Nallor Marthandam Vellalar vs Commr., Hindu Religious and Charitable Endowments

The Commissioner, Hindu Religions and Charitable Endowments and Ors.

DATE OF JUDGMENT: 30/07/2003

BENCH: SHIVARAJ V. PATIL & D.M.DHARMADHIKARI.

JUDGMENT:

J U D G M E N T

SHIVARAJ V. PATIL J.

The appellants filed suit for declaration that the

suit temple is a denominational temple and that the

defendants 1 and 2 have no jurisdiction to appoint the

third defendant as fit person. The trial court decreed

the suit. The first appellate court reversed the

judgment and decree passed by the trial court and

dismissed the suit. The High court in second appeal

upheld the judgment and decree passed by the first

appellate court.

The High Court in the impugned judgment has

narrated the facts in sufficient details based on the

pleadings of the parties and the material that was

placed on record. It is not necessary to state them

again. However, to the extent they are relevant and

necessary in the light of the contentions advanced on

behalf of the parties, we notice them hereunder.

The case of the plaintiff before the trial court

was that the first plaintiff is a denominational temple

entitled to exemption as provided under Article 26 of

the Constitution of India and Section 107 of the Tamil

Nadu Hindu Religious and charitable Endowments Act,

1959 (for short `the Act'); the temple is in Nalloor

village and is known as Sree Uchini Makali Amman

Temple, built on an extent of 17 cents in S.No. 1593

and that the entire extent is owned by the Vellala

Community of Marthandam. The Vellalas residing in

Marthandam are a collection of individuals professing

Hindu faith; the ancestors of the members of the

community constituting corporate body founded the

temple in the land purchased by the members of Vellala

Community. The plaintiff further claimed that the

members of Vellala Community observed special religious

practices and beliefs which are integral part of their

religion and that the front mandappam of the Sanctorium

is open to access only to members of their community

and none-else. Outsiders can offer worship from the

outer compound.

The first defendant filed written statement

contending that the first plaintiff-temple is a public

religious institution under the control of HR&CE

Department; it was brought under the control of the

Department in the year 1965; the origin of the temple

or the name of its founder is not known; the properties

owned by the temple stand in its name; an extent in

S.No. 1593 has been leased out for a cinema theatre and

the rent due forms the main source of income for the

temple; the public also contribute in the hundiyal kept

in the temple; the temple is not a denominational as

claimed by the plaintiffs. It is the further case of

the first defendant that the Department has been

appointing non-hereditary trustees for the temple and

the management vests with the trustees so appointed

from time to time by the Department. In the year 1965

when the temple was brought under its control, the

Department called for objections for appointment of

non-hereditary trustees and there was no objection to

the proposal and regular applications were invited for

appointment of non-hereditary trustees. Five persons

including Padmanabha Pillai and Subramania Pillai

(plaintiffs 2 and 3) volunteered for the appointment;

the Area Committee by its resolution dated 31.1.1966

appointed those persons as non-hereditary trustees;

further in a special meeting convened by the Inspector

of the Department, one Manickavasakam Pillai was

elected as Chairman of the Board of trustees and the

said resolution was approved by the Assistant

Commissioner (defendant no. 2) by his order dated

7.3.66. After the expiry of the tenure of office of

those persons, fresh notices were issued calling for

applications from desiring persons to be appointed as

non-hereditary trustees to fill up vacancies in the

Board. Plaintiffs 2 to 5 were estopped by their

conduct from contending that the suit temple is a

denominational one and that the plaintiffs have no

inherent right to be in management of the said temple.

The trial court on the basis of the pleadings of

the parties and the evidence let in, in support of

their respective claims held that the suit temple is a

denominational temple entitled to protection as claimed

and it is not a public religious institution; at the

same time, it was held that Department is entitled to

exercise such powers which are conferred on them by law

in regard to the administration of the institution and

that the authorities had no power to appoint fit person

so as to interfere with the administration of the

temple by Vellala Community. The Subordinate Judge in

the first appeal held that the members of Vellala

Community do not form a religious denomination, but

they are merely a sub-caste of the Hindu religion;

their practices and observance do not lead to the

conclusion that they have common faith or they profess

certain religious tenet having common faith. He also

took the view that several features relied upon by the

plaintiffs were not sufficient to identify the

institution as a denominational one. In doing so, the

first appellate court relied upon the principles laid

down in the decisions reported in S.P.Mittal vs. Union

of India and Ors. [AIR 1983 SC 1] and The Commissioner,

Hindu Religious Endowments, Madras, vs. Sri Lakshmindra

Thirtha Swamiar of Sri Shirur Matt [AIR 1954 SC 282].

In the second appeal, the learned Judge of the High

Court by a well-considered order which is impugned in

this appeal concurred with the views expressed by the

first appellate court. The learned Judge on a clear

analysis of the legal position expressed and explained

in various decisions, touching the question in

controversy and applying them to the facts of the

present case in the light of the rival claims, upheld

the judgment and decree passed by the first appellate

court.

Learned counsel for the appellants contended that-

(1) Under Section 1(3) of the Act, the institution

concerned should be public religious institution;

the religious institution is defined in Section

6(18) and temple is defined in Section 6(20) which

includes a sectarian temple; a sectarian temple

could be a public or private; the Act gets

attracted only to sectarian temples which are

public and not which are private.

(2) The suit temple belongs to Vellala Community and

there is one single deity, namely, the Uchini

Makali Amman and that their own distinct customs

and beliefs constitute a "religious

denomination" and as such their fundamental right

under Article 26 of the Constitution and their

right under Section 107 of the Act, cannot be

transgressed by the authorities under the Act. In

support of this submission, he placed reliance on

the decisions of this Court in Gurpur Gunni

Venkataraya Narashima Prabhu and Ors. vs. B.C.

Achia, Asstt. Commissioner, Hindu Religious and

Charitable Endowment, Mangalore and Anr. [AIR 1977

SC 1192] and K.Eranna and Ors. vs. Commissioner

for Hindu Religious and Charitable Endowments,

Bangalore & Ors. [AIR 1970 Mysore 191].

(3) The High Court committed an error in holding that

the members of Vellala Community have no distinct

name and common faith.

(4) Plaintiffs moved the court in 1976 as soon as a

non- Vellala Community man was sought to be made a

trustee; the conduct of plaintiffs between 1965 to

1976 cannot result in a waiver of fundamental

rights.

In opposition, the learned counsel for the

respondents made submissions supporting the impugned

judgment reiterating the submissions that were made

before the High court. He further contended that the

first appellate court on a re-appreciation of entire

evidence on record has recorded a finding of fact

against the plaintiffs as to nature of temple supported

by good reasons; the High Court rightly found that the

judgment and decree of the first appellate court did

not call for any interference. Under the circumstances,

according to him, the impugned judgment deserved to be

maintained.

It is settled position in law, having regard to

the various decisions of this Court that the words

"religious denomination" take their colour from the

word `religion'. The expression "religious

denomination" must satisfy three requirements – (1) it

must be collection of individuals who have a system of

belief or doctrine which they regard as conducive to

their spiritual well-being, i.e., a common faith; (2) a

common organisation; and (3) designation of a

distinctive name. It necessarily follows that the

common faith of the community should be based on

religion and in that they should have common religious

tenets and the basic cord which connects them, should

be religion and not merely considerations of caste or

community or societal status. On the basis of the

evidence placed on record, the first appellate court as

well as the High Court found that Vellala Community is

not shown to be a distinct religious denomination,

group or sect so as to be covered by Article 26 of the

Constitution. Further, it was necessary for the

plaintiffs to establish their claim in respect of the

temple that the said denomination group has established

and is maintaining and administering the suit temple to

take the protection of Article 26 of the Constitution

and Section 107 of the Act. High Court found, after

meticulous and careful consideration of material that

there was no evidence to prove that the members of the

Vellala Community have been shown to have any common

religious tenets peculiar to themselves other than

those who are common to the entire Hindu community.

The High Court in the impugned judgment has observed

that the materials placed by the appellants at best may

go to show that during certain period members of their

community were playing a major role in the

administration of temple. The learned Judge of the

High Court also found that the material on record was

not sufficient to hold that the members of Vellala

Community established the temple in question, nor was

there proof of initial establishment of the temple by

them. The first appellate court held that the

materials on record were not sufficient in law to show

that Vellala Community initially established the

temple. Thus, the first appellate court on facts

recorded finding against the plaintiffs which findings

were affirmed by the High Court and rightly so in our

opinion. Here itself, we may notice one more ancillary

submission of the learned counsel for the appellants

that there is no presumption as regards the temples in

Marthandam that they are public trusts and they must be

established so, on evidence. This submission was made

taking support from two decisions (1) Mundacheri Koman

vs. Thachangat Puthan Vittil Achuthan Nair and Others

[A.I.R. 1934 PC 230] and (2) The Commissioner, Hindu

Religious and Charitable Endowment (Administration

Deptt.), Madras vs. P.Vellappan Nair [2001 (3) L.W.

327]. The finding of fact in the case on hand is not

recorded merely by raising a presumption. On the other

hand, finding of fact is recorded on the basis of

evidence available on record. Hence, these two

decisions do not advance the case of the appellants.

In the light of finding of fact recorded by the

first appellate court as affirmed by the High Court,

the argument sought to be made that the Act gets

attracted only to sectarian temples which are public

and not to sectarian temples which are private in view

of Sections 1(3), 6(18) and 6(20), do not help the

appellants when there is a finding that it is not a

private temple. Added to this, the temple was taken

under the control of the Department in the year 1965.

That was not challenged by the appellants; Department

called for objections for appointment of non-hereditary

trustees not restricting to members of Vellala

Community only; then also no objections were filed;

thereafter regular applications were invited for

appointment of non-hereditary trustees not from the

members of Vellala Community only; five persons

including appellants 2 and 3 who volunteered for

appointment as non-hereditary trustees were appointed

by the resolution dated 31.1.1966; further in a special

meeting conveyed by Inspector of the Department, one

Manickavasakam Pillai was elected as Chairman of the

Board and the said election was approved by the

Assistant Commissioner of the Department on 7.3.1966;

on the expiry of the tenure of office of trustees,

fresh notices were issued calling for applications from

desiring persons to be appointed as non-hereditary

trustees to fill up four vacancies in the Board. We

specifically asked learned counsel for the appellants

whether in the notices issued inviting applications for

appointment as non-hereditary trustees, any restriction

was made confining applications to the members of the

Vellala Community only. The learned counsel fairly

stated that in the notices, no such restriction was

made. Again in 1972, as noticed in the impugned order,

5th appellant was appointed as trustee. The

appellants 2, 3 and 5 were appointed by the Board and

they were not chosen representatives of the community.

Under the circumstances, the claim of the appellants

was rightly negatived looking to their conduct. Hence,

it follows that the appellants were estopped by their

conduct from contending that the suit temple is a

denominational one and that the plaintiffs have any

inherent right to be in management of the said temple.

As such they were not entitled to claim any protection

under Article 26 of the Constitution or under Section

107 of the Act.

The decision in Gurpur Gunni Venkataraya Narashima

Prabhu and Ors. (supra) in our view does not support

the case of the appellants. That decision was rendered

on the facts of that case as observed in the impugned

judgment. In that case, it was found on evidence that

the temple was founded by 37 Goud Saraswat Brahmin

families of Gurpur that the trustees managing the

temple belonged always to the said Community, the

landed properties owned by the temple had all been

endowed by members of the said community; there was no

reliable evidence of endowment of any immovable

property by any person outside the Community. Further

in that case, the Subordinate Judge found that the

defendants' witnesses on whom the defendants relied to

prove that the temple was dedicated to the general

Hindu community did not claim right of worship in the

temple. But in the present case with which we are

concerned, facts are different and findings of the fact

recorded go against the appellants.

The learned Judge in the impugned judgment

referred to the case of K.Eranna and Ors. (supra) and

held that the observations made in that decision are

too wide and cannot be said to be in conformity with

the catena of decisions of this Court as well as the

High Court of Madras which are referred to in the

impugned judgment itself.

Thus, viewed from any angle, we do not find any

merit in this appeal. Consequently, it is dismissed.

No costs.