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Judgment
G.M. Akbar Ali, J.—The appeal suits are filed against the judgment and decree dated 13.06.2005 passed in O.S. Nos. 433 and 435 of
2003 on the file of the Principal Subordinate Court, Tirunelveli.
The subject matter of the appeals under consideration is whether, an institution viz., ""Arunachaleswarar Samathi Koil"" or otherwise known as
Arunachaleswarar Koil Samathu"" as mentioned in various records, is a public religious institution as defined u/s 6(20) of the Hindu Religious and
Charitable Endowment Act (herein after called as ""Act""). The Hindu Religious and Charitable Endowment Department, represented by the
Appellants (herein after called as ""Department"") maintain that the subject matter (herein after called as ""the institution"") is Temple and a religious
institution as defined u/s 6(20) of the Act.
On the contrary, the ""Huqdar"" and his predecessor in title as well as the subsequent purchasers would maintain that the institution is only a
Samathu"" or ""Samadhi"" pure and simple. The dispute between the department and the persons in the management of the institution is going back
to the year 1976, when the department declared that the institution was brought under the control in 1976 on the basis of a preliminary report of an
Inspector of the Department in L. Dis. 156/76. However only in the year 1985 the Assistant Commissioner of the Department issued a notification
in R.C. No. 18122/80 D2 dated 28.11.1985 calling for appointment of non-hereditary trustees for the institution and then the ""Huqdar"" issued a
legal notice on 12.12.1985 opposing such appointment. The matter was closed and there after, the then ""Huqdar"" one Iyaa Subramaniya Mudaliar,
the father of the Plaintiff/Respondent in O.S. No. 433 of 2003 sold extensive of lands in Survey No. 15/5B of a total extent of 3.39.5 hectares to
various persons, who are the Plaintiffs/purchasers in O.S. No. 435 of 2003 under various sale deeds. The trouble started when extensive and
valuable lands were sold by the said Iyya Subramaniya Mudaliar and the department once again initiated proceedings. Iyya Subramaniya Mudaliar
filed O.A. Nos. 14, 15 and 16/95 before the Department in respect of Arulmegu Kamatchiamman Temple, Arulmegu Viswanathasarni Temple,
Arulmegu Mupidathiamman temple u/s 63A of the Act to declare the temples as a private institutions and later altered the prayer u/s 63B to
recognise him as Hereditary Trustee. Iyya Subramaniya Mudaliar the then ""Huqdar"" died on 24.02.2000. The Assistant Commissioner, HR&CE,
Tirunelveli in his proceedings in R.C. No. 7773/2001, dated 23.08.2001 directed the Inspector, Palayamkottai to enquire and submit a report. An
enquiry was conducted by the Inspector and a report was also promptly filed. The Respondent, who is the son of the said Iyya Subramaniya
Mudaliar, filed a petition u/s 63A of the Act before the Joint Commissioner, HR&CE, Tirunelveli to declare the PRESWENT institution is not a
religious institution or temple under the provisions of the Act and the petition was taken on file in O.A. No. 2 of 2002. The then Joint
Commissioner, after a detailed enquiry found mat institution is only a ""Samathi"" and not a religious institution as defined u/s 6(20) of the Act.
The Special Commissioner, HR&CE, Chennai, initiated a suo moto revision u/s 69(2) of the Act, in S.M.R. No. 5 of 2003. By an order dated
30.09.2003, he set aside the order of the Joint Commissioner and held that the institution is a religious institution as defined u/s 6(18) and 6(20) of
the Act.
Aggrieved by the said order, the Respondent filed the present statutory suit u/s 70 of the Act before the Sub Court, Tirunelveli for the relief as
stated above and the purchasers along with the another son of the said Iyya Subramaniya Mudaliyar had filed a suit in O.S. No. 435 of 2000 u/s
17(A1) of the Act for a similar relief.
The suit institution with the extensive nanja and punja lands in various survey numbers, situate in V.M. Chathram Village otherwise known as
Vijayaragava Mudaliyar Chathram. Indisputably the entire Village was an Inam Village and the name itself denotes an establishment of a Chatram
and Temples thereon in a Village called Vijayaragavapuram. The earliest ""Huqdar"" was one Pumbavai Viswanatha Mudaliyar. This fact is
established under a ""will"" dated 04.04.1877, which is marked as Ex.A2. The genealogical tree, which is marked as Ex.B1 would show the name of
one Vijayaragava Mudaliayr in the year 1782. Therefore, Chatram and the existence of Arulmigu Kamatchiamman Temple, Arulmigu
Viswanathasami Temple, Arulmigu Mupidathiamman temple and their characters are not disputed. The institution relates to a Samathi of
Poompavai Arunachala Mudaliar, the testetor of the will of the year 1877, who died in the same year in the month of Panguni a Wednesday. There
are also the Samathi of his wife Visalatchiammal and their pet-dog and there is also a Samathi of AyyaSami Mudaliyar (father of the Plaintiff) and
also a Samathi of Thaiyal Nayagi Ammal (mother of the Plaintiff). These Samathies are situated in Survey No. 15/8. The character of the entire
structures with all these samathies referred to as Arunachleswarar Samathi Koil or Arunachleswarar Koil Samathi or Arunachalamudaliyar
Samathu Koil is in dispute. However, the real dispute seems to be the extensive of land attached to the institution. Though mere are other religious
institutions under the name Arulmigu Kamatchiamman Temple, Arulmigu Viswanathasami Temple, Aruliegu Mupidathiamman Temple established
by the Huqdars, the entire property stands in the name of the above said Huqdars of the institution and therefore, it has become necessary to
decide the character of the institution.
Indisputably, the Samathi of Poompavai Arunachala Mudaliary was established in the month of Panguni of the year 1877 evidenced by the
inscription thereon. Thereafter, the other four Samathies of the successor Huqdar and even a Samathi of a petdog was also established later.
Extensive arguments were advanced by Mrs. Chellammal, learned Additional Advocate General to drive home the point that the entire structure
is only a temple known as Arunachaleswarar Temple. The learned Additional Advocate General relied on various documents in which, the
institution is referred as Arunachaleswarar Koil Samthi or Arunachaleswarar Samthi Koil. The learned Additional Advocate General relied on the
Will"" of the year 1877 of Poompavai Arunachala Mudaliar and pointed out that the earliest establishment was only Cha-tram and Temple and the
properties were Inam properties, which belong to the Temple. The learned Additional Advocate General pointed out that under the said ""Will"" the
Huqdars are to maintain the temple from the income of the Inams. The learned Additional Advocate General also pointed out that the next Huqdar
namely, Shanmugavel Mudaliar had also executed a ""Will"" dated 20.04.1923, which is marked as Ex.A3 under which, it was categorically stated
that the succeeding Huqdar shall maintain the Temple and Chatram from the lands given under the patta belonging to Arunachaleswarar Samathu
Koil. The learned Additional Advocate General pointed out that in all the revenue records including the proceedings of the Settlement Thasildar,
which is marked as Ex.A10, would show that the properties belonged to Arunachaleswarar Temple and in the settlement proceedings Ayya
Subramaniya Mudaliar represented the Temple as hereditary trustee. The learned Additional Advocate General further pointed out that in the land
acquisition proceedings, the said Ayya Suramaniya Mudaliar had admitted the fact that the property belonged to the temple and he always claimed
himself as a hereditary trustee.
The above arguments were countered by Mr. T.V. Ramanujam, Senior counsel for the Respondents. The learned Senior counsel pointed out
that the suit institution in question is a private institution in character and there is no dedication in favour of the public and the Assistant Settlement
Officer has given patta in favour of the institution represented by the family members and it is a ryathwari patta and whatever be the nomenclature,
as Koil or Samathi Koil, the institution in question is a private institution being managed by the members of the family as private property and the
family members have been buried there. The learned Counsel also relied on the report of the Advocate Commissioner.
Therefore the only point that arises for consideration in these appeals is whether the suit institution is religious institution.
Section 6(18) of the Act, prior to the amendment, reads as follows:
(18)""religious institution"" means a math, temple or specific endowment and includes,-
(i) a samadhi or brindhavan; or
(ii) any other institution established or maintained for a religious purpose.
Explanation.
(1) ""samadhi"" means a place where the mortal remains of a guru, sadhu or saint is interned and used as a place of public religious worship;
(2) ""brindhavan"" means a place established or maintained in memory of a guru, sadhu or saint and used as a place of public religious worship, but
does not include smadhi
After amendment the definition of religious institution runs as follows;
(18) ""religious institution"" means a math, temple or specific endowment.
Therefore, we could see that the word samadhi has been removed with effect from 01.04.2008. The reasons and object of the Act would state
that in order to avoid the samadhis of persons except saintly person to be brought under the purview of the Act the amendment has been sought
for.
In Ramanasramam by its secretary G. Sambasiva Rao and Others Vs. The Commissioner for Hindu Religious and Charitable Endowments,
Madras, it was held as as follows:
That the institution in question called Mathrubootheswarasami is only a Samadhi and not a temple is established by the facts of this case. It is
admittedly the Samadhi of a Hindu Brahmin widow, viz., the mother of Sri Ramana Maharishi.
....
Such a Samadhi cannot be consecrated and Prana Prathishta done, which is essential for the installation of the idol. Otherwise, the Lingam would
be a mere piece of stone and nothing else. It is only Prana Prathishta which makes it a living God, a juristic entity, entitling it to be an object of
gift....
In 2003 (1) CTC 65 (The Commissioner, Hindu Religious and Charitable Endowments Borad, Nungambakkam, Madras and Anr. v. T.S.
Palanichamy and seven others) wherein a Division Bench of this Court has held as follows:
Each case has to be decided on the basis of the evidence placed before the court in that case and not on the basis of any non-statutory
presumption of the nature canvassed for by the State. What is crucial for the purpose of deciding as to whether the temple is a public temple or
private is the dedication to the public and the right recognised in public to offer worship at the temple as of right. That question is to be decided on
a consideration of the oral and documentary evidence in the case and not on the basis of any non-statutory presumptions.
and also relied on Radhakanta Deb v. Commissioner, (1981) 2 SCR 826 wherein the following four tests were enumerated as-
(1) Whether the user of me temple by members of the public is of right; (2)whether the control and management vests either in a large body of
persons or within the members of the public and the founder does not retain any control over the management; (3)Whether the dedication of the
properties is made by the founder who retain the control and management and whether control and management of the temple is also retained by
him; and (4)where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by
the members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.
In 2010 CIJ 156 PLJ (Asst. Commr., HR and CE./Fit Person Sri Mayuranatha Swami Temple, Tiruvanmaiyur and Anr. v. Maha Tejo
Mandala Sabha and Ors. etc.,) wherein this Court laid the following ratio on 21.12.2009 decided whether the Samathi is a religious institution or
not?
a. Samadhi of a saintly person where Guru pooja and Annadhanam are being carried on cannot be termed as either a public temple or public
endowments.
b. Installation of statute of any Hindu God without consecration alongside the Samadhi would not make it a temple.
c. To treat any Samadhi as a temple on the basis of customary practice, the customary practice should have been in existence for over several
centuries.
In 1987(4) MLJ 403 : 1988 1 L.W. 292 (Commissioner H.R. And C.E. V. Veluchamy) wherein this Court has held as follows:
It is relevant to note that worship which has grown up round the thumb of a human being does not fall within the category of religious worship.
The building of a samadhi of a tomb over the remains of a person and the making of the provision for the purpose of Gurupooja and other
ceremonies in connected with the same cannot be recognised as a charitable or religious purpose according to Hindu Law....
Therefore, we could see that catena of judgments are to the effect that a Samathi where annual and daily guru pooja alone are being carried
cannot be termed as a Temple, more particularly, as a public Temple or public Institution. Installation of statue of any Hindu God without
consecration on the Samathi would not make it a Temple. The absence of express or implied dedication in favour of public and the absence of
Karpagiraham, Vimanam, Dwajathasjambam, Pragaram and absence of performing daily pooja and Archana or any Kattalai and absence of
urchava Idol would cumulatively confer that the institution is only a Samathi and not a Temple.
In the instant case, V.N. Chatram and Temple where in existence prior to 1877 and there were properties and the ancestors of the family of
the Plaintiff were Huqdar right from 1877 and even prior. However, Poombavai Arunachala Mudaliar was buried in Survey No. 15/8 and
thereafter, his wife, pet-dog his son and his wife were also buried.
Admittedly, as per the ""Will"", annual and daily Guru poojas are being done to the Samathi. Though there is a Lingam installed on the top of the
Samathi, it isestablised that it is customary to install a Lingam on the top of the Samathi and it has no relevancy to Agamas or Sasthras. From the
evidence it is clear that the suit institution is only a Samathi and do not fit in the definition of a religious institution u/s 6(20) of the Act.
The Adangal extract would show that the patta was issued in the name of the Arunachala Mudaliyar temple, Huqdar K.A. Subramaniya
Mudaliyar.
Ex.A10 is the order of the Settlement Thaslidar under Minor Inams Act, 1963, dated 29.02.1972 and this settlement proceedings relates to
three categories of lands in 16 survey numbers. The first category relates to Ryot land of Arunachlewarar Temple represented by the hereditary
trustee viz., Ayya Subramaniya Mudal1iar; the second category relates to Ryot land in favour of Ayya Subramaniya Mudaliar and the third
category relates to private Pannai lands of the Indamdars of the land holders. The Settlement Thasildar has held that for those lands patta has been
granted to the ""Arunachaleswar Temple and Samathu"" represented by the hereditary trustee Ayya Subramaniya Mudaliar.
For the second category of lands the patta has been issued jointly in favour of Arunachaleswarar Temple and Ayya Subramaniya Mudaliar.
For third Category of Pannai land the inamdars claim was rejected. Therefore, for the first time in the settlement proceedings, the lands were
registered in favour of Arunachaleswarar Temple Samathu represented by the trustee Ayya Subramaniya Mudaliar. Ayya Subramaniya Mudaliar
was the Huqdar and therefore, referred as trustee and hereditary trustee. During the pendency of this Appeal, a register was produced by the
Appellant and a copy of the document from the archives from the Collectorate was also produced. This register would mention the institution as
Arunachaleswarar Temple.
The claim of the department seems to be, as there is a Lingam installed, the daity is known as Arunachaleswarar. This argument is untenable
for the simple reason that the Samathi was established as early as 1877 and it is customary to install a Lingam. Therefore, as far as the properties
are concerned it is in the name of Arunachaleswarar Koil Samathu and prefixing the term Koil to the Samathu will not give a character to the
samathi as a Temple. It will not also be out of context to point out that there are five Samathis in the suit survey and none of them claimed to be a
Saintly person. Therefore, the suit institution is only a Samathi and therefore, it will not come within the definition of 6(18) and 6(20) of the Act.
The point is answered accordingly.
The learned Trial Judge has correctly decided the issue and I have no reason to interfere. In the result, the appeals are dismissed. No costs.