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P. Jayader Vs. Thiruneelakanta Nadar Chinnaneela Nadar and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts And Societies
CourtChennai High Court
Decided On
Reported in(1966)2MLJ278
AppellantP. Jayader
RespondentThiruneelakanta Nadar Chinnaneela Nadar and ors.
Cases ReferredMacalister v. Young L.R.
Excerpt:
.....the property was dedicated. but the existence of such a power would have to be proved like any other tenet or principle of the association. so far as the board om neela narayana namah is concerned, this it is stated was installed in or about the year 1951. the suit has been filed in 1957. the fact that the members of the family did not complain about this as an innovation affecting their worship for over six years is significant. on the observations above made the injunction for removal of the board with the manthram as well as for restoration of the temple to its old state by pulling down the new constructions has to go......deed in the family, evidencing the arrangement by which the defendant was placed in charge of the family temple and its properties. though in the earlier stages of this litigation the defendant had contested in a rather vague manner the position that it is a private family temple, the matter is not now in dispute before me, as it cannot in view of the recitals in exhibit a-2. the evidence also shows that the defendant was properly and regularly conducting all the functions connected with the shrine and performing the puja devotedly. the complaint of the plaintiffs and the cause of action for the suit are the ceremonious putting up of a board within the shrine with the words om neela narayana namah and addition of certain structures by slight alterations of the existing building thereby.....
Judgment:

M. Natesan, J.

1. This Second Appeal is from the decree of the lower appellate Court which inter alia has granted certain reliefs for injunction in favour of the plaintiffs with reference to a private temple which is the subject-matter of the suit. The defendant now represented in the Second Appeal by his legal representatives objected particularly to the injunction directing the removal of a board with a sacred manthra on it from the sanctum sanctorum of the temple and for the demolition of certain new constructions put up with a direction to restore the temple to its original structures.

2. The parties are referred to as they figured in the trial Court. The twoplantiff's and the sole defendant were brothers and sons of one Thiruneelakanta Nadar. This Thiruneelakanta Nadar pre-deceased his father Karankattan Nadar. The family is a rich and prosperus one in the locality and the evidence is that the plaint property which is temple in which the family deity Neelaswami is worshipped has been there for over one hundred years, the shrine being within a portion of the family house. Property of considerable value has been set apart for the shrine by this family and Karankattan Nadar was during his lifetime in management of the temple properties and the affairs of the temple. There is no idol as such installed in the temple but there are lamps, Kuthuvilakkus, several of them placed there which burn authrough the day and night. These are worshipped with flowers. The evidence shows that after Karankattan Nadar, the defendant had been performing the puja at the shrine and managing the properties of the temple. Any way there is a document Exhibit A-2, partition deed in the family, evidencing the arrangement by which the defendant was placed in charge of the family temple and its properties. Though in the earlier stages of this litigation the defendant had contested in a rather vague manner the position that it is a private family temple, the matter is not now in dispute before me, as it cannot in view of the recitals in Exhibit A-2. The evidence also shows that the defendant was properly and regularly conducting all the functions connected with the shrine and performing the puja devotedly. The complaint of the plaintiffs and the cause of action for the suit are the ceremonious putting up of a board within the shrine with the words Om Neela Narayana Namah and addition of certain structures by slight alterations of the existing building thereby providing space for going round (Paradakshinam), the sanctum sanctorum. It is the case of the plaintiffs that by these acts the defendant who had been under a family arrangement placed in charge of the temple and its properties for the family, was varying the nature and character of the institution and that the acts and conducts were likely in the end to change the character of the institution into a public temple.

3. The Court of first instance upheld the plea of the plaintiffs that the defendant was in possession of the property for Neelaswami, their family deity and that his possession was for the benefit of the family members. The evidence established that the family members and others whom they chose to permit participated in the feast on Fridays and that the members of the family offered puja to the deity. The defendant's position, it was held, was that of a trustee for the family members in respect of the administration of the family temple. However, the first Court held that the impugned acts of the defendant were not acts of waste and while granting a declaration that the plaint property was the family property denied the further reliefs claimed by the plaintiffs. The lower appellate Court while observing that the alteration of temple premises like plastering the floor and putting up new wall may not amount to acts of waste felt that they changed the character of the buildings and that this should not be allowed. With reference to the board containing the sacred manthram (Om Neela Narayana Namah) the Court held that as there was a ceremonious installation of the board, manthra prathishta it had made a difference. In that view, and as particularly the defendant in the earlier stages had denied the family character of the temple and asserted that his administration of the temple affairs could not be questioned, the lower appellate Court granted all the reliefs as prayed for in the plaint. An appeal had been preferred to the lower appellate Court by the defendant against the decree granting declaration alone and this naturally got dismissed.

4. As stated at the outset there is no serious dispute before me that the shrine or temple is the private temple of the parties and the management of the same by the defendant was under a family arrangement and that the defendant was in the position of a trustee with reference to his management and administration of the shrine. But it is contended for the defendant who was the original appellant before me that the relief of injunction granted cannot be maintained and that the acts of the defendant which were impugned were acts of the defendant bona fide made in the course of the management of the shrine. These acts, it is stated, are in fact meritorious acts adding to the convenience in worship and cannot be considered to be acts of waste or acts in excess of the defendant's powers as trustee and manager of the shrine. For the plaintiffs, it is contended, that the defendant had no absolute rights, to act at his pleasure even in the matter of administration and that he cannot make any substantial alterations with reference to the buildings or in other matters of administration without reference to them. It is argued that to-day it may be the putting up of a board with some sacred manthram on it and prakaram for pradakshinam but to-morrow it may be the installation of an idol in the shrine or a Nandhi or Dwajasthambam. Other paraphernalia of public temples may be brought in and access allowed to the public ultimately leading to the public claiming the temple as a public one.

5. The law with reference to private religious endowments on this aspect of the matter is thus set out in Ganapathi Iyer's Hindu and Muhammadan Endowments, Second Edition, at page 173:

As regards the third point, the Privy Council have held that in the case of a private religious endowment the consensus of the family can give any turn to the endowment.

6. In Mukherjea's Hindu Law of Religious and Charitable Trust at page 176, it is observed:

The property cannot therefore be taken away from the deity or diverted to other purpose without the consent of the idol.

7. Even the power of all the members of the family, male and female, who are interested in the worship of the deity to change the character of the property has been doubted in recent times as, the property if once it is dedicated to the family deity, the endowment becomes a religious and charitable trust in the proper sense of the term. The law of perpetuity and remoteness does not affect the dedication as noticed in Mukherjea's Law of Endowments above referred to, and there is no reason why the other incidents of private trust should be applied to it. It is doubtful in the circumstances whether it will be open to all the members at any particular point of time to change the character of the institution (vide Law of Endowments Hindu and Muhammadan, by Ghosh, Second Edition, page 207, and Mukherjea's Hindu Law of Religious and Charitable Trust, Second Edition, page 176). The Essence of a family endowment is that the members of the family alone are entitled to worship and to manage the affairs of the endowment (Ganapathi Iyer's Hindu and Muhammadan Endowments, Second Edition, page 565).

8. There can be no doubt about the power of the civil Court to grant appropriate relief in cases where, with reference to a private endowment, the trustee or manager in possession acts in such a way as to jeopardise the private character of the worship at the shrine or alter the nature of the worship substantially or does any other acts as to interfere with the rights of the members of the family to take part in the worship as per the established uasge and custom. In Elayalwar Reddiar and Ors. v. Namberumal Chettiar I.L.R.(1899) Mad. 298 : 10 M.L.J. 86, it is laid down a page 304 no doubt in dealing with a public temple:

The Courts are bound to restrain a trustee from injuring the interests of the institution under his charge by corruptly, arbitrarily or wantonly departing from the ordinary course of procedure in regard to essential or important matters connected with the institution. The ground upon which the Courts exercise such jurisdiction over him is that such departure on his part amounts to a breach of legal duty incumbent on him.

9. The principle regarding private religious endowments cannot be different. For instances of relief by Courts restraining trustees by injunction making unjustifiable changes which would affect the character of the temple as a religious institution, reference may be made to the decision of a Division Bench of this Court in Krishnaswami Ayyangar v. Samaram Singarachariar I.L.R.(1906) Mad. 158 : 17 M.L.J. 1. Reference is made therein to an unreported case of this Court where protection was granted to a worshipper from introduction of idols or other objects which interfered with the form of worship for which the temple was dedicated. It is well-settled that even a majority cannot alter the fundamental principles relating to an endowment which may destroy the trust upon which the property was dedicated. When such is the position and when even a majority of persons in whom the management is vested could not act in a way to affect the fundamental basis, mode and object of worship at the shrine, it goes without saying that the defendant singly cannot act in such a manner as to affect the character of the worship at the shrine. The underlying rule in matters of religion and faith may be found in the observation of Lord Davey in Free Church of Scotland (General Assembly of) v. Overtoun (Lord)--Macalister v. Young L.R. (1904) A.C. 515, 645:

The question in each case is : What were the religious tenets and principles which formed the bond of union of the association for whose benefit the trust was created I do not think that the Court has any test or touchstone by which it can pronounce that any tenet forming part of the body of doctrine professed by the association is not vital, essential, or fundamental, unless the parties have themselves declared it not to be so. The bond of union, however, may contain within itself a power in some recognised body to control, alter, or modify the tenets and principles at one time professed by the association. But the existence of such a power would have to be proved like any other tenet or principle of the association.

10. Now I shall examine the impugned innovations in the light of the above principles. So far as the board Om Neela Narayana Namah is concerned, this it is stated was installed in or about the year 1951. The suit has been filed in 1957. The fact that the members of the family did not complain about this as an innovation affecting their worship for over six years is significant. The plaint refers to changing the name of the deity which is worshipped. It is difficult to imagine that this putting of the board is in any way likely to mislead as to the deity which is worshipped by the members of the family. The suggestion on behalf of the defendant is thatNeelaswami is not very different from Neela Narayanaswamy. True, as observed by the lower appellate Court, it is not for the Court to say that there is not much difference in names. What is important is how it affects the individual worshipper. But all that P.W. 3 states with reference to this board is that there was no necessity for such a board. He would add that the installation is opposed to all tradition. But he admits that the board was not causing any obstruction to the offering of worship as before. He admits that no one wanted to worship the inscription. He also admits that Narayana in Neela Narayana is a holy word. There is evidence that there are pictures of Gods put up on the walls in the sanctum sanctorum. P.W. 1 admits it. The only apprehension that appears to have been voiced in the Court below and frankly stated here was that as there was a Narayanaswami temple in the neighbourhood, this might lead to confusion, the suit temple possessing considerable properties. The fear is totally groundless, as the view of the learned Subordinate Judge in appeal that the installation of the board made a difference does not imply that the name of the deity of the suit temple was being changed by the board. Much has been made by the lower appellate Court of the statement of the defendant that there was manthra prathishta when referring to the putting of the board. Evidently all that the defendant must have meant was the ceremonious installation of the sacred words which the board contained. True the defendant has spent some money on the intallation. How this installation of the board would give a handle to the public to claim it as a public temple passes one's comprehension. The other innovation that has been the subject of the charge against the defendant is providing a prakaram or a passage for going round the sanctum sanctorum. This, of course, it must be noted was an innovation just immediately before the suit and appears to have given rise to-the suit. It is admitted in the evidence of the plaintiffs that there was no interference thereby of any offering of worship as before. According to the Commissioner, who was appointed in the suit for inspecting the shrine, the constructions were necessary and give safety to the temple proper. The Commissioner also notes that the construction of the corridor does not in any way interfere with the worship of the temple. The first plaintiff would state that it was possible to have a pradakshinam of the temple after the construction but that he did not know whether it was beneficial to perform pradakshinam to the deity in the temple. It may also be noted that the temple was originally, according to P.W. 1 a thatched building. It was subsequently only tiled by Karankattan Nadar, the old structure being renovated and new structures being put up. On Friday, the members of the family gather together and do bhajan. P.W. 3 admits that not only members of the family but others also come and worship and partake in the feast. Evidently, this is by permission. He also admits that all the rituals and services are done at the temple as previously. Lighting of lamps, hanging garlands and the offering of worship are being carried on as before, after the innovation also. The principal complaint appears to be that the plaintiffs were not consulted in these matters and a vague apprehension that these innovations may eventually make it a public temple as the temple has considerable properties endowed by the family. The properties are not the subject-matter of consideration in this suit.

11. Mr. T.R. Ramachandran, learned Counsel appearing for the plaintiff very fairly stated that it could not be seriously contended that these innovations are likely to affect or alter or in any way interfere with the character of the worship at the temple or the changes were of such a fundamental character as would amount to breach of trust. Learned Counsel only voiced what he would state is a reasonable apprehension in the minds of the members of the family, that this enthusiasm of the defendant may carry him to such an extent that later claims may be made by authorities or by members of the public that the shrine is a public one. Learned Counsel submitted that this apprehension could not be said to be unfounded in view of the considerable endowments in favour of the temple and that his clients had come forward to safeguard the interest of the temple for the family. Learned Counsel submitted that if it was made clear that the defendant had no absolute powers in the matter of administration and management, it may not be necessary at this stage to pull down the structures which have been constructed and which do not interfere with the custom and mode of worship. So far as the board is concerned as already stated, it has been there for over six years and if the putting of the board with the manthrams thereon was such a violent departure, the parties would not have kept quiet. Admittedly there are other pictures of Gods hung up in the sanction sanctorum and it has not been made out by evidence that the introduction of the board has in any way affected the normal and accustomed worship at the shrine. There is no evidence that the manthram inscribed in the board is opposed to the tenets and religious principles of the other members of the family. The board has stood by all these years and the suit having been instituted about six years after the installation, it cannot be said that this is a case for grant of the discretionary relief for injunction simply to remove some vague apprehension in the minds of the plaintiffs. As already stated, the temple being a private one, it is not open to any one member of the family who may be in management of the shrine to convert it into a public temple nor can he in the exercise of his powers and management alter the custom, mode or worship or character of the institution. In these matters, the faith, belief and religious susceptibilities of the members of the family for whom the shrine is intended is of paramount importance. The plaintiffs will, therefore, be entitled to have maintained the relief of declaration that the suit temple is a private family temple of the plaintiffs, and defendant. But they cannot, however, claim a general injunction in the wide terms as prayed for. On the observations above made the injunction for removal of the board with the manthram as well as for restoration of the temple to its old state by pulling down the new constructions has to go. The plaintiffs do not dispute that the person in management may carry out the usual repairs, plastering, etc. The learned Subordinate Judge has missed the principles that should guide the determination of the issues involved in a case of this kind. It is needless to grant any injunction against the defendant restraining him from changing the nature of the trust as prayed for in the plaint as the defendant who had been placed in management of the temple is no more. The charges and allegations were against him personally. In the circumstances, in my view, the relief of declaration is more than ample to protest the character of the institution.

12. In the result, the decree of the trial Court granting a declaration in favour of the plaintiffs that the suit temple is a private family temple of the parties is restored, and the decree of the lower appellate Court set aside to the extent further reliefs were added. In the circumstances there will be no order as to costs.

13. No leave.


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