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Judgment
S. Tamilvanan, J.—This appeal is directed against the Judgment and Decree, dated 13.11.1996 made in O.S. No. 998 of 1988 on the file
of the First Additional Subordinate Judge, Coimbatore.
The appellant herein was the plaintiff in the suit before the trial court. Aggrieved by the order of the first respondent, Commissioner, H.R. &
C.E. (Admn) Department, the statutory suit u/s 70(1) of H.R. & C.E. Act, XXII of 1959 was filed by the appellant herein.
According to the appellant / plaintiff, he is holding office as Hereditary Trustee in Sri Vinayagar Temple, situated at Eachanari Village,
Coimbatore, within the meaning of Section 6(11) and 63(b) of H.R. & C.E. Act. It is not in dispute that the temple is located in S. No. 636/2 and
633 of Kurichi village with an extent of 1-18 acres on the western side of Coimbatore - Pollachi Main Road. According to the appellant/plaintiff,
the vinayagar idol in question had been brought from Madurai to Perur for installation, nearly 150 years ago and while transporting the idol in a
hand cart, the cart was broken down and the Vinayagar idol was fallen in the sitting posture. Though the villagers made attempt to lift the idol, they
could not do so. In the result, the idol was temporarily installed and worshipped there itself. According to the appellant, his grand father Kupanda
Gounder had taken interest in the installation of the idol by erecting a thatched shed and made it for worship and was looking after the day-to-day
affairs of the temple, as Founder-cum-Hereditary Trustee. After the death of Kupanda Gounder, his son, father of the appellant Krishnaswamy
Gounder succeeded the office of the Hereditary Trusteeship in the temple and continued to hold office. After the death of the said Krishnasamy
Gounder, appellant, being his son succeeded the office as Hereditary trustee in the temple. However, the plaintiff was recognised as Vice President
and Treasurer in the year 1967 in the Tiruppani Committee, which was formed with the approval of the H.R. & C.E., Department and the
appellant took personal interest and completed the renovation work in the year 1977. He was also responsible for performing Kumbabishekam of
the Temple. Though, he was holding the post as Hereditary Trustee, Commissioner, H.R. & C.E., also appointed him as trustee of the Temple.
The H.R. & C.E., Department has also appointed an Executive Officer to the temple, u/s 45(1) of the Act.
In order to obtain a statutory declaration u/s 63(b) of the Act, the appellant had filed an application in O.A. No. 1 of 81, on the file of the
Deputy Commissioner, H.R. & C.E., Department, Coimbatore, claiming the office of Trusteeship as Hereditary, within the meaning of Sections
6(11) and 63(b) of the Act. However, the same was dismissed on 30.04.1985. Aggrieved by which, the appellant preferred an appeal u/s 69(1)
of the Act, the same was also dismissed on 11.07.1988. Aggrieved, by which, the statutory suit was filed.
In the written statement, the respondents herein have denied the claim of the appellant, stating that he had never been Hereditary Trustee of the
Temple. According to the respondents, the appellant was appointed as Hereditary Trustee only in the year 1972 and subsequently, reappointed in
the year 1975 and in the year 1979.
Mr. W.C. Thiruvengadam, learned Counsel appearing for the appellant contended that though he was appointed as trustee by the respondents
herein, he is entitled to seek a declaration that he is a hereditary trustee of the suit temple, by way of substantiating evidence. According to the
learned Counsel, there is no statutory bar in claiming hereditary trusteeship, merely on the ground that he was appointed as trustee by the
respondents. The learned Counsel further contended that originally Kupanda Gounder, was performing pooja for the vinayagar idol, by putting a
hut, subsequently, after his demise, Krishnaswamy Gounder was performing pooja till he died in the year 1946. After the death of Krishnasamy
Gounder, his son, the appellant herein is continuously doing poojas, as trustee and as such continuously being hereditary trustee for about three
generations, and performing service, as his family deity. Admittedly, there was no dedication of any property to Eachanari Vinayagar Temple and it
was worshipped only in the poromboke land, where it was originally placed for the worship.
The appellant has produced supporting documents, Exs.A.1 to A.45, apart from examining himself and P.W.2 as witnesses. Exs.A.1 to A.5 are
the receipts for the electric consumption for the service connection at Eachanari Vinayagar Temple, out of which, Exs.A.2 and A.3 relates to
24.05.1951, subsequently, according to the learned Counsel for the appellant, the appellant got telephone connection at the temple premises and
personally paid the telephone bills. Exs.A.13 shows that he was appointed as a Vice President of Tiruppani Committee in the year 1978. It is not
in dispute that the appellant had spent huge amount towards improvement of the temple, as a devotee and worshipper of the deity.
Learned Counsel for the appellant would contend that the appellant, being an industrialist is earning huge income and as such there is no
necessity for him to get any monetary benefit from the income of the temple, but, only spending his money for the Temple, however, it being his
family deity for about three generations, he filed the statutory suit for declaration, after approaching the respondents.
On the side of the respondents, one Venugopal was examined as D.W.1 and Exs.B.1 to B.4 were also marked. Ex.B.3 is a book published on
03.06.1977 by the authority of Eachanari Vinayagar Temple, wherein it has been stated that the Vinayagar Idol was installed long back, as had got
down from the cart, while it was taken from Madurai to Perur at Eachanari Village. It is seen that both the appellant as well as the respondents
have not produced any documentary evidence to show that who actually installed the deity at Eachanari Village.
As contended by the learned Counsel for the appellant, since it was a poromboke land, where the idol was installed long back and on account
of inadequate awareness, proper documents were not maintained by the ancestors of the appellant, however, the claim of the appellant would be
established by way of oral evidence, accordingly, he examined P.W.2. The further contention of the learned Counsel for the appellant is that
though the case is pending for a long time, there is no objection from the villagers and there is no rival claimants. In support of his contention, he
cited the Division Bench decision of the Hon''ble Apex Court, Madana Palo v. H.R.E. Board, Madras reported in 1946 LW 787, wherein it has
been held as follows:
Where the management of a temple has been exclusively in the hands of a family for four successive generations, the office of the trustee being held
by the head of the family for the time being, the only conclusion possible is that that family possesses the hereditary right of appointing the trustee of
the temple, which means that the temple is an excepted temple within the meaning of Section 9(5) of the Madras Hindu Religious Endowments
Act.
This Court in the decision, Babu Gurukkal v. Commr. for H.R. & C.E. Board reported in 1964 MLJ 385 has held as follows:
This is a case of two small temple of which Chelliamman Temple has no endowments whatever. Tirumudi Vinayagar has been endowed with an
extent of 1 acre 31 cents of wet land. Except for this, the Vinayagar Temple appears to own no other property. Even in respect of the land
endowed for the support of the Vinayagar Temple, the question whether it is a service inam may arise, but it does not fall to be decided in this
appeal. Often in this part of the country, small temples like these have only poojaris who, by long custom or usage, look after the affairs of the
temples, where they serve as gurukkals. They thus function in a dual capacity, namely, poojari cum trustee.
The Full Bench of the Hon''ble Apex Court in the decision, Sambudamurthi Mudaliar v. State of Madras reported in 1970 II MLJ (SC) 58,
has held as follows:
''hereditary trustee'' means the trustee of a religious institution succession to whose office devolves by hereditary right or is regulated by usage or is
specifically provided for by the founder, so long as such scheme of succession is in force.
A Division Bench of this Court in the decision, Asst. Commissioner, H.R. & C.E., v. Rajagopala Ponnapoondar reported in 1984 LW 764 ,
has held as follows:
The devolution of the office of trusteeship for generations from son to grandson is no doubt prima facie evidence that the office devolves by
succession according to laws of inheritance. So also the fact that members of a particular family held the office Dharmakartha continuously for
more than a century and there was assertion by them that it was hereditary would be good evidence that the office is hereditary. But, any such
prima facie inference would be negatived by evidence to the contrary.
From the decisions of the Hon''ble Apex Court and this Court referred to by the learned Counsel for the appellant, it is clear that even after the
appointment of trustee by the respondents, he can claim hereditary trusteeship, if he is entitled to claim such right, based on the evidence. In the
instant case, it is clear that the appellant is continuously performing his services to the Temple, since 1951, as per the evidence available on record.
However, this Court is of the view that there is insufficient evidence from both sides to decide the issues involved in this appeal.
In such circumstances, to meet the ends of justice, I am of the view that it would be proper to remit back the matter to the trial court for fresh
disposal, according to law.
In the result, the appeal is allowed and the impugned Judgment and Decree, passed by the trial court are set aside and the matter is remitted
back to the trial court for fresh disposal. The trial court is directed to provide reasonable opportunity to both sides to adduce further evidence,
both oral and documentary and dispose the same, according to law, independently, based on the evidence, within three months from the date of
receipt of the copy of this order. With regard to the administration of the temple, the status quo shall be maintained till then. No costs.