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Soundharathammal Vs. the Tiruchirapalli Mavattam Mahasuruli Alaya Bakthargal Madya Sangam by Its President Balamuthu Servai, Vice-president Mahayogi Thangam Pillai and Secretary Shanmuga Navalangiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1977)1MLJ125
AppellantSoundharathammal
RespondentThe Tiruchirapalli Mavattam Mahasuruli Alaya Bakthargal Madya Sangam by Its President Balamuthu Serv
Cases ReferredPonniah Nadar v. Chellian Nadar
Excerpt:
- - a hundial has been installed in the precincts of the temple and the public who come to worship in the temple as of right deposit their contributions therein and those offerings are made use of to conduct the gurupuja as well as the nithya puja and festivals. during the festival there would be manjal-neerattu, religious and cultural discourses, karagam dance and other festival plays as well as nadaswaram and other music performances. that suit ended in failure and the present suit was nothing but a covert move by those persons to once again lay hands on the samadhi and its properties. 7 of 1955 was sought to be canvassed in first appeal and second appeal, but the attempt was not successful and the judgments of the appellate courts were marked as exhibits b-3 and b-4. exhibit b-5, a.....s. natarajan, j.1. the defendant in o.s. no. 115 of 1972 on the file of the court of the district munsif of pudukottai has preferred this second appeal against the reversing judgment of the district judge of pudukottai in a.s. no. 253 of 1974. the suit relates to the performance of the annual gurupuja festival and customary, functions of, sri suruli andavar in the village of vadugapatti.2. the case of the respondent sangham, who is the plaintiff, was that one suruli andavar swamigal, who was known in his purvasramam as palaniandia pillai was a noble and eminent saint and had a lot of devotees and worshippers before he attained samadhi. suruli andavar swamigal was a bachelor and after he attained mukthi, his followers and worshippers built a samadhi for him at vadugapatti in kulathur taluk.....
Judgment:

S. Natarajan, J.

1. The defendant in O.S. No. 115 of 1972 on the file of the Court of the District Munsif of Pudukottai has preferred this second appeal against the reversing judgment of the District Judge of Pudukottai in A.S. No. 253 of 1974. The suit relates to the performance of the annual Gurupuja festival and customary, functions of, Sri Suruli Andavar in the village of Vadugapatti.

2. The case of the respondent Sangham, who is the plaintiff, was that one Suruli Andavar Swamigal, who was known in his purvasramam as Palaniandia Pillai was a noble and eminent saint and had a lot of devotees and worshippers before he attained samadhi. Suruli Andavar Swamigal was a bachelor and after he attained mukthi, his followers and worshippers built a samadhi for him at Vadugapatti in Kulathur taluk about thirty-five years ago. A lingam was installed over the samadhi. On one side of the samadhi a Vinayakar temple has been built and on the other side the sacred Vel of Lord Subramania has been installed. Ever since the construction of the samadhi, the Gurupuja for Sri Suruli Andavar was being performed on a grand scale by a large Section of the public who constituted his devotees and worshippers. It was the respondent Sangham which had been organising and celebrating the Gurupuja for the last thirty-five years, the annual Gurupuja being done every year on the day of his attaining mukthi, viz., Masi Visakham. Besides, monthly Gurupujas were also being done. A hundial has been installed in the precincts of the temple and the public who come to worship in the temple as of right deposit their contributions therein and those offerings are made use of to conduct the Gurupuja as well as the nithya puja and festivals. During the festival there would be manjal-neerattu, religious and cultural discourses, karagam dance and other festival plays as well as nadaswaram and other music performances. While this was the settled state of affairs, during the year 1971, an attempt was made by the appellant(defendant) to disturb and obstruct the celebration of the festival by the respondent Sangham and the members of the public. The nefarious attempt of the appellant was successfully contained by the respondent seeking the aid of the police and the revenue authorities and the respondent was able to perform the Gurupuja and the attendant festivals peacefully. For all the collections realised and expenses incurred by the respondent for the performance of Gurupuja and the four day festival at that time, the respondent has been maintaining detailed accounts. Notwithstanding these things , the appellant and her son, once again, started resorting to their obstructive tactics when the respondent was planning to conduct the Gurupuja festival during the month of March, 1972. To put an end to the periodical interference by the appellant and to ensure the smooth conduct of the festival, the respondent came forward with the suit, O.S. No. 115 of 1972, and prayed therein for a declaration of its right to perform the annual Gurupuja festival of Sri Suruli Andavar and for a permanent injunction, by way of consequential relief, to restrain the appellant and her men, agents etc., from, in any way, interfering with the celebration of the annual festival and customary functions.

3. The appellant, who claims to be the daughter of Sri Suruli Andavar through his wife, one Muniammal, resisted the suit and contended that her mother and she had been conducting the Gurupuja at the samadhi all along and after the death of her mother, she was alone arranging for the performance of the annual Gurupuja. It was her further case that the properties of her father. Palaniandia Pillai, who later became the Swamiji, including the samadhi and its adjuncts, had Been inherited by her as the sole surviving member of the family and therefore, she alone was entitled to manage the affairs of the samadhi and conduct the Gurupuja. The claim of the respondent that it had been conducting the Gurupuja for over thirty-five years was categorically denied by the appellant. Even so, she refused the claim that the members of the public were contributing for, and were participating in, the conduct of the Gurupuja. On the other hand, she took the specific stand that the Gurupuja could be done only by the heirs of the Swamiji, and not by a third party or any member of the public. The appellant further stated that the suit by the respondent was a motivated one and her own sister's husband, one Rangaswami Pillai and a third party by name Balamuthu Servai who styled himself as the President of the respondent Sangham, were at the bottom of the mischief and their intention was nothing more than to snatch away from her the right of management of the samadhi and the control over the properties left behind by Sri Suruli Andavar. On a former occasion, Rangaswami Pillai and one Narayanaswami Naidu had filed a similar suit, O.S. No. 7 of 1955 on the file of the District Munsif's Court, Pudukkottai and claimed to be the trustees of the samadhi. That suit ended in failure and the present suit was nothing but a covert move by those persons to once again lay hands on the samadhi and its properties. Lastly, the appellant stated that, in the Gurupujas arranged by her, she had always permitted the members of the public to come and pay homage at the samadhi of her father, but such permission ought not to be construed to mean that the members of the public were entitled to offer worship at the samadhi as of right.

4. The respondent filed a reply statement and it was contended therein that even the properties left by Sri Suruli Andavar, such as houses and lands, were acquired only from out of the kanikkais and offerings of his disciples and followers and after his demise his samadhi was constructed on a poromboke land with funds donated by his followers. The respondent further contended that the samadhi had evolved into a temple inasmuch as a Sivalingam had been installed over the samadhi and a Vinayakar temple built on one side and the Vel of Lord Muruga consecrated on the other side.

5. In the trial of the suit, P.W.1, a. former President of the respondent Sangham, P.W.4, the present President and three members viz., P.Ws. 2, 3 and 5, gave evidence to the effect that for the last about thirty-five years it was the respondent Sangham which had been conducting-the Gurupuja and other festivals at the samadhi. They also gave evidence relating to the construction of the Vinayakar temple and the consecration of a Vel on either side of the samadhi and the various functions that were arranged in the four day festival at the time of Gurupuja celebrations. Certain pamphlets and accounts (Exhibits A-1 to A-17) relating to the collections made and expenses incurred for the performance of the Gurupuja festival and an account book (Exhibit A-19) were exhibited to contend that it was the Sangham that had been arranging for the celebration of Gurupuja every year. Likewise, receipts obtained for the purchase of various articles in connection with the puja, viz., Exhibits A-20 to A-39, receipts for payment of electricity charges for the lights put up during the festival, viz., Exhibits A-40 to A-62, receipts for printing the invitations and pamphlets etc., for the festival, viz., Exhibits A-63, A-64, A-77 and A-78, a pamphlet, Exhibit A-55, and printed invitations, Exhibits A-79 to A-87, were also projected to contend that it was not the appellant but the respondent Sangham which had been doing the Gurupuja all these years. Besides these documents, the registration certificate of the respondent Sangham, its minutes book, receipt book etc., were also filed as exhibits in the case. On her side the appellant examined her husband's brother's son, as D.W.1 to speak about the Gurupuja festival being arranged by or at her instance. A delivery receipt in E.P. No. 180 of 1950 in O.S. No. 9 of 1949, i.e., Exhibit B-1 was marked by the appellant to show that the samadhi was one of the items delivered to her mother Muniammal as per the decree of Court. A copy of the judgment in the earlier suit, O.S. No. 7 of 1975, instituted by Narayanaswami Naidu and Rangaswami Pillai against Muniammal was marked as Exhibit B-2 and the decision therein that the samadhi was the private property of Muniammal was heavily relied on to contend that the samadhi was neither a temple nor a place of public religious worship. The judgment in O.S. No. 7 of 1955 was sought to be canvassed in first appeal and second appeal, but the attempt was not successful and the judgments of the appellate Courts were marked as Exhibits B-3 and B-4. Exhibit B-5, a release deed by Muniammal in favour of the appellant was filed to show that the appellant bad become solely entitled to manage the affairs of the samadhi. Certain B-Memos, Exhibits B-6 to B-10, were also filed to show that it was the appellant who was the custodian of the samadhi. She contended that she too had been spending for the Gurupuja festival. The appellant filed Exhibits B-1 to B-24 which are receipts and Exhibits B-25 to B-33 which are demand notices issued by the Electricity Department. Invitations issued by the appellant or on her behalf, viz., Exhibits B- 5 to B-37, were marked to show that it was not the respondent Sangham, but the appellant who arranged for the celebration of the Gurupuja every year.

6. The learned District Munsif, who tried the suit, held that the respondent Sangham could not have been conducting the Gurupuja festival for over thirty-five years since the Sangham itself had come into existence only in the year 1968 or 1969. On the other hand, he held that the Gurupuja festival had all along been arranged only by Muniammal and, after her life-time, by the appellant. Secondly, be held that the institution having been at its inception a samadhi, continued to have the same characteristics and the evidence did not warrant a finding that it had evolved itself into a temple. Consequently, he dismissed the suit by the Sangham. The learned District Judge, who heard the appeal preferred by the respondent Sangham, took a different view of the matter and held that the samadhi had evolved itself into a temple and secondly, the members of the public had been participating in the worship at the samadhi and temple all along as a matter of right and, therefore, the institution was public in character. He further held that though the respondent Sangham had been registered only in the year 1968, there was clear evidence to show that the members of the Sangbam as well as the members of the public had been conducting the Gurupuja festivals annually and the expenses for those festivals had been met from out of public contributions. In accordance with the conclusions reached by him, the learned District Judge reversed the judgment and decree of the trial Court and decreed the suit. Hence the present second appeal.

7. Mr. T.R. Rajagopalan, learned Counsel for the appellant, advanced several arguments to contend that the conclusions of the learned District Judge were not in conformity with the evidence adduced in the case, and secondly, they were not sound in law. Shortly stated, the contentions of the learned Counsel were as follows. The institution being admittedly a samadhi at its inception, there must be clear and convicing evidence to show that it had evolved itself into a temple. Secondly, there must be evidence to show that there has either been dedication of the institution to the benefit of the public or that the public, by long user, had acquired aright to offer worship and conduct pujas in the institution. Thirdly, the status of the Sangham as a representative body of Hindus was open to doubt as some of its members appeared to be Christians. Fourthly, even assuming that the Sangham was a representative body of Hindus, it had no locus standi to file the suit as it had not been instituted in a representative capacity, and there was no prayer on behalf of the public at large. Fifthly, no independent witness had been examined to show that the public were entitled as of right, to conduct the Gurupuja festival. Lastly, some of the documents filed on behalf of the Sangham, viz., Exhibits A-2, A-4, A-5, A-7, A-10 and A-12, had been considered in the earlier suit, O.S. No. 7 of 1955, and rejected by the Courts. On the other hand, Mr. R. Krishnamurthy, learned Counsel for the respondent, relied on several features to contend that the samadhi had become a temple and thereby a public institution, and as such, the judgment of the appellate Court should be sustained. The evidence relating to the installation of Sivalingam over the samadhi, the construction of a Vinayakar temple and the consecration of a Vel, and the performance of Kumbbabhishekam, Naivedyam, Nithyapuja, Gurupuja etc., were relied on to show that the institution was no longer a samadhi and it had come to be recognised by the public as a temple where spiritual benefit could be obtained. The last of the contentions of Mr. Krishnamurthy was that the numerous documents filed by the respondent Sangham clearly established that for the last several years, the Gurupuja celebrations were being done only by the Sangham and not by the appellant.

8. The principal questions that require consideration in the appeal are:

(1) Whether the institution of Sri Suruliandavar is a samadhi wherein the Vinayakar temple and the Vel of Lord Subramania are mere adjuncts, or whether the samadhi had evolved into a temple as known to Hindus?

(2) Whether the public, as of right, have acquired an interest to perform the Gurupuja and other festivals in the institution and

(3) Whether the respondent Sangham has locus standi to contend that it has become solely entitled to conduct Gurupuja and other festivals and is therefore entitled to the reliefs of declaration and injunction in its favour?

9. Taking the first and second questions for consideration, it is not in dispute that Sri Suruliandavar is a place where the samadhi of the Swamiar bearing that name was built after he attained mukthi about forty years ago. What is the status given in Hindu Law for a tomb or a samadhi of an ordinary Hindu, is by now well settled. This Court has pronounced in Kunhamutti v. Ahmed Musaliar : AIR1935Mad29 . J. Draviasundaram Pillai v. Subramania Pillai : AIR1945Mad217 . and Veluswami Goundan v. Dkandapani : AIR1946Mad485 . that the performance of Gurupuja at the samadhi of a person, however pious was not a charitable object recognised by the Hindu Law and as such, any dedication of property for the performance of Gurupuja and public charities at the samadhi would not be valid. The ratio in these cases was approved by the Supreme Court in Saraswathi Ammal v. Rajagopala Ammal : [1954]1SCR277 . The same view was taken in yet another case, viz., Ramanasramam v. Commissioner, Hindu Religious and Charitable Endowments, Madras : AIR1961Mad265 and it was held that a samadhi by itself and not treated as a fitting object of public Hindu religious worship for over a long period, does not evolve into a temple At first sight, therefore, it appears that the appellant is on a form ground when she contends that Sri Suruliandavar is only a samadhi and not a temple in the known sense of the word. For the respondent two features were pointedout to contend that these rulings would not apply to the facts of the instant case, viz. : (1) that the samadhi was not of an ordinary individual but of a saint; and (2) in any event, the samadhi had, by subsequent treatment, evolved into a temple. The evidence discloses that Sri Suruliandavar had divine powers and a large number of people had devout faith in him and used to go to him to get relief, succour and peace of mind. There is therefore some force in the contention of the respondent that the samadhi we are concerned with is not that of an ordinary human being, but of a saintly person and therefore, the deification of such a person in a tomb would stand on a higher footing than building a samadhi for an ordinary individual. Some support for this argument is to be found in the observation of the Supreme Court in Saraswathi Ammal v. Rajagopala Ammal : [1954]1SCR277 . The observation of the Supreme Court is contained in the following words:

In so far as this statement relates to tombs of Hindus, we are unable to find any support from our knowledge and experience. There have been, no doubt, instances of Hindu saints having been deifed and worshipped, but very few, if at all, have been entombed and we are not aware of any practice of dedication of property for such tombs amongst Hindus. Such cases, if they arise, may conceivably stand on a different footing from the case of an ordinary private individual who is entombed and worshipped thereat.

It is, however, significant to note that the Supreme Court has not categorically stated that tombs constructed for deified saints are entitled to a greater status than tombs erected for ordinary Hindus who have no saintly powers. But, even assuming that the Supreme Court's observation lends support to the contentions of the respondent in any manner, it is pertinent to note that there has been no dedication of the tomb for the use and benefit of the public, nor is there any endowment or property for the performance of pujas etc., at the tomb. It is needless to say that before a temple or a shrine or other holy place can be accepted and recognised as a place of public religious worship, there must be evidence of dedication of the same for the benefit of the Hindu community or a Section thereof. As to what are the essential features for a place being classified as a place of public religious worship, this Court has held in Chennammal v. Commissioner, Hindu Religiaus and Charitable Endowments (1973) 2. M.L.J. 44? to which I was a party, and Thanumalaya Perumal Mudaliar v. Commissioner of Hindu Religious and Charitable Endowments (Administration) Department (1975) 88 L.W. 649. that the guidelines are that it should be a place of, public worship, there should be acceptable proof of dedication for the benefit of the Hindu community or a section thereof and/or the worshippers have been using, as of right, the religious institution as a place of public religious worship. One of the essential requirements, viz., dedication of. Sri Suruliandavar for the religious use and benefit of the public in wanting in this case. On account of it, the first contention of the respondent, viz., that the samadhi was of a saint and was, therefore, entitled to recognition as a temple than as a mere tomb of a mortal Hindu cannot be accepted.

10. The second argument of Mr. Krishnamurthi, learned Counsel for the respondent, was that, in any event, the institution was no longer a mere tomb or samadhi, but had become a temple because a Vinavakar temple on one side and a Vel of Lord Subramania on another side had been consecrated by the devotees. The further argument is that the samadhi as well as the temple and Vel had been put up with the aid of funds donated by the devotees of Sri Suruliandavar and therefore the institution had become a temple and was no longer a samadhi. Even this contention, I am afraid, cannot merit acceptance From the evidence it is seen that the main or major attraction still continues to be the samadhi of Sri Suruliandavar and not the Vinayakar temple or the Vel of Lord Subramania subsequently added thereto. As such, the Vinayakar temple and the Vel can only be considered as adjuncts to the samadhi, and not as features, which have transformed the place from a tomb or a samadhi into a temple. A somewhat similar question as the one on hand had to be considered by a Division bench of this Court which decided Veluswami Goundan v. Dhandapani. : AIR1946Mad485 . The Bench held that a temple built at or around the site of a samadhi can only be considered an adjunct of the samadhi and not an independent object of bounty. In. yet another case, vide B.M. Committee v. H.P.E. Board : AIR1954Mad1027 . a situation very similar to the one on hand arose for consideration. The institution that required consideration in that case had its origin in the tomb or samadhi of one Bodendra Swamigal, a holy man and a saint. To commemorate his memory, as is not unusual, a matam was constructed round the samadhi in which pujas and religious observances were being done. Several big vigrahams or idols of Sri Gopalakrishna, Sri Rama, Lakshmana, Venugopala and Anjaneya were installed in the matam and pictures of Sri Radhakrishna, Sri Panduranga and Ors. were also hung and puja was done, not to the samadhi, but to the idols and pictures. On account of these features, the contention in that case was that the institution-was a temple. The contention was rejected by Mack, J., and the learned Judge held as follows:

I am not prepared to hold that the mere presence of some idols and the festivals, which have grown round the samadhi of Bodendraswami, inevitable in the case of all tombs of saints and great men in this country, would bring it within the definition of a temple.

The same ratio would apply to the instant case also. The building of Vinayakar temple on one side of the samadhi and the consecration of a Vel on the other side can only be considered adjuncts to the samadhi and not factors which have the effect of elevating the samadhi to the category of a temple.

11. Another contention advanced on behalf of the respondent was that, whatever be the origin of the institution, if it has come to be recognised and respected by people professing the Hindu faith to be a place of divine presence and serenity, the sentiment of the worshippers should be respected and the place or institution given recognition as a temple or a place of public religious worship. This argument is based on the observation of Varadachariar J., in Board of Commissioners for the Hindu Religious Endowments, Madras v. P. Marasimhan : AIR1939Mad134 . and a decision of Venkatarama Ayyar, J., in Rathnavelu v. Commissioner, Hindu I eligious & Charitable Endowments I.L.R. : AIR1954Mad398 . The observation of Varadachariar, J., in the case referred to above is to the following effect:

That what the evidence in this case describes as taking place in connection ' with the institution is public worship, can admit of no doubt. We think it is also religious. The test is not whether it conforms to any particular school of Agama Sastras; we think that the question must be decided with reference to the view of the class of people who take part in the worship. If they believe in its religious efficacy in the sense that by such worship, they are making themselves the object of the bounty of some superhuman power, it must be regarded as 'religious worship.

The difficulty in applying/the ratio of this observation to the facts of the instant case is that there is not adequate evidence here to show that the members of the public have been offering worship at the samadhi with a belief in the religious efficacy of the institution and they are making themselves the object of the bounty of some superhuman power. Only five witnesses have been examined on the side of the respondent and all of them, happen to be either office-bearers or members of the respondent Sangham, Since the Sangham was laying claim to exclusive right to conduct the Gurupuja' and other festivals at the samadhi, the evidence of P.Ws. 1 to 5 become sinterested testimony. No explanation has been offered by the respondent as to why no independent witness was examined to prove the religious efficacy of the place even though it is claimed that thousands of devotees congregate at the samadhi during the Gurupuja festival. Turning now, to Rathnavelu v. Commissioner of Hindu Religious and Charitable Endowments : AIR1954Mad398 . it was. held therein that where, for a long period, an institution had been regarded as a place of religious worship, which the public were entitled to use as a matter of right, it fell within the definition of a 'temple' and the mere fact that the institution had its origin in a samadhi and continued to have traces of its origin would not make any difference to the Situation. I am afraid, the pronouncement of the Division Bench in that case cannot be invoked by the respondent to its aid in the instant case, for, the facts there were totally different. Though the institution started with the construction of a samadhi for one Apparswami, it was always considered a pagoda and not a samadhi. A grant was made in favour of Chidambaraswami who constructed the samadhi, as early as in 1860 by Government, and in the deed of grant, Chidambaraswami was described as the founder of the pagoda and not the samadhi. Various pujas, utsavams and other celebrations according to Vedanta Sastra were being performed at the institution from its inception. A will left by Chidambaraswami made reference only to the performance of the pujas and charities and did not contain even a vague reference to the samadhi. Thus, in effect, the origin of the institution as a samadhi and the existence of a samadhi had almost become blurred. It was in those special circumstances, the Bench gave its opinion in the terms-extracted above. That hardly is the picture here. The samadhi of Sri Suruli-andavar is still very much in the picture, and in fact, it continues to be the major attraction of the place, The main festival is only the performance of his Gurupuja on the day he attained mukthi. Hence this decision too cannot advance the case of the respondent in any manner.

12. In his attempt to sustain the judgment of the appellate Judge, Mr. Krishnamurthi went to the extreme extent of contending that when this Court has held that even the presence of an idol was not an indispensable feature of a Hindu temple, the existence of a Vinayakar temple and the Vel of Lord Svbramania at Sri Suruli-andavar would, by itself entitle the institution being classified a temple. The case relied on by the learned Counsel is, Ramaswami v. The Board of Commissioners, Hindu Religious Endowments, Madras I.L.R. (1950) Mad. 799. That was a peculiar case where a Hindu executed a deed of gift endowing properties' to a temple which was in the process of construction. For some reason, the temple never came into existence, nor was any idol installed. A question arose for consideration whether the Hindu Religious Endowments Board was entitled to treat the place as an institution notwithstanding the temple not being completed and the proposed idol installed. Unfortunately for the persons in charge of the institution, a finding of the Board that the incomplete temple was an institution and a temple within the meaning of Section 84 (1) of the Hindu Religious Endowments Act (II of 1927) as amended by Act (X of 1946), was left unchallenged and the finding became final. It was in that peculiar situation, that Viswanatha Sastri, j., held that the presence of an idol, though it is an invariable feature of a Hindu temples, was not a legal requisite under the definition of a temple is Section 9 (12) of the Act and that if the public or that Section of the public who went for worship considered that there was a divine presence in that particular place and by offering worship there they were likely to be the recipients of the blessings of God, then the essential features of a temple as defined in the Act were present. That observation cannot be taken to mean that every place where an idol is found must be held a place of public worship and therefore a temple.

13. The last argument of Mr. Krishnamurthi was that that there is evidence to show that the members of the public have been worshipping at the samadhi and attending the Gurupuja and other festivals in large numbers, that the contributions given by the public, as evidenced in the statements of accounts filed by the respondent and the existence of a hundial at the institution, would all go to show that the public were using the samadhi as a place of worship as of right and therefore, the institution must be held to be a public one. Though there is evidence to show that the public have been visiting the institution during Gurupuja festival etc., arid also giving contributions for the performance of the festival etc., the evidence falls short of the requisite standard to hold that they had been using the place for worship as of right. It is needless to say. that merely because the members of the public are allowed to attend religious festivals and ceremonies, it cannot be straightway said that such user was due to an inherent or acquired right of the public to visit the shrine and offer worship. In various decisions it has been repeatedly held that the mere fact that Hindu worshippers have been freely admitted to the temple does not prove the temple to be a public institution, because the consonance of Hindu sentiment and practice is. not; to turn away worshippers even in private temples, Vide : Bhagwan Din v. Harsaroop . State of Bihar v. Biseshwar Das : [1971]3SCR680 . and Chennammal v. Commissioner of Hindu Religious and Charitable Endowment : (1973)2MLJ442 . On account of. all these features, the view of the appellate Judge that Sri Suruliandavar, though a samadhi at its inception, had evolved into a public temple, cannot be sustained. The learned appellate Judge has not scanned the evidence in detail, nor has he applied the correct principle of. law. Hence the finding on the first two questions has to be against the respondent.

14. Even on the third question whether the respondent Sangham is entitled to claim that it has acquired a right to perform the Gurupuja and festivals, the case of the respondent is on very weak foundation. Though the respondent contended that it had been doing Gurupuja for over thirty-five years, the evidence discloses that the Sangham came into existence only in the year 1968. Some of the records filed by the respondent disclose that a few of the members of the Sangham were contributing funds and making some arrangements for the celebration of Gurupuja etc., at the samadhi even before the Sangham came into existence. That cannot, however, be taken that the Sangham itself was performing the various celebrations. That apart, the evidence is also not clinching that all the expenses incurred at the samadhi were not exclusively by the contributions of the members of the Sangham. Admittedly, the electric installations in the samadhi were not provided by the members of the Sangham. From the evidence of D.W.1, it is seen that it was Muniammal who had made arrangements for electric lights etc., being fitted at the temple. Though the Sangham produced receipts to show that it had paid the electricity charges for some years, the appellant too has produced receipts to show that she had also been paying the electricity charges for the current consumption at the samadhi. Further more, P.W.1, has admitted in cross-examination that several devotees have spent moneys for the construction of the Vinayakar temple etc. But, all those donors are not members of the Sangham. According to him, there are only about two hundred members in the Sangham : and the subscription of each member is only Rs. 2, per annum. From out of the subscriptions of the members the various expenses incurred for the celebration of Gurupuja etc., could not have been met. It threfore follows that the balance of expenditure must have been met either by the appellant or the members of the public. He. has admitted that the Vel installed in the temple was not provided, by the Sangham, but was acquired from, out of the funds given by the public. The hundial collections do not seem to be taken by the office-bearers of the Sangham because the collections are not shown in the statements of accounts. On the other hand, D.W.1 has stated that hundial collections would be about Rs. 500 per annum and that amount was utilised by the appellant along with her own funds, to perform the festival etc., at the temple.

15. Over and above all these things, it is seen that the suit has not been filed by the Sangham in a representative capacity. As such, even if it were to be held that Sri Suruliandavar was not a private samadhi, but was a public temple, it is not understandable how the respondent Sangham can claim exclusive right to-conduct the Gurupuja and other festivals. P.W.1 has admitted that the Vinayakar temple etc., was constructed from out of public contribution and the institution belongs to the public at large. As such, it is only the representative of the public who can claim a right to manage the affairs of the institution and not the respondent Sangham, which has only a. membership of about two hundred on its rolls. This infirmity in the case of the respondent also stands in the way of the reliefs of declaration and injunction, as prayed for in the suit, being granted to it. An argument was advanced by the respondent's counsel that the appellant had not gone into the witness-box and adduced, evidence in support of her case. That cannot be considered a serious infirmity, because, being a woman, she has to necessarily indent upon the services of her male relations to look after the arrangements for the festivals etc., at the samadhi. D.W.1, being her own husband's brother's son, has therefore, been examined to speak about the affairs of the samadhi. Whatever it be, it is the respondent who came to Court with a specific case and as such, the burden of sustaining the averments in the plaint is on the respondent. When that obligation has not been satisfactorily discharged, there is no point in contending that the appellant had not adduced any evidence on her side in support of her contention. The learned appellate Judge was clearly in error in holding that the respondent Sangham had been doing the Gurupuja for about thirty-five years and therefore, it had become entitled to do the puja in the years to come also without let or hindrance. This question is also answered against the respondent.

16. In the result, the appeal has to succeed and the judgment of the appellate Judge cannot be sustained. The appeal will therefore stand allowed and the dismissal of the suit by the trial Court will stand restored. There will, however, be no order as to costs. It is, however made clear that the findings rendered in this appeal would not operate as a bar against the Hindu Religious and Charitable Endowments Board. If, at some future point of time, the Board, feels that the samadhi had evolved into a temple and there is large-scale participation of the public in the festivals conducted in the institution and therefore, the management should vest with the Board the Board will be entitled to put forth its case and have the same decided on merits. As pointed out by this Court in Auisomma v. Kunhali : AIR1957Mad674 . confirming another decision of this Court in Second Appeal No. 1394 of 1948 and in Ponniah Nadar v. Chellian Nadar : (1970)2MLJ526 . where the Board itself is not directly interested in the dispute, the bar under Section 84 to a civil Court adjudicating the dispute would not apply, but however, any decision by a civil Court would not tie the Board's hands where the Board itself wants to initiate action about the institution which was . the subject matter of dispute in the civil action.

No leave.


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