V. Sethuraman, J.
1. This appeal has been filed by the plaintiff in O.S. No. 119 of 1971 in the Court of the Subordinate Judge of Nagercoil. The suit was for a declaration that the Thamarakulam Vellala Samudhaya Arya Kulasekhara Nangai Amman Temple Trust is a denominational Trust belonging to the Vellala Samudayam Community residing in Thamarakulam Village, and for a permanent injunction restraining the State of Tamil Nadu and the Commissioner, Hindu Religious and Charitable Endowments, from interfering with the management. There was also a prayer for restraining the defendants from realising any dues or collection from the Trust properties or from disturbing the possession of the properties in the hands of the Trustees.
2. It was stated in the plaint that the Trust owns temple, movable and immovable properties. The management of the temple and the administration of its properties were alleged to be in the hands of the 'Samudayam' through the elected representatives of the community. It was claimed that the maintenance of such an institution as a denominational one was guaranteed by Article 26 of the Indian Constitution and Section 107 of the Tamil Nadu Hindu Religious and Charitable Endowments Act XXII of 1959. Reference was made to a scheme framed by the District Court of Nagercoil in O.S. No. 162 of 1123 and it was stated that the department of Hindu Religious and Charitable Endowment had no right to interfere with the management and administration of the institution and its properties. The claim for audit fee and contribution was thus resisted.
3. The Commissioner, Hindu Religious and Charitable Endowment, has been impleaded as the second defendant and he has filed a written statement in which he has stated that the temple was a public one to which all sections of Hindu community had access and that, therefore, it was not a denominational temple. There was a paid archaka doing pooja services in the temple twice a day, and there were special poojas on important occasions and festival days. There was no difference between the pooja conducted in this temple and in any other temple. The provisions of the Tamil Nadu Act, were, therefore, stated to be applicable and the plaintiff's institution was liable to contribute the audit fee.
4. The following issues were framed by the trial Court:
1. Whether the suit temple is a denominational one exclusively belonging to the Vellala Community of Tamarakulam?
2. Whether the temple is a Public Religious Institution within the meaning of Tamil Nadu Act XXII of 1959?
3. Whether the 2nd defendant has powers of general supervision and control, even if it is a denominational institution and the institution is liable to pay lawful dues to D-2?
4. Whether plaintiff is entitled to the injunction prayed for ?
5. Whether the suit is barred by virtue of Sections 63 and 108 of Tamil Nadu Act XXII of 1959?
6. Whether the suit notices are in conformity with law ?
7. Whether suit is maintainable as against 1st defendant ?
8. Whether plaintiff is entitled to the injunction ?
Addl. 9. Whether the 2nd defendant is entitled to collect the audit fees and contribution if any in case the plaint trust is denominational trust ?
10. Whether there is any cause of action for this suit?
The suit was dismissed on a preliminary ground, and in appeal in A. S. No. 66 of 1974, the District Court, Nagercoil remanded the suit. It is in pursuance of the remand that the present trial came to be conducted,
5. After discussing the evidence, the learned Subordinate Judge held that the suit temple was a public religious institution and not a denominational trust. This was the answer to issues 1 and 2. Regarding issues 3, 7 and Additional Issue No. 9, the finding was that the plaintiff was liable to pay contribution and audit fee. The suit was held to be not barred by Sections 63 and 108 of Tamil Nadu Act XXII of 1959 This was the answer to issue No. 5 The other issues namely issues 10 and 6 were found in favour of the plaintiff and issues 4 and 8 were answered against the plaintiff and it was held that it was not entitled to the relief of injunction. The result was that the suit was dismissed.
6. The present appeal has been filed against this judgment. Section 6, clause 18 of Tamil Nadu Act XXII of 1959 defines 'religious institution' as follows:
'religious institution' means a math, temple or specific endowment ; Section 6, Clause 19 defines 'specific endowment' as follows:
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 nature.Section 6(20) defines temple as'temple' means a place by whatever designation known used as a place of public religious worship, and dedicated to, or for the benefit of, or used as of right by, the Hindu community or any section thereof as a place of public religious worship;
Section 63 confers jurisdiction on the Deputy Commissioner to decide certain disputes and matters, but there is no specific provision to determine the question whether a particular temple is a denominational one or not, therein.
7. Section 92 in this Act provides for every religious institution paying the annual contribution to the Government and Section 107, material for our present purpose, provides as follows:
Nothing contained in this Act shall, save as otherwise provided in Section 106 and in Clause (2) of Article 25 of the Constitution, be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution.
Section 106 provides that
there shall be no discrimination in the distribution of any Prasadam or Theertham in any religious institution on grounds only of caste, sex, place of birth or any of them.
Article 26 of the Constitution to which reference has been made, runs as follows:
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right-
(a) to establish and maintain institutions for religious and charitable purposes ;
(b) to manage its own affairs in matters of religion ;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
It is in the context of those provisions, it has to be found whether the plaintiff is a denominational institution or not.
8. The learned Government Pleader contended that the plaintiff is only a trust and that it being a religious trust, was properly brought within the scope of the provisions of the Act. The prayer in the plaint deals mainly with the maintenance of the temple as such. It has, therefore, to be considered whether the temple is a denominational temple. The Oxford Dictionary defines the word 'denomination' as
a collection of individuals classed together under the same name; a religious sector body having a common faith and organisation and designated by a distinctive name.
Each one of the sects and subjects of Hindus has been considered to be a religious denomination, by the Supreme Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt : 1SCR1005 . In Sri Venkataramana Devaru and Ors. v. The State of Mysore and Ors. : 1SCR895 , the Supreme Court was concerned with the temple dedicated to Sri Venkataramana. The Trustees of the said temple belonged to a sect known as Gowda Saraswath Brahmins. This Gowda community hailed from Kashmir, and settled down in various places and one of them was South Kanara. The temple was built in one of the three villages inhibited by this community. The question that arose for consideration by the Supreme Court was whether the Harijans could be admitted into this temple. The real issue thus was he whether to Madras Temple Entry Authorisation Act (Madras V of 1947) applied to this temple. The contention on behalf of the Trustees was that their rights to maintain their own affairs in matters of religion were protected by Article 26 of the Constitution and that, therefore, this enactment could not apply to them. It was held that though the temple was a denominational temple, and the denominational rights were protected in so far as the denomination did not interfere with the fundamental rights available under Article 25(2) (6) the Madras Temple Entry Authorisation Act, 1947 applied to it. At page 907 in the above case, Venkatarama Aiyar, J., has observed as follows:
The law on the subject is well-settled When there is a question as to the nature and extent of a dedication of a temple, that has to be determined on the terms of the deed of endowment if that is available, and where it is not, on other materials legally admissible; and proof of long and uninterrupted user would be cogent evidence of the terms thereof; where, therefore, the original deed of endowment is not available and it is found that all persons are freely worshipping in the temple without let or hindrance, it would be a proper inference to make that they do so as a matter of right, and that the original foundation was for their benefit as well. But where it is proved by production of the deed of endowment or otherwise that the original dedication was for the benefit of a particular community, the fact that members of other communities were allowed freely to worship cannot lead to the inference that the dedication was for their benefit as well.' It is in this context, that their Lordships quoted with approval the following passage in Babu Bhagwan Din v. Gir Har Saroop (1939) LR67 IA1 : 1940 1MLJ 1 : 51 L.W. 4 : .it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away.
9. Thus the law on the point is well-settled that even a particular caste can maintain an institution and seek protection as a denominational institution. The fact that the public have access to it, will not be material. So long as it is clear that the denomination is really in charge of the temple and its affairs, it would be a denominational institution, though the public are not excluded from it.
10. These principles came to be applied by a Division Bench of this Court in Madurai Sourashtra Sabha represented by its Honorary Secretary, T. D. Rajagopalier v. The Commissioner, Hindu Religious and Charitable Endowments (Administrative Department) Madras 1971 84LW86,. In that case the Sourashtra Brahmin Community of Madurai claiming to be a religious denomination con-tended that the temple of Sri Prasanna Venkateswaraswami situated in Madurai town was a denominational temple entitled to the protection of Article 26 of the Constitution. In holding that the community was a religious denomination and the temple was a denominational temple, governed by Article 26 of the Constitution, the learned Judges referred to a passage in an earlier decision of this Court in M. R. Venkatachalapathy and another v. Deputy Commissioner, H. R. and C. E., Thanjavur and another W.P Nos 804 and 805 of 1967, in which, it had been held as follows:
To constitute a denominational temple, the use of the temple and the worship therein need not be confined to the members of that denomination. But, if the temple belonged to the religious denomination of Sourashtra and if that community was entitled to manage the temple, it would be a denominational religious institution.
11. It may be mentioned here that I had also occasion to go consider a similar question in a judgment dated 11th November, 1977 in V. Balakrishnan and others v. The Assistant Commissioner, H.R. & C.E. and others Appeal No. 456 of 1973, and the same test was adopted.
12. It is in the context of these principles that it has to be examined whether the temple was in the exclusive management of the plaintiff and whether it can be called a denominational temple. In a scheme framed in O.S. No. 162 of 1123, dated the 25th January, 1951 by the District Court, Nagercoil, there is the following passage:
13. In the light of the declaration, it is clear that this temple has been in the management of the Vellalas of this area. It is true that there are two sects of these Vellalas governed by distinct lines of succession, one group following the law of succession by Makkavazhi (lineal descendants) and the other by (Marumakkavazhi matriarchal descendants). Except in matter of succession to properties, there does not seem to be any distinction between the two sections of the community Therefore, the community would be a sect entitled to maintain this temple as it has been doing so for a long time, as evidenced by Ex. A-1. The plain tiff would, therefore, be entitled to a declaration that the temple, is a denominational temple, and for the relief prayed on that basis.
14. Even in respect of a denominational temple, the authorities, under Tamil Nadu Act XXII of 1959 would have jurisdiction to levy contribution and audit fee. The denominational temples are not exempted from payment of audit fee or contribution. The learned Counsel for the appellant faintly contended that no particular services had been rendered to this temple by the Departmental authorities, and that, therefore, there is no obligation to pay contribution or audit fee This contention is a misconceived one. The contribution and audit fee are levied for the services rendered by the Department in the matter of superintendence of a temple. It is in exercise of such powers of superintendence that the accounts are audited and other services are ordered to all the temples. Therefore, it is not possible to relate the services to a particular temple to examine whether fees and contribution are payable by it. The contribution and audit fee would be leviable on any public temple of which this temple is one. It is not in dispute that the public have access to this temple. Even a denominational temple, so long as it is pot a private one, would be liable to the contribution and audit fee. Therefore, except in the matter of declaration and any relief in consequence the rest of the reliefs cannot be granted to the plaintiff.
15. Learned Government Pleader contended that, in case there is any mismanagement, the provisions of the Act would have to be applied. It has already been held that the provisions of the Act would apply to the institution. The denomination has a right to administer its temple and not mal-administer it. If there is any maladministration, the department authorities would, in this view be in a position to exercise the necessary powers to the extent possible under the statute. The appeal is accordingly, partly allowed. No order as to costs.