R. M. Sundaram @ R. Meenakshisundaram vs Sri Kayarohanasamy And Neelayabhakshi Amman Temple

R.M. SUNDARAM @ MEENAKSHISUNDARAM ... APPELLANT

VERSUS

SRI KAYAROHANASAMY AND NEELAYADHAKSHI AMMAN TEMPLE (THROUGH ITS EXECUTIVE OFFICER) NAGAPATTINAM, TAMIL NADU ... RESPONDENT

JUDGMENT

SANJIV KHANNA, J.

The dispute in the present appeals arises from two separate

suits in relation to (i) the dedication of 26 items of jewellery1, some

of which are embedded with diamonds and precious stones, to the

deity Sri Neelayadhakshi Amman of the Sri Kayarohanasamy and

Neelayadhakshi Amman Temple;2 and (ii) the exclusive possession

of the ‘Kudavarai’ (safe vaults) of the Temple which houses the suit

jewellery.

1 For short, ‘suit jewellery’.

2 Hereinafter referred to as the ‘respondent’ or ‘Temple’.

Civil Appeal Nos. 3964-3965 of 2009 Page 1 of 38

2. It is the case of the appellant, R.M. Sundaram, that the suit jewellery

was inherited by him as his personal property being the adopted

son of Muthuthandapani Chettiar and his wife, M. Thangammal. On

6th November 1985, the appellant had instituted a civil suit (O.S. No.

156/1986) before the court of the District Munsiff of Nagapattinam

seeking, inter alia, a mandatory injunction directing the Temple to

comply with the undertaking given in the letter dated 4th October

1962 and thereby permit the appellant to “maintain independent

and exclusive possession and enjoyment of the Kudavarai” of the

Temple. It was pleaded that during the lifetime of his father,

Muthuthandapani Chettiar, the suit jewellery known as ‘Abaranam’,

that was owned and possessed by Muthuthandapani Chettiar, was

licensed to be kept in the Kudavarai of the Temple. The proprietary

right, title and interest in the suit jewellery continued to vest with

Muthuthandapani Chettiar, who had retained possession and

remained the exclusive owner of the suit jewellery throughout his

lifetime. By way of gratitude, Muthuthandapani Chettiar, in terms of

a letter of undertaking dated 4th October 1962, had given the keys

of two external locks of the Kudavarai to the Executive Officer of

the Temple to temporarily store the Temple jewellery, which is

different from the suit jewellery, in the Kudavarai. This was a

temporary arrangement, as expressly stated in the undertaking,

Civil Appeal Nos. 3964-3965 of 2009 Page 2 of 38 and the Temple jewellery would be shifted back to the treasury

room of the Temple after it was renovated. The plaint also refers to

a civil suit filed by the respondent/Temple in the year 1981 (O.S.

No. 99/1981) before the Subordinate Judge of Nagapattinam, an

aspect which we would advert to in some detail later on.

3. The respondent/Temple contested the suit on several grounds

including, inter alia, the appellant’s right to file such a suit, the

maintainability of the suit filed, the appellant’s status as the adopted

son on Muthuthandapani Chettiar, the appellant’s lack of title over

the suit jewellery, and the custody over the keys of the Kudavarai

by Muthuthandapani Chettiar being merely an honorary

responsibility. On merits, it was contended by the Temple that the

suit jewellery, namely Abaranams, and the Temple jewellery were

acquired from time to time over the past few centuries by way of

donations or endowments made by unknown donors. The suit

jewellery as well as the other Temple jewels have always been in

the custody, use, enjoyment and possession of the idol/deity, Sri

Neelayadhakshi Amman, only through the functionaries of the

Temple and no other person. The suit jewellery was donated by the

ancestors of Muthuthandapani Chettiar absolutely to the idol/deity

and constitutes a specific endowment attached to the Temple. The

donations have been recorded as Sri Adipoora Amman

Civil Appeal Nos. 3964-3965 of 2009 Page 3 of 38 (Neelayadhakshi Amman) Thiruvabaranam Endownment. The suit

jewellery is adorned by Sri Neelayadhakshi Amman deity for ten

days in the month of Adi every year marking the festival of

adolescence and puberty in a celestial and mythological sense. On

this occasion, many people, particularly women, celebrate the

festival with great enthusiasm by distributing all sorts of ‘Mangala

Samans’ to all women devotees and worshippers thronging the

Temple. During this festival time, the ‘Utsava’ deity of Sri

Neelayadhakshi Amman (popularly known as Sri Adipoora Amman)

and the deity idol (Sri Neelayadhakshi Amman) used to be/are

decked and decorated in all glory and grandeur with gold and silver

jewellery studded with precious stones from ‘Kireedam to Thiruvadi’

and then taken out in a Temple car and ratham in grand procession

around the four streets on all ten days of the festival. The Kudavarai

is located inside the Temple and is the innermost and integral

portion of the Temple. It is guarded in terms of security and

operated on a system of ‘Multiple Lock and Keys and Joint Control,

Operation and Maintenance’ (MLKJCOM), to ensure safe custody

of jewellery and valuable articles. Therefore, the suit jewellery was

only used on the occasion of the Adipooram festival and could not

be taken out of the Kudavarai frequently or at will. While admitting

that two keys of the external door-way of the Kudavarai as well as

Civil Appeal Nos. 3964-3965 of 2009 Page 4 of 38 the keys of the iron safe, wherein the suit jewellery was kept, were

with the appellant, it is stated that the management of the

respondent/Temple was in possession of several keys, including

keys of the external door-way of the Kudavarai. Apart from the

wooden jewellery boxes inside the iron safe, the Kudavarai also

houses the two steel almirahs wherein the Temple jewellery and

other Thiruvabaranams are kept. These articles and the suit

jewellery do not belong to any person or private individual and

were/are for the use of the deity.

4. With reference to the letter of undertaking dated 4th October 1962,

it is stated that the undertaking is a dead letter as it creates no right

or privilege in favour of the appellant and in any event,

Muthuthandapani Chettiar and his wife, M. Thangammal, had

neither sought to enforce this letter-undertaking nor sought return

of the two keys during their lifetime. The appellant had, nearly 23

years thereafter, raised a claim in respect of the suit jewellery.

5. The suit filed by the appellant was dismissed by the trial court, vide

judgment dated 26th November 1990, primarily on the ground that

the suit was not maintainable and that the undertaking was not

acted upon by the appellant’s adoptive father, Muthuthandapani

Chettiar. The respondent/Temple being a religious institution under

Civil Appeal Nos. 3964-3965 of 2009 Page 5 of 38 the Tamil Nadu Hindu Religious and Charitable Endowments Act,

1959,3 the Government can frame rules regarding the custody of

jewels, other valuables and documents of religious institutions

under Section 116(2)(xii) of the 1959 Act, which would also apply

to the suit jewellery in the Kudavarai. The appellant, instead of

applying to the Commissioner, had filed the civil suit which was not

maintainable under Section 108 of the 1959 Act. The claim for

possession of Kudavarai was also barred as it interfered with the

internal administration of the Temple.

6. In relation to the undertaking dated 4th October 1962, the trial court

observed that it was never acted upon by Muthuthandapani Chettiar

prior to his death in 1969 and that the relief sought by the appellant

was barred by limitation as it was instituted beyond the period of

three years as stipulated in Article 113 of the Limitation Act, 1963.

7. The first appeal (A.S. No. 354/1992) preferred by the appellant

against this judgment was also dismissed by the Subordinate

Judge, Nagapattinam, vide judgment dated 30th August 1993, who

reiterated that the suit was barred under the 1959 Act and the

undertaking dated 4th October 1962 was not acted upon during the

lifetime of Muthuthandapani Chettiar.

3 Hereinafter referred to as the ‘1959 Act’.

Civil Appeal Nos. 3964-3965 of 2009 Page 6 of 38

8. The appellant had, thereupon, preferred a second appeal (S.A. No.

1522/1993) before the High Court which has been dismissed by the

impugned judgment dated 30th June 2008.

9. The impugned common judgment, however, allowed the second

appeal (S.A. No. 829/2000) preferred by the respondent/Temple

which had arisen from a separate independent suit (O.S. No.

87/1990, renumbered as O.S. No. 56/1996) instituted by the

Temple on 11th June 1990 before the Subordinate Judge of

Nagapattinam seeking, inter alia, a declaration of existence of

specific endowment in respect of the suit jewellery in favour of the

deity, Sri Neelayadhakshi Amman, and for a decree of permanent

injunction restraining the appellant from interfering with the right of

the deity to take out the suit jewellery from the Kudavarai.

10. The trial court vide judgment dated 17th October 1996 decreed the

suit accepting the version of the respondent/Temple that the suit

jewellery was donated by the ancestors of Muthuthandapani

Chettiar since 1894. Specific reliance was placed on the Temple

Account Book (Exhibit A-1), which had recorded and given details

of the suit jewellery. Further, witnesses produced by the

respondent/Temple had deposed that the suit jewellery was

adorned by the Amman idol and the suit jewellery would be taken

Civil Appeal Nos. 3964-3965 of 2009 Page 7 of 38 out by Muthuthandapani Chettiar from the Kudavarai for this

purpose. It was observed that the undertaking dated 4th October

1962, which was marked as Exhibit B-1, was not acted upon by

Muthuthandapani Chettiar, as was recorded in the decision of the

trial court dated 26th November 1990 in the appellant’s suit. The trial

court held that the reliance placed by the appellant upon the

adoption deed (marked as Exhibit A-6), entered into after the death

of Muthuthandapani Chettiar, was of no avail as the suit jewellery

had been donated to the Temple and stored within the premises of

the Temple since 1894. The suit jewellery was not made for the

benefit of the family of Muthuthandapani Chettiar. The suit jewellery

was kept inside the vault of the respondent/Temple as it was

donated by the ancestors of Sri Muthuthandapani Chettiar for

decorating and use of the idol Amman. The trial court was also of

the view that the appellant had not been able to prove his adoption

by Muthuthandapani Chettiar and his wife, M. Thangammal, an

aspect which was not examined by the High Court in the second

appeal.

11. The trial court, while granting a decree of declaration, refused to

issue a decree for permanent injunction since that the Temple had

stated that two keys of the main door of the Kudavarai and the iron

Civil Appeal Nos. 3964-3965 of 2009 Page 8 of 38 safe were in the possession of Muthuthandapani Chettiar and the

evidence indicated the right of possession of Muthuthandapani

Chettiar to the extent of taking out and keeping back the suit

jewellery as a mark of honour. As such, the appellant had the right

of possession to give and take back the donated suit jewellery

during the Adipooram festival days. The appellant, it was observed,

would render full cooperation in opening the Kudavarai and giving

the suit jewellery on the festive occasion. Granting an injunction

would result in depriving the members of the family of

Muthuthandapani Chettiar from the honour of opening the doors of

Kudavarai with the keys in their possession and handing over the

suit jewellery for adorning the idol/ deity.

12. The appellant, however, succeeded in the first appeal (A.S. No.

6/1999) before the Additional Subordinate Judge of Nagapattinam

wherein the appellant court, vide judgment dated 5th August 1999,

held that the suit filed by the respondent/Temple for declaration was

barred under Order II Rule 2 of Code of Civil Procedure, 19084 as

the respondent had earlier filed a civil suit in 1981(O.S. No.

99/1981) with a prayer for appointment of a receiver to make an

inventory of the suit jewellery which was dismissed by the trial court

4 For short, the ‘Code’

Civil Appeal Nos. 3964-3965 of 2009 Page 9 of 38 on 6th September 1982. The first appellate court held that the

Temple had omitted to seek a declaration as to the ownership of

the suit jewellery and as such the Temple was barred from filing a

suit for declaration of the suit jewellery as a specific endowment. At

the same time, the first appellate court held that the suit was not

barred by limitation as the suit jewellery was in custody of the

respondent Temple being kept in the Kudavarai situated inside the

Temple. The two keys of the Kudavarai were also with the

respondent/Temple and, therefore, it was clear that the locks of the

Kudavarai could be jointly operated by the appellant and the

respondent/Temple, and the suit jewellery boxes could not be

opened without joint operation. The first appellate court examined

the question of ownership and affirmatively accepted the case of

the respondent that the suit jewellery was donated by the ancestors

of Muthuthandapani Chettiar and is an endowment vested in the

respondent/Temple. The suit jewellery was also recorded in the

register, Exhibit A-1, maintained by the respondent/Temple even in

the year 1963.

13. The cross-appeal (A.S. No. 40/1997) preferred by the respondent/

Temple against rejection of the prayer for grant of injunction was

also dismissed by the first appellate court.

Civil Appeal Nos. 3964-3965 of 2009 Page 10 of 38

14. Aggrieved, the respondent/Temple had preferred a second appeal

before the High Court, which was allowed by the impugned

judgment, which as noticed above, had also decided the second

appeal preferred by the appellant dismissing his suit for mandatory

injunction.

15. It is clear from the aforesaid discussion that, as far as endowment

of the suit jewellery is concerned, there are concurrent findings of

fact by the three courts in favour of the respondent/Temple and

against the appellant. As per the said findings, the suit jewellery, 26

in number, had been gifted by the ancestors of Muthuthandapani

Chettiar for the specific purpose of adorning the deity, Sri

Neelayadhakshi Amman, during the Adipooram festival. No doubt,

the keys of the Kudavarai were in the custody of Muthuthandapani

Chettiar and thereafter, his widow, M. Thangammal. However, this

was more out of deference and honour, as the ancestors of

Muthuthandapani Chettiar had donated the jewellery, and not on

account of personal ownership of Muthuthandapani Chettiar or his

ancestors. The administration of the Temple was originally vested

with Nagai District Devasthanam Committee. Pursuant to Order No.

G.O. 135 dated 16th January 1942, a revised scheme of Hindu

Religious and Charitable Endowment was implemented and the

respondent/Temple came under direct administration of the Hindu

Civil Appeal Nos. 3964-3965 of 2009 Page 11 of 38 Religious and Charitable Endowments under the Madras Hindu

Religious Endowments Act, 1926 enforced with effect from 19th

January 1927. Subsequently, on enforcement of the 1959 Act, the

management was taken over by the Executive Officer and Trustees

appointed under the 1959 Act. It is to be noted that two important

festivals are celebrated at the Temple, namely Adipooram and

Panchakrosam. Adipooram is a unique festival spread over ten

days celebrating the coming of age of the goddess. On the tenth

day, after sacred bath, the idol of goddess Sri Neelayadhakshi

Amman is taken in procession in a Temple car. During the

Adipooram festival, the goddess Sri Neelayadhakshi Amman is

adorned with the suit jewellery. The High Court rereferred to the

evidence on record, including testimony of the witnesses, who, it is

obvious, could not have deposed as to the donation of the ‘suit

jewellery’ which had taken place in or before 1894, but what was

seen and noticed by the witnesses during their lifetime. PW-3,

Abadhthothranam Chettiar5, the son of an erstwhile trustee of the

Temple, had testified that the ancestors of Muthuthandapani

Chettiar gave the suit jewellery to the Temple which was used

during the ten days of the Adipooram festival to adorn the idol/deity,

Sri Neelayadhakshi Amman, and could not be used by members of

5 ‘Abathaoranam Chettiar’ in the record of evidence

Civil Appeal Nos. 3964-3965 of 2009 Page 12 of 38 the family of Muthuthandapani Chettiar. The jewellery was never

taken out of the Temple and Muthuthandapani Chettiar had the

honour of taking and giving out the suit jewellery at the Adipooram

festival. Members of the family of Muthuthandapani Chettiar had

never claimed rights over the suit jewellery. PW-4, Sundarajan 6,

another erstwhile trustee of the Temple during the period 1972-

1977, had similarly deposed that the jewellery was only adorned by

the idol/ deity, Sri Neelayadhakshi Amman, and neither

Muthuthandapani Chettiar nor the members of his family claimed

any right over the suit jewellery. There was no custom to take the

suit jewellery by the family of Muthuthandapani Chettiar outside the

Temple. PW-5, Kalimuthu7, who had been closely associated with

Muthuthandapani Chettiar, had affirmatively stated that the suit

jewellery was gifted by ancestors of Muthuthandapani Chettiar to

be adorned by the idol/ deity during the Adipooram festival. On this

festive occasion, Muthuthandapani Chettiar would be happy to

open the Kudavarai and take out the suit jewellery for being

adorned by the deity. In doing so, Muthuthandapani Chettiar would

follow the practice of his ancestors and had never claimed any right

over the suit jewellery.

6 ‘Soundarajan’ in the record of evidence 7 ‘Marimuthu’ in the record of evidence

Civil Appeal Nos. 3964-3965 of 2009 Page 13 of 38

16. It is interesting to note that the appellant does not dispute that the

Kudavarai is located in the Temple. In his testimony in Suit No.

156/86, the appellant Sundaram as PW-1 had deposed that

Muthuthandapani Chettiar had plenty of ornaments which belonged

to the family, and the claim made is that Kudavarai in the Temple,

was allotted to them to keep the ornaments for safety. The stand is

ex-facie implausible and unbelievable, given the fact that the

Temple is a public temple. Kudavarai is not a public vault where

people keep their personal jewellery, and the suit jewellery kept in

it since 1894 was always and only used for adorning the Temple

deity for ten days at the Adipooram festival.

17. Referring to the documents on record, specific reference has been

made by the High Court to Exhibit A-1, the register containing

details and particulars of the suit jewellery, wherein the suit

jewellery (26 in number) were shown as ‘Adipooram Ambal Thiru

Abaranam’. In the remarks column it was noted that the jewellery

“are in the custody of Mr. S.M.T.M. Muthuthandapani Chettiar of

Nagapattinam”. Other jewellery items were shown in different

headings of ‘Temple Series’. The impugned judgment observes that

the 26 items of suit jewellery being identified as ‘Adipooram Ambal

Thiru Abaranam’, is a strong piece of evidence which supports the

respondent’s case. Exhibit A-1 was a register maintained in regular

Civil Appeal Nos. 3964-3965 of 2009 Page 14 of 38 course of administration of Temple containing details and

particulars of jewels of the Temple. Even in 1963, the suit jewellery

had been shown as ‘Adipooram Ambal Thiru Abaranam’.

Muthuthandapani Chettiar died on 21st August 1969 and had never

claimed any right on the suit jewellery during his lifetime. Reference

was also made to Exhibit A-3 which indicated that the respondent/

Temple was under the administration of Devasthanam Committee

of Nagapattinam District. Thereafter, in terms of the revised scheme

dated 16th January 1942, the Temple had come under the State

administration, which had continued under the 1959 Act with

appointment of Executive Officer and Trustees. The High Court

referred to Section 29(d) of the 1959 Act in relation to preparation

of register of every religious institution for “jewels, gold, silver,

precious stones, vessels and utensils and other movables

belonging to the institution, with their weights and estimated value”

and placed reliance on illustration (e) to Section 114 of the Indian

Evidence Act, 1872 concerning the presumption that an official act

has been regularly performed, to hold that the Exhibit A-1 is

unimpeachable evidence showing that the suit jewellery are

‘Adipooram Ambal Thiru Abaranam’. The High Court also made

reference to Exhibit B-1, the family settlement dated 26th October

1969, which was entered into, after the death of Muthuthandapani

Civil Appeal Nos. 3964-3965 of 2009 Page 15 of 38 Chettiar, by the wife of Muthuthandapani Chettiar, M. Thangammal,

and his brother’s widow, which referred to the large number of

family properties dedicated for endowment to various temples by

the family of Muthuthandapani Chettiar. Exhibit B-1 records that

Muthuthandapani Chettiar and his ancestors were liberal in creating

endowments and dedicating family properties to temples and

performance of other dharmams. Exhibit B-1 referred to the

‘Adipooram Ambal Thiru Abaranam’ and the fact that after the death

of Muthuthandapani Chettiar, his wife, M. Thangammal, “had the

keys of the Kudavarai and she will hand over the jewellery during

the festival sessions or whenever required.”

18. We are in agreement with the said findings recorded by the High

Court. The findings are supported by the legal position on the effect

of endowment, which is well settled and we would like to refer to

only a few decisions.

19. In Deoki Nandan v. Murlidhar and Others,8 a bench of five Judges

of this Court has held that:

“the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the

8 AIR 1957 SC 133

Civil Appeal Nos. 3964-3965 of 2009 Page 16 of 38 intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.

xx xx xx

Endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies, provided the settlor has clearly and unambiguously expressed his intention in that behalf.

Where it is proved that ceremonies were performed, that would be valuable evidence of endowment, but absence of such proof would not be conclusive against it.”

20. Following the above ratio in The Commissioner for Hindu

Religious and Charitable Endowments, Mysore v. Sri

Ratnavarma Heggade (Deceased) by his L. Rs.,9 this Court has

observed that:

“Neither a document nor express words are essential for a dedication for a religious or public purpose in our country. Such dedications may be implied from user permitted for public and religious purposes for sufficient length of time. The conduct of those whose property is presumed to be dedicated for a religious or public purpose and other circumstances are taken into account in arriving at the inference of such a dedication. Although religious ceremonies of Sankalpa and

9 (1977) 1 SCC 525

Civil Appeal Nos. 3964-3965 of 2009 Page 17 of 38 Samarpanam are relevant for proving a dedication, yet, they are not indispensable”

Thus, extinction of private character of a property can be

inferred from the circumstances and facts on record, including

sufficient length of time, which shows user permitted for religious or

public purposes.

21. Earlier, in M.R. Goda Rao Sahib v. State of Madras,10 this Court

has observed that in an absolute dedication, the property is given

out and out to an idol or religious or charitable institution and the

donor divests himself of all beneficial interests in the property

comprised in the endowment. Where the dedication is partial, a

charge is created on the property or there is a trust to receive and

apply a portion of the income for the religious or charitable

purposes. In the latter case, the property descends and is alienable

and partible in the ordinary way, but the only reference is that it

passes with a charge upon it. The Court had relied on the provisions

of the Madras Hindu Religious and Charitable Endowments

Act,1951 and in particular to Section 3211 thereof, to observe that:

10 (1966) 1 SCR 643 11 Section 38(1) of the 1959 Act reads- “Section 38 - Enforcement of service or charity in certain cases

-(1) Where a specific endowment attached to a math or temple consists merely of a charge on property and there is failure in the due performance of the service or charity, the trustee of the math or temple concerned may require the person in possession of the property on which the endowment is a charge, to pay the expenses incurred or likely to be incurred in causing the service or charity to be performed otherwise. In default of such person making payment as required, the Commissioner in the case of a specific endowment attached to a math, and the Joint Commissioner or the Deputy Commissioner, as the case may be, in the case of a specific endowment attached to a temple, may, on the application of

Civil Appeal Nos. 3964-3965 of 2009 Page 18 of 38 “There is no dispute that in order that there may be an endowment within the meaning of the Act, the settlor must divest himself of the property endowed. To create an endowment he must give it and if he has given it, he of course has not retained it; he has then divested himself of it. ….By the instrument the settlors certainly divested themselves of the right to receive a certain part of the income derived from the properties in question.

They deprived themselves of the right to deal with the properties free of charge as absolute owners which they previously were. The instrument was a binding instrument. This indeed is not in dispute. The rights created by it were, therefore, enforceable in law. The charities could compel the payment to them of the amount provided in Schedule B, and, if necessary for that purpose, enforce the charge. This, of course, could not be if the proprietors had retained the right to the amount or remained full owners of the property as before the creation of the charge….By providing that their liability to pay the amount would be a charge on the properties, the settlors emphasised that they were divesting themselves of the right to the income and the right to deal with the property as if it was unencumbered. By creating the charge they provided a security for the due performance by them of the liability which they undertook. Further Section 32 of the Act provides that where a specific endowment to a temple consists merely of a charge on property, the trustees of the temple might require the person in possession of the properties charged to pay the expenses in respect of which the charge was created. This section undoubtedly shows that the Act contemplates a charge as an endowment.”

Interpreting the said section, this Court held that specific

endowment attached to a math or a temple may consist merely of

a charge on the property. Therefore, in order to constitute specific

the trustee and after giving the person in possession, a reasonable opportunity of stating his objections in regard thereto, by order determine the amount payable to the trustee.”

Civil Appeal Nos. 3964-3965 of 2009 Page 19 of 38 endowment it is not necessary that there must be transfer of title or

divestment of the title to the property.

22. For the sake of completeness, we must record that under the 1926

Act, the expression ‘religious endowment’ or ‘endowment’ was

defined vide sub-section (11) to Section 9 to mean

“all property belonging to, or given or endowed for the support of, maths or temples or for the performance of any service or charity connected therewith and includes the premises of maths or temples but does not include gifts of property made as personal gifts or offerings to the head of a math or to the archaka or other employee of a temple”.

The 1959 Act, on the other hand, defines ‘religious

endowment’ or ‘endowment’ in sub-section (17) to Section 6 as

under:

““Religious endowment” or “endowment” means all property belonging to or given or endowed for the support of maths or temples, or given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity; and includes the institution concerned and also the premises thereof, but does not include gifts of property made as personal gifts to the archaka, service holder or other employee of a religious institution Explanation.— (1) Any inam granted to an archaka, service holder or other employee of a religious institution for the performance of any service or charity in or connected with a religious institution shall not be deemed to be a personal gift to the archaka, service holder or employee but shall be deemed to be a religious endowment.

Explanation.— (2) All property which belonged to, or was given or endowed for the support of a

Civil Appeal Nos. 3964-3965 of 2009 Page 20 of 38 religious institution, or which was given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity shall be deemed to be a “religious endowment” or endowment” within the meaning of this definition, notwithstanding that, before or after the date of the commencement of this Act, the religious institution has ceased to exist or ceased to be used as a place of religious worship or instruction or the service or charity has ceased to be performed:

Provided that this Explanation shall not be deemed to apply in respect of any property which vested in any person before the 30th September 1951, by the operation of the law of limitation;”

Sub-section (19) to Section 6 defines ‘specific endowment’

reads as under:

““specific endowment” means any property or money endowed for the performance of any specific service or charity in a math or temple or for the performance of any other religious charity, but does not include an inam of the nature described in Explanation (1) to clause (17); Explanation. — (1) Two or more endowments of the nature specified in this clause, the administration of which is vested in a common trustee, or which are managed under a common scheme settled or deemed to have been settled under this Act, shall be construed as a single specific endowment for the purposes of this Act ;

Explanation.— (2) Where a specific endowment attached to a math or temple is situated partly within the State and partly outside the State, control shall be exercised in accordance with the provisions of this Act over the part of the specific endowment situated within the State;”

Civil Appeal Nos. 3964-3965 of 2009 Page 21 of 38 In the context of the present case and the facts recorded above, it

is clear that the suit jewellery was a ‘specific endowment’ for the

performance of the specific service of adorning the deity, Sri

Neelayadhakshi Amman, to be taken out in the Temple car and

ratham in a grand procession during the Adipooram festival.

Further, as explained below, it was a charity in favour of the Temple

and was for performance of a religious charity. The involvement of

the family of the appellant was limited and restricted to retaining the

keys of the Kudavarai and the iron safe which were to be opened

at the time of the festival of Adipooram and the suit jewellery was

to be taken out for the specific purpose of adorning the deity, Sri

Neelayadhakshi Amman.

23. Lastly, we would refer to a recent judgment of this Court in Idol of

Sri Renganathaswamy represented by its Executive Officer,

Joint Commissioner v. P.K. Thoppulan Chettiar, Ramanuja

Koodam Anandhana Trust, represented by its Managing

Trustee and Others12 which draws a distinction between a

‘religious charity’ as defined in sub-section (16) to Section 6 from a

charity associated with a finite group of identifiable persons, which

is a charity of a private character. It was observed that:

12 (2020) 17 SCC 96

Civil Appeal Nos. 3964-3965 of 2009 Page 22 of 38 “for a charity to constitute a “religious charity”, there is no requirement for the public charity to be connected with a particular temple or a math. In terms of the statutory definition, for a charity to constitute a “religious charity” under the 1959 Act, two conditions must be met. First, it must be a “public charity” and second, it must be “associated with” a Hindu festival or observance of a religious character. If these two conditions are satisfied, a charity is a “religious charity (emphasis added)

xx xx xx

Where the beneficiaries of a trust or charity are limited to a finite group of identifiable individuals, the trust or charity is of a private character. However, where the beneficiaries are either the public at large or an amorphous and fluctuating body of persons incapable of being specifically identifiable, the trust or charity is of a public character.”

24. This decision has referred to an earlier decision in M.J.

Thulasiraman and Another v. Commissioner, Hindu Religious

and Charitable Endowment Administration and Another,13

which had examined and elucidated on the words ‘endow’ and

‘endowment’ to state that they relate to idea of giving, bequeathing

or dedicating something, whether property or otherwise, for some

purpose. The purpose should be with respect to religion or charity.

In our opinion, the said tests are satisfied in the present case and

the specific endowment of the suit jewellery as religious charity is

established beyond doubt.

13 (2019) 8 SCC 689

Civil Appeal Nos. 3964-3965 of 2009 Page 23 of 38

25. Therefore, in view of the judgments quoted above and the aforesaid

statutory provisions, it must be held that the case of the appellant

that there was no endowment or specific endowment must fail and

has no legs to stand on. The dedication of the suit jewellery does

not require an express dedication or document, and can be inferred

from the circumstances, especially the uninterrupted and long

possession of the suit jewellery by the respondent/Temple. The

private character of the jewels had extinguished long back and the

appellant has no basis to claim that the suit jewellery was inherited

by him from his adoptive parents. The endowment is clearly public

in nature and for the purposes of performing religious ceremonies.

As confirmed by three courts, with which we are in agreement, the

suit jewellery was dedicated for a specific purpose and can only be

used during the performance of the religious ceremony during the

Adipooram festival.

26. The claim of the appellant based on the principle of res judicata and

constructive res judicata/ Order II Rule 2 of the Code14 as the

respondent/ Temple has earlier filed a suit for appointment of a

14 “Order II - Suit to include the whole claim.—… (2) Relinquishment of part of claim.—Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.”

Civil Appeal Nos. 3964-3965 of 2009 Page 24 of 38 receiver for taking inventory of the suit jewellery is also without

merit.

27. The respondent had filed a civil suit in November 1981 (O.S. No.

99/1981) before the Subordinate Judge, Nagapattinam against the

present appellant, R. M. Sundaram, and his mother, M.

Thangammal. It was stated that there is a separate room in the

Temple called the Kudavarai which has an iron gate. Inside the

Kudavarai, there are two steel almirahs and an iron safe. The two

steel almirahs contain many items of gold jewellery belonging

exclusively to the respondent/Temple and the iron safe in the

Kudavarai had 26 items of jewellery, namely the suit jewellery,

which were donated to the respondent/Temple about 80 years back

by the ancestors of Muthuthandapani Chettiar. It was further stated

that the keys of the iron safe were with the family of

Muthuthandapani Chettiar while the keys of the two almirahs were

with the Joint Sub-Registrar, Nagapattinam, in the capacity as

Double Lock Officer. One set of the keys of the outer door was with

the Executive Officer and the other set was with the family of

Muthuthandapani Chettiar. The Kudavarai cannot be accessed

unless the two sets of keys were jointly operated to open the main

door. It was stated that large items of jewellery were missing from

Civil Appeal Nos. 3964-3965 of 2009 Page 25 of 38 the Temple premises for some time and the then Executive Officer

of the respondent/Temple had died under suspicious

circumstances. Some jewellery was found to be missing from the

Temple which was being investigated by the police, and shortage

of jewellery had also been discovered in other temples. In these

circumstances and on the instructions of the State Government, the

Commissioner, under the 1959 Act, had directed all temples to

verify the jewellery as per the original appraisement register. The

family of Muthuthandapani Chettiar had been requested and was

served with the notice in this regard, but had expressed their

inability to comply with the request for inspection.

28. In the written statement filed by the appellant, they had accepted

use of the suit jewellery on the festive occasions for adorning the

presiding deity but had pleaded that there was no dedication or

charity, absolute or conditional. It was submitted that the suit

jewellery was used by the family of Muthuthandapani Chettiar. The

suit jewellery was licensed to be kept in the Kudavarai under the

control of the respondent /Temple to avoid loss on account of

natural calamity or cyclone and tidal waves. The suit jewellery was

kept for safe custody with the right to revoke the license. The

appellant, therefore, contended that he was entitled to remove the

Civil Appeal Nos. 3964-3965 of 2009 Page 26 of 38 suit jewellery to a place of his choice and even to stop the

respondent/Temple from using the suit jewellery during Adipooram

festival.

29. As is evident, the prior suit of 1981 arose from a very peculiar set

of facts and circumstances and the cause of action as per the plaint

are completely unrelated to the suits being considered in the

present appeals. In our opinion, the High Court has rightly rejected

the plea of res judicata and constructive res judicata / Order II Rule

2 of the Code.

30. This Court in Sheodan Singh v. Daryao Kunwar (SMT)15 has laid

down that the following conditions must be satisfied to constitute a

plea of res judicata:

“(i) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit;

(ii) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim;

(iii) The parties must have litigated under the same title in the former suit;

(iv) The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and

(v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the first suit. Further Explanation

15 AIR 1966 SC 1332

Civil Appeal Nos. 3964-3965 of 2009 Page 27 of 38 1 shows that it is not the date on which the suit is filed that matters but the date on which the suit is decided, so that even if a suit was filed later, it will be a former suit if it has been decided earlier. In order therefore that the decision in the earlier two appeals dismissed by the High Court operates as res judicata it will have to be seen whether all the five conditions mentioned above have been satisfied.”

31. General principle of res judicata under Section 11 of the Code

contains rules of conclusiveness of judgment, but for res judicata to

apply, the matter directly and substantially in issue in the

subsequent suit must be the same matter which was directly and

substantially in issue in the former suit. Further, the suit should have

been decided on merits and the decision should have attained

finality. Where the former suit is dismissed by the trial court for want

of jurisdiction, or for default of the plaintiff’s appearance, or on the

ground of non-joinder or mis-joinder of parties or multifariousness,

or on the ground that the suit was badly framed, or on the ground

of a technical mistake, or for failure on the part of the plaintiff to

produce probate or letter of administration or succession certificate

when the same is required by law to entitle the plaintiff to a decree,

or for failure to furnish security for costs, or on the ground of

improper valuation, or for failure to pay additional court fee on a

plaint which was undervalued, or for want of cause of action, or on

the ground that it is premature and the dismissal is confirmed in

Civil Appeal Nos. 3964-3965 of 2009 Page 28 of 38 appeal (if any), the decision, not being on the merits, would not be

res judicata in a subsequent suit.16 The reason is that the first suit is

not decided on merits.

32. In the present case, the suit filed in 1981 for appointment of the

receiver for preparing an inventory of the suit jewellery was not

decided on merits but was dismissed on the ground that the

respondent had prayed for mandatory injunction and had not made

a prayer for declaration of title. Thus, the suit was dismissed for

technical reasons, which decision is not an adjudication on merits

of the dispute that would operate as res judicata on the merits of

the matter. Further, to succeed and establish a prayer for res

judicata, the party taking the said prayer must place on record a

copy of the pleadings and the judgments passed, including the

appellate judgment which has attained finality. In the present case,

the appellant did not place on record a copy of the appellate

judgment and it is accepted that the second appeal filed by the

respondent was dismissed, giving liberty to the respondent to file a

fresh suit with a prayer of declaration of title/endowment in respect

of the suit jewellery. The liberty granted was not challenged by the

appellant. The right to file a fresh suit to the Temple, therefore,

16 Sheodan Singh v. Daryao Kunwar (SMT) AIR 1966 SC 1332

Civil Appeal Nos. 3964-3965 of 2009 Page 29 of 38 should not be denied. The bar of constructive res judicata/ Order II

Rule 2 of the Code is not attracted.

33. The plea of constructive res judicata/Order II Rule 2 of the Code

also fails as the cause of action in the first suit filed in 1981 was

limited and predicated on account of the failure of the appellant to

open the locks of the safe and the main door of the Kudavarai, the

keys of which were available with the appellant and required joint

operation. Here again, the party claiming and raising the plea of

constructive res judicata/Order II Rule 2 of the Code must place on

record in evidence the pleadings of the previous suit and establish

the identity of the cause of actions, which cannot be established in

the absence of record of judgment and decree which is pleaded to

operate as estoppel. In this regard, we would like to refer to

judgment of this Court in Gurbux Singh v. Bhooralal17 wherein it

has been observed:

“In order that a plea of a Bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out; (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and

17 AIR 1964 SC 1810

Civil Appeal Nos. 3964-3965 of 2009 Page 30 of 38 to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits.

Just as in the case of a plea of res judicata which cannot be established in the absence on the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under Order 2 Rule 2 of the Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed.”

34. Reiterating the above principle, this Court in Virgo Industries

(Eng.) Private Limited v. Venturetech Solutions Private

Limited18 observed that:

“The object behind the enactment of Order 2 Rules 2(2) and (3) CPC is not far to seek. The Rule engrafts a laudable principle that discourages/prohibits vexing the defendant again and again by multiple suits except in a

18 (2013) 1 SCC 625

Civil Appeal Nos. 3964-3965 of 2009 Page 31 of 38 situation where one of the several reliefs, though available to a plaintiff, may not have been claimed for a good reason. A later suit for such relief is contemplated only with the leave of the court which leave, naturally, will be granted upon due satisfaction and for good and sufficient reasons.

xx xx xx

The cardinal requirement for application of the provisions contained in Order 2 Rules 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit.”

35. There is some merit in the contention of the appellant that the

impugned judgment is contradictory as it has affirmed the decree of

the trial court, which was upheld by the first appellate court,

accepting the plea of the respondent that the suit for mandatory

injunction filed by the appellant is not maintainable in view of the

bar under the provisions of the 1959 Act. Section 63 of the 1959 Act

states that the Joint Commissioner or the Deputy Commissioner

has the power to enquire into and decide the disputes and matters

concerning “whether any property or money is a religious

endowment” and “whether any property or money is a specific

endowment”. Any decision of the Joint or Deputy Commissioner in

terms of Section 63 of the 1959 Act can thereafter be challenged in

appeal before the Commissioner under Section 69 of the 1959 Act.

Pursuant to Section 70 of the 1959 Act, a party aggrieved by an

order passed by the Commissioner in respect of any matter

Civil Appeal Nos. 3964-3965 of 2009 Page 32 of 38 specified under Section 63 (including determination of a religious or

specific endowment) can be challenged before the court within 90

days of the receipt of the order. Further, a party aggrieved by a

decree of the court, under Section 70, can within 90 days from the

date of decree, appeal to the High Court. In the light of the

aforesaid, it can be urged that the suit filed by the respondent would

not be maintainable. The appellant did not raise this plea, possibly

because he had himself filed a civil suit. In fact, this argument would

also recoil on the appellant insofar as he has raised the plea of res

judicata and constructive res judicata/ Order II Rule 2 of the Code,

for the said pleas would not be available in case the civil court had

lacked subject matter jurisdiction. We would have normally allowed

the appeal preferred by the appellant in the present case and

relegated the appellant and the Temple to take recourse to the

remedy available under Section 63 of the 1959 Act. However, we

do not think it will be appropriate and proper to permit the appellant

to do so in the present case as it would be a futile and useless

exercise. It is crystal clear that there was a specific endowment of

the suit jewellery way back in 1894 and the challenge made by the

appellant has no legs to stand on and is totally devoid of merit. It is

difficult to reconcile the testimony of the appellant, in the suit filed

by him, that the suit jewellery was kept in the Kudavarai of the

Civil Appeal Nos. 3964-3965 of 2009 Page 33 of 38 respondent/Temple only for the purposes of safe-keeping, with the

fact that the suit jewellery was only used for the purposes of

adorning the idol/ deity during the Adipooram festival. The appellant

eventually backtracked from this position and has testified, in the

later suit filed by the respondent/Temple, to the effect that he is

unaware on “what basis, the 26 items of suit ornaments (suit

jewellery) for what purpose are kept in the kudavarai…I don’t

directly know for what reason the suit jewels were kept in the room

in the plaintiff temple”. In these circumstances, we do not want

another round of litigation which would serve no purpose. We also

have no hesitation in holding that the findings recorded above

would operate as res judicata even if the appellant is to initiate

proceedings under the 1959 Act.

36. We have noted the decree passed by the trial court in the suit filed

by the respondent whereby the relief of injunction was declined,

albeit observing that the appellant must open the locks and make

the suit jewellery available during the festival season. The cross

appeal filed by the respondent/Temple against rejection of its

prayer of injunction was dismissed by the first appellate court

agreeing with the observations made by the trial court regarding the

endowment of the suit jewellery. The High Court, in the impugned

order, has modified the aforesaid observations of the trial court and

Civil Appeal Nos. 3964-3965 of 2009 Page 34 of 38 has also directed the appellant to hand over the keys to the Joint

Commissioner, Tanjore who would perform the necessary

responsibility of handing over the jewels during the Adipooram

festival. We feel this decree or direction is beyond what was sought

by the respondent/ Temple in the plaint. This court in Bachhaj

Nahar v. Nilima Mandal and Another19 has clearly stipulated the

limits of a court to grant reliefs beyond the prayer and pleadings of

the parties and observed that:

“It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non- joinder of causes of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of rupees one lakh, the court cannot grant a decree for rupees ten lakhs. In a suit for recovery possession of property ‘A’, court cannot grant possession of property ‘B’. In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc.”

37. In fact, to be fair to the High Court, the impugned judgment also

records that the decree for permanent injunction as prayed for is

granted to the respondent/Temple. Accordingly, we clarify and pass

19 (2008) 17 SCC 491

Civil Appeal Nos. 3964-3965 of 2009 Page 35 of 38 a decree restraining the appellant from interfering in any manner

with the right of the Temple authorities to take out the suit jewellery

from the Kudavarai whenever the occasion demands. In other

words, the appellant would cooperate with the request(s) made by

the Executive Officer and Trustees of the respondent/Temple to

open the Kudavarai doors and take out the suit jewellery from the

iron-safe whenever required.

38. Accordingly, the final order and directions issued by the trial court

in its decision dated 17th October 1996 in the respondent’s suit

(Original Suit No.56/96) and the first appellate court rejecting the

Temple’s prayer for injunction is set aside, and a decree of

injunction is passed in the aforesaid terms. The respondent/Temple

would be entitled to file an application for execution of the decree

of injunction in case of non-compliance and violation of the decree.

Further, and in case the appellant fails to honour the commitment

made and followed, that is, to open the doors of the Kudavarai and

the safe to take out the suit jewellery whenever required by the

Temple, it will be open to the respondent to take steps and initiate

proceedings under the 1959 Act or by way of a civil suit as permitted

in law, in which event the authorities/court would consider passing

an order directing the appellant to hand over the keys of the door of

the Kudavarai and the iron safe; As any failure to abide by the

Civil Appeal Nos. 3964-3965 of 2009 Page 36 of 38 convention and ‘the charge’, which forms the basis of this order,

would be a fresh or recurring cause of action, and the plea of

limitation or Order II Rule 2 of the Code would not apply.

39. It is to be noted in the impugned judgment that one of the items in

the suit jewellery (item no. 14) is missing, and a review of the

evidence on record reflects that it is with the appellant. The

appellant must surrender and give physical possession of the said

item to the respondent/ Temple within 30 days from the date of

pronouncement of this judgment. In case, the appellant does not

give possession of the said item, it would be open for the

respondent/ Temple to initiate civil as well as criminal proceedings

in accordance with law. In case any such proceeding is initiated,

the same would be examined on merits, though the findings

recorded herein would be binding. The appellant would have the

right to raise all defences as are available with him under law.

40. Accordingly, we dismiss the appeals and uphold the judgment of

the High Court affirming the decree of declaration passed by trial

court in Suit No. 56/96, which was also upheld by the first appellate

court, and thereby confirm existence of specific endowment known

as Adipooram Thiruvabaranam comprising of the 26 items of

jewellery mentioned in the plaint, as endowed in favour of Sri

Civil Appeal Nos. 3964-3965 of 2009 Page 37 of 38 Neelayadhakshi Amman, the presiding deity of the Temple. The

decree of injunction as passed by the High Court, it is clarified, is in

the terms of the prayer made in the suit (OS No.56/96) and also is

in terms of this judgment. There would be no order as to costs.

......................................J. (AJAY RASTOGI)

......................................J. (SANJIV KHANNA) NEW DELHI;

JULY 11, 2022.

Civil Appeal Nos. 3964-3965 of 2009 Page 38 of 38