedication in favour of the public and the Assistant Settlement Officer has given Patta in favour of the institution represented by the family members and it is a ryathwari Patta and whatever be the nomenclature, as Koil or Samathi Koil, the institution in question is a private institution being managed by the members of the family as private property and the family members have been buried there. The learned Counsel also relied on the report of the Advocate Commissioner. 10. Therefore, the only point that arises for consideration in these Appeals is whether the Suit Institution is religious institution?. Section 6(18) of the Act, prior to the amendment, reads as follows: “(18)” “religious institution” means a math, temple or specific endowment and includes,- (i) a samadhi or brindhavan; or (ii) any other institution established or maintained for a religious purpose. Therefore, the only point that arises for consideration in these Appeals is whether the Suit Institution is religious institution?. Section 6(18) of the Act, prior to the amendment, reads as follows: “(18)” “religious institution” means a math, temple or specific endowment and includes,- (i) a samadhi or brindhavan; or (ii) any other institution established or maintained for a religious purpose. Explanation: (1) “samadhi” means a place where the mortal remains of a guru, sadhu or saint is interned and used as a place of public religious worship; (2) “brindhavan” means a place established or maintained in memory of a guru, sadhu or saint and used as a place of public religious worship, but does not include samadhi”. 11. After amendment the definition of Religious Institution runs as follows; (18)” “religious institution” means a math, temple or specific endowment”. Therefore, we could see that the word Samadhi has been removed with effect from 01.04.2008. The reasons and object of the Act would state that in order to avoid the Samadhis of persons except saintly person to be brought under the purview of the Act the amendment has been sought for. 12. In Sri Ramanasramam byits Secretary, G. Sambasiva Rao and others v. The Commissioner for Hindu Religious and Charitable Endowments, Madras, 1960 (2) MLJ 121 it was held as follows: “That the institution in question called Mathruboothewarasami is only a Samadhi and not a Temple is established by the facts of this case. It is admittedly the Samadhi of a Hindu Brahmin widow, viz., the mother of Sri Ramana Maharishi. Such a Samadhi cannot be consecrated and Prana Prathishta done, which is essential for the installation of the idol. Otherwise, the Lingam would be a mere piece of stone and nothing else. It is only Prana Prathishta which makes it a living God, a juristic entity, entitling it to be an object of gift. …” 13. In The Commissioner, Hindu Religious and Charitable Endowments Board, Nungambakkam, Madras and another v. T.S. Palanichamy and seven others, 2003 (1) CTC 65 , wherein a Division Bench of this Court has held as follows: “22. Each case has to be decided on the basis of the evidence placed before the Court in that case and not on the basis of any non-statutory presumption of the nature canvassed for by the State. Each case has to be decided on the basis of the evidence placed before the Court in that case and not on the basis of any non-statutory presumption of the nature canvassed for by the State. What is crucial for the purpose of deciding as to whether the temple is a public temple or private is the dedication to the public and the right recognised in public to offer worship at the temple as of right. That question is to be decided on a consideration of the oral and documentary evidence in the case and not on the basis of any non-statutory presumptions.” and also relied on Radhakanata Deb v. The Commissioner of Hindu Religious Endowments, Orissa, AIR 1981 SC 798 wherein the following four tests were enumerated as- “(1) Whether the user of the temple by members of the public is of right; (2) Whether the control and management vests either in a large body of persons or within the members of the public and the founder does not retain any control over the management; (3) Whether the dedication of the properties is made by the founder who retain the control and management and whether control and management of the temple is also retained by him; and (4) where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by the members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.” 14. In Asst. Commr., HR and CE., Fit Person Sri Mayuranatha Swami Temple, Tiruvanmaiyur and another v. Maha Tejo Mandala Sabha and others, etc., 2010 CIJ 156 PLJ wherein this Court laid the following ratio on 21.12.2009 decided whether the Samathi is a religious institution or not? “a. Samadhi of a saintly person where Guru pooja and Annadhanam are being carried on cannot be termed as either a public temple or public endowments, b. Installation of statute of any Hindu God without consecration alongside the Samadhi would not make it a temple. c. To treat any Samadhi as a temple on the basis of customary practice, the customary practice should have been in existence for over several centuries.” 15. In Commissioner H.R. and C.E. v. Veluchamy, 1987 (4) MLJ 403 wherein this Court has held as follows: “39. c. To treat any Samadhi as a temple on the basis of customary practice, the customary practice should have been in existence for over several centuries.” 15. In Commissioner H.R. and C.E. v. Veluchamy, 1987 (4) MLJ 403 wherein this Court has held as follows: “39. It is relevant to note that worship which has grown up round the thumb of a human being does not fall within the category of religious worship. The building of a samadhi of a tomb over the remains of a person and the making of the provision for the purpose of Guru pooja and other ceremonies in connected with the same cannot be recognised as a charitable or religious purpose according to Hindu Law. 16. Therefore, we could see that catena of judgments are to the effect that a Samathi where annual and daily guru pooja alone are being carried cannot be termed as a Temple, more particularly, as a public Temple or public Institution. Installation of statute of any Hindu God without consecration on the Samathi would not make it a Temple. The absence of express or implied dedication in favour of public and the absence of Karpagiraham, Vimanam, Dwajathasjambam, Pragaram and absence of performing daily pooja and Archana or any Kattalai and absence of urchava Idol would cumulatively confer that the institution is only a Samathi and not a Temple. 17. In the instant case, V.N. Chatram and Temple where in existence prior to 1877 and there were properties and the ancestors of the family of the Plaintiff were Huqdar right from 1877 and even prior. However, Poombavai Arunachala Mudaliar was buried in Survey No.15/8 and thereafter, his wife, pet-dog his son and his wife were also buried. 18. Admittedly, as per the “Will”, annual and daily Guru poojas are being done to the Samathi. Though there is a Lingam installed on the top of the Samathi, it is establised that it is customary to install a Lingam on the top of the Samathi and it has no relevancy to Agamas or Sasthras. From the evidence it is clear that the suit institution is only a Samathi and do not fit in the definition of a religious institution under Section 6(20) of the Act. 19. The Adangal extract would show that the patta was issued in the name of the Arunachala Mudaliyar temple, Huqdar K.A. Subramaniya Mudaliyar. 20. From the evidence it is clear that the suit institution is only a Samathi and do not fit in the definition of a religious institution under Section 6(20) of the Act. 19. The Adangal extract would show that the patta was issued in the name of the Arunachala Mudaliyar temple, Huqdar K.A. Subramaniya Mudaliyar. 20. Ex.A10 is the order of the Settlement Thaslidar under Minor Inams Act, 1963, dated 29.02.1972 and this Settlement proceedings relates to three categories of lands in 16 Survey Numbers. The first category relates to Ryot land of Arunachaleswarar Temple represented by the hereditary trustee viz., Ayya Subramaniya Mudaliar; the second category relates to Ryot land in favour of Ayya Subramaniya Mudaliar and the third category relates to private Pannai lands of the Indamdars of the land holders. The Settlement Thasildar has held that for those lands patta has been granted to the “Arunachaleswar Temple and Samathu” represented by the hereditary trustee Ayya Subramaniya Mudaliar. 21. For the second category of lands the Patta has been issued jointly in favour of Arunachaleswarar Temple and Ayya Subramaniya Mudaliar. For third category of Pannai land the Inamdars’ claim was rejected. Therefore, for the first time in the Settlement proceedings, the lands were registered in favour of Arunachaleswarar Temple Samathi represented by the trustee Ayya Subramaniya Mudaliar. Ayya Subramaniya Mudaliar was the Huqdar and therefore, referred as trustee and hereditary trustee. During the pendency of this Appeal, a register was produced by the Appellant and a copy of the document from the archives from the Collectorate was also produced. This register would mention the institution as Arunachaleswarar Temple. 22. The claim of the department seems to be, as there is a Lingam installed, the daity is known as Arunachaleswarar. This argument is untenable for the simple reason that the Samathi was established as early as 1877 and it is customary to install a Lingam. Therefore, as far as the properties are concerned it is in the name of Arunachaleswarar Koil Samathu and prefixing the term Koil to the Samathu will not give a character to the Samathi as a Temple. It will not also be out of context to point out that there are five Samathis in the suit survey and none of them claimed to be a Saintly person. It will not also be out of context to point out that there are five Samathis in the suit survey and none of them claimed to be a Saintly person. Therefore, the suit institution is only a Samathi and therefore, it will not come within the definition of Sections 6(18) and 6(20) of the Act. The point is answered accordingly. 23. The learned Trial Judge has correctly decided the issue and I have no reason to interfere. In the result, the Appeals are dismissed. No costs.