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Judgment
R. Karuppiah, J.—The appellants, who are the defendants in O.S. No. 273 of 1991, filed this Appeal Suit, as against the Judgment and
Decree passed in the above said suit on 25.10.1995, by the Subordinate Judge at Periyakulam. For the sake of convenience, the parties arrayed in
the original suit before the trial Court are referred in this appeal.
The respondent/plaintiff filed the statutory suit u/s 70(1) of Tamil Nadu HR & CE Act, 1959 seeking relief i.e., to set aside the order of the first
defendant passed in R.P. No. 20 of 1990 dated 16.08.1991, by holding that the third defendant is entitled to get possession of three idols, namely,
Sri Valli, Deivanai, Subramaniar from the plaintiff u/s 101 of the Act and for costs.
Briefly the case of the plaintiff, is that the plaintiff is the hereditary trustee of Sri. Surilivelappar @ Subramaniaswamy Temple situated at
Cumbum. The temple having possession of three metallic idols of Sri. Subramaniaswamy, Valli, Deivanai among other idols and properties. They
are found entered in the Register of Properties approved by the Assistant Commissioner, H.R. & C.E. (Administration) Department, Madurai in
Memorandum No. 7944/49-1, dated 31.10.1949. The third defendant claiming to be the fit person, appointed as such by the Assistant
Commissioner, H.R. & C.E. (Administration) Department, Madurai in respect of Sri Suruli Vellappar Temple, Surulimalai, took out an application
in terms of Section 101 of the Tamil Nadu H.R. & C.E. Act 1959, in M.P. No. 4 of 1987 on the file of the Deputy Commissioner, H.R & C.E.
(Administration) Department, Madurai i.e., 2nd defendant for the issue of a certificate in respect of the metallic idols of Sri. Subramaniaswamy,
Valli, Deivanai, which are admittedly in possession of the plaintiff in his capacity as the hereditary trustee of Sri Surulivelappar @ Subramania
Swamy Temple, Cumbum. The plaintiff denied the above said claim before the second defendant i.e., the Deputy Commissioner, as the third
defendant is not a legal entity so as to institute any proceeding in his official capacity and he is not a juristic person and hence not entitled to be in
possession, within the meaning of Section 101 of the Act and the above said petition in M.P. No. 4 of 1987 is not maintainable. However, the
second defendant in the above said suit, allowed M.P. No. 4 of 1987 on 30.09.1989 and directed to issue certificate in respect of above three
idols as prayed for. Aggrieved by the said order, the plaintiff filed a revision before the first defendant i.e., the Commissioner. But the
Commissioner dismissed R.P. No. 20 of 1990 on 16.08.1991. According to the plaintiff, the first defendant has not properly considered the scope
of Section 101 of the Act and the first defendant failed to consider the fact that as per Ex. B4, the Register of properties, the three idols are all
along in the possession of the plaintiff and his predecessors. But the first defendant has wrongly held that the plaintiff has not obtained any order u/s
63(b) of the Act. The plaintiff is the hereditary trustee of main temple at Cumbam and he deemed to be the hereditary trustee of the Subramaniar
Temple and therefore, the possession of three idols with the plaintiff is quite legal and the third defendant cannot claim for possession over the three
idols. It is also averred in the plaint that on the first of Chitrai every year the celebration is conducted at main temple at Cumbum as the three idols
are taken to the sub-temple at Surulimalai and after worship there, they are brought back to the main temple for the safe custody and used the
three idols during festival in the main temple. This has been the practice from generation to generation. Therefore, the order of first defendant
cannot be sustained in law and hence the Suit.
The appellants 1 and 2, who are the defendants 1 and 2 in the above said suit filed common written statement, in which, it is stated that the suit
is not maintainable u/s 70(1) of the Act and Section 80 of C.P.C. Further stated that if at all any grievance, it is to be challenged only by way of
revision petition before the Government u/s 114 of the Tamil Nadu H.R. & C.E. Act, 1959. It is also denied in the written statement that the
plaintiff is a hereditary trustee of the temple. According to the defendants, the 3rd defendant filed an application before the second defendant, u/s
101 of the H.R. & C.E. Act 22 of 1959 in the capacity of Executive Officer and not as fit person. The Assistant Commissioner has initiated action
with a view to take up the administration in Surulivelappar temple, Surulimalai, appointing the Executive Officer of Arulmighu Kambarayaperumal
Temple as Fit person to the suit institution in his order R.C. No. 7609/1980 A4 dated 31.03.1981. Aggrieved by the said order, the plaintiff filed
an O.P. No. 130 of 1981 and the above said O.P. was dismissed as not pressed on 05.09.1983. No further action was taken by the plaintiff. The
first defendant has initiated action to appoint the Executive Officer of Arulmighu Kambarayaperumal Temple, Cumbum, as Executive Officer of
Arulmighu Subramani Swamy Temple, Surulimalai u/s 45(1) of the H.R. & C.E. Act 22 of 1959 and also grouped the suit institution with
Arulmighu Kambarayaperumal Temple, Cumbam. No action was taken by the plaintiff against grouping of the suit institution. The second
defendant in his L.Dis. 6301/86 C3, dated 28.05.1986 has ordered to handover the suit mentioned three idols to the suit institution and the plaintiff
has not carried out the orders. It is further averred in the written statement that once temples are bifurcated it is obligatory on the part of the
administration to specify and vest all the properties of institution by a separate order. The second defendant had issued a certificate u/s 101 of HR
& CE Act to effect further proceedings. Hence, the order passed by the 1st defendant is correct. Proper Court fee also not paid. Therefore,
prayed for dismissal of the suit.
The third defendant i.e., Commissioner, filed separate written statement, in which, it is stated that the suit suffers for want of a valid notice and
the plaintiff cannot restrain the third defendant from taking delivery of idols which are kept for safety at Cumbum as Surulivelappar Temple has no
building for keeping precious idols. It is further stated that the plaintiff has no title in the idols and his suit in his individual name is also not
maintainable. It is also admitted that the idols are belonging to Suruli Velappar Temple at Suruli Malai. The plaintiffs earlier suit was withdrawn and
his applications u/s 63(b) were dismissed and no suit was filed against the orders u/s 70(1) and hence the plaintiff is estopped in filing the present
suit. Plaintiff is not a hereditary trustee of Suruli Velappar Temple and the idols belong to the third defendant alone and the Surulivelappar Temple
is neither attached nor subsidiary to an alleged main temple at Cumbum. The plaintiff has allowed the alleged right to lapse by time ever-since the
dismissal of his applications in 1981 and the suit is also barred. Therefore, prayed for dismissal of the suit.
The Trial Court framed the following four issues, viz.,
(1) Whether the order passed by the first defendant dated 16.08.1991 in R.P. No. 20/90 is liable to be rejected as prayed in the plaint?
(2) Whether the suit is not maintainable u/s 114 of Hindu Religious and Charitable Endowment Act?
(3) Whether the suit is not maintainable as notice u/s 80 of the CPC has not been issued?
(4) Whether the proper Court Fee is paid or not?
(5) What are all the other relief the plaintiff is entitled to?
Before the trial Court, on the side of the plaintiff, the plaintiff himself deposed as P.W. 1 and marked 12 documents as Exs. A1 to A-12. On the
side of the defendants, one witness was examined as D.W. 1 and marked one document as Ex. B. 1.
The Trial Court has discussed the above said oral and documentary evidence on either side and finally decreed the suit as prayed for by the
plaintiff. Aggrieved over the above said decree and judgment, passed by the Trial Court, the appellants, who are the defendants in the above said
suit, filed this Appeal Suit.
Heard the learned counsels appearing on either side and perused the materials available on record.
Learned counsel for the appellants/defendants mainly contended that the Trial Court ought to have found that the idols of Sri.
Subramaniaswamy, Valli, Deivanai, are belonging to Surulivelapar Temple, Surulimalai, and as such, the plaintiff, who is the hereditary trustee of
Sri. Surulivelappar @ Subramaniaswamy Temple at Cumbam, is not entitled to have possession of the same. Further the learned counsel pointed
out that the plaintiff does not claim that the subject idols belonging to Sri. Subramaniaswamy Temple at Cumbam but his claim is that he is entitled
to be in possession of the idols, since the Surulivelappar Temple, Surulimalai is the sub-temple of Subramaniaswamy Temple at Cumbam. Further,
the learned counsel for the defendants submitted that the trial Court ought to have found that the plaintiff, who was in administration of Suruli
Velappar Temple at Suruli Malai, was removed due to his misconduct on 02.03.1981 and the administration is only with the third defendant.
Further submitted that the suit filed by the plaintiff is barred u/s 11 of the Code of Civil Procedure, in view of the proceedings in O.A. Nos. 16 and
31 of 1981, before the Deputy Commissioner, H.R. & C.E., Madurai. Therefore the finding of trial Court that those idols belonging to the Sri.
Subramaniaswamy Temple at Cumbam, in the absence of any material, is not correct and therefore, prayed for allowing the appeal and dismissed
the above said suit.
The points for consideration in this appeal are that;
(1) Whether the subject idols, namely, Sri. Subramaniaswamy, Valli, Deivanai, belonging to Subramaniyar Temple at Cumbam or belonging to
Surulivelappar Temple, Suruli?
(2) Whether the plaintiff is entitled to relief sought for in the plaint as a hereditary trustee of Sri. Subramaniyar temple at Cumbam?
The Temple viz., Suruli Velappar Temple @ Subramaniar Temple at Cumbam shortly referred as Subramania Swamy Temple and Suruli
Velappar Temple at Suruli Malai referred as Suruli Velappar Temple hereunder. Admittedly, Subramania Swamy Temple situated at Cumbam,
Suruli Velappar Temple situated at Suruli Malai, 6 k.m., away from Cumbam. The plaintiff filed this suit only relating to three metallic idols viz., Sri
Subramania Swamy, Valli, Deivanai. According to the plaintiff, the above said three idols belongs to Subramania Swamy Temple situated at
Cumbam. But the defendants contended that the above said three idols belonging to Suruli Velappar Temple situated at Surulimalai and only for
safe custody and the above said idols kept in Subramania Swamy Temple. Therefore, the main question to be decided in this appeal is whether the
above said three idols belonging to Subramania Swamy Temple at Cumbam or Suruli Velappar Temple at Suruli?.
It is not in dispute that the plaintiff is the hereditary trustee of Subramania Swamy Temple at Cumbam. It is also admitted that the plaintiff
originally hereditary trustee of Suruli Velappar Temple but due to certain allegations in the temple administration, the plaintiff was terminated from
the capacity of hereditary trustee and appointed the Executive Officer of Arulmigu Kambaraya Perumal Kovil as fit person for Suruli Malai Temple
at Suruli Malai.
The plaintiff, challenging the above said dismissal and for seeking appointment of trustee for Suruli Malai Temple, filed two O.Ps., i.e., O.P.
Nos. 16 and 31 of 1981. Both the petitions were dismissed and become final. Therefore, the plaintiff is not a hereditary trustee of Suruli Velappar
Temple situated at Suruli Malai. But it is not in dispute that the plaintiff is the hereditary trustee of Subramania Swamy Temple at Cumbam.
In the above said circumstances, the 3rd appellant herein, who is the Executive Officer appointed as fit person for Suruli Velappar Temple filed
a petition in M.P. No. 4 of 1987 before the 2nd respondent viz., the Deputy Commissioner, HR & CE Administration Department for a direction
to handover the three idols viz., Sri Subramania Swamy, Valli, Deivanai by contending that the above said three idols belonged to Suruli Velappar
Temple at Suruli Malai and only for safe custody, the above said idols kept in custody at Cumbam Subramania Swamy Temple and therefore,
prayed for a direction to handover the three idols to the 3rd defendant u/s 101 of HR & CE Act. The 2nd defendant viz., the Deputy
Commissioner, has passed an order in the above said proceedings and directed to handover the idols to the 3rd defendant as prayed for in the
above said O.P. Aggrieved over the above said direction given by the 2nd defendant, the plaintiff filed R.P. No. 20 of 1990 before the first
defendant i.e., Commissioner. But the first defendant dismissed the above said R.P. No. 20 of 1991 on 16.08.1991. Challenging the above said
proceedings of the first and second defendant, the plaintiff has filed this Suit for setting aside the orders passed by the defendants 1 and 2.
The trial Court after considering both the oral and documentary evidence held that as per Ex. A1 document, the property register of
Subramania Swamy Temple at Cumbam, the above said three idols are belonging to Subramania Swamy Temple at Cumbam and rejected the
contention of the appellants i.e., the above said three idols are kept at Subramania Swamy Temple at Cumbam only for safety purpose and
therefore, decreed the suit filed by the plaintiff and set aside the impugned orders passed by both the first and 2nd defendants.
The learned counsel for the appellants/defendants submitted that the findings of the trial Court viz., the three idols i.e., Sri Subramania Swamy,
Valli, Deivanai, only belonging to Suruli Velappar Temple at Suruli Malai but only for the safe custody, the above said items kept in the
Subramania Swami Temple at Cumbam and therefore, the orders passed by the appellants i.e., the Commissioner and the Deputy Commissioner
are valid in law. The above said fact is not correctly considered by the trial Court and wrongly held that the three idols are belonging to
Subramania Swami Temple at Cumbam and therefore, prayed for setting aside the decree and judgment passed by the trial Court.
Per contra, the learned counsel appearing for the plaintiff submitted that the first defendant and 2nd defendant viz., the Commissioner and the
Deputy Commissioner, without any basis or any documentary evidence, passed the impugned orders and the trial Court has correctly considered
the oral evidence and also the documentary evidence mainly Exs. A1, A4, A5, A6 and A12 and correctly held that both the temples are separate
temples and the three idols are only belonging to Subramania Swami Temple at Cumbam and the above said fact is proved by documentary
evidence but the defendants herein have not proved that the Suruli Malai Velappar Temple is sub-temple of Cumbam Subramania Swami Temple
and therefore, the judgment and decree passed by the trial Court is valid in law. No interference needs in the above said findings.
As already discussed, the Subramania Swami Temple situated at Cumbam, Suruli Velappar Temple, Surulimalai is situated 6 k.m., away from
Cumbam. On the side of the plaintiff has produced Ex. A1 property register of Subramania Swamy Temple at Cumbam, in which in page No. 14,
the three idols viz., Sri Subramaniar, Valli, Deivanai are mentioned. It is not the case of the defendants that the above said document is forged
document or the above said idols relating to the Suit are not entered in the above said register. Therefore, the trial Court has correctly discussed in
detail about the provisions of Section 38 of HR & CE old Act and Section 29 of amended Act and as per the above said provisions, the three
idols shown in the above said temple property register maintained, as per the above said provisions. Further the plaintiff has marked Ex. A4 to A6
and A12 to prove that the plaintiff is hereditary trustee of Cumbam Subramaniar Swami Temple. Therefore, the trial Court has discussed about the
oral testimony of P.W. 1 and also the above said documentary evidence viz., Ex. A4 to A6 and A12 and correctly held that the plaintiff has
proved that he is the hereditary trustee of Subramania Swami Temple at Cumbam and the three idols are belongs to Subramania Swamy Temple
situated at Cumbam.
Per contra, on the side of the defendants have not at all produced any documents to prove that the above said three idols viz., Sri
Subramaniar, Valli, Deivanai, belonging to Suruli Velappar Temple at Surulimalai and only for the safe custody, the above said idols are kept in
Subramania Swamy Temple at Cumbam, except the oral interested testimony of D.W. 1, as rightly contended by the learned counsel for the
plaintiffs. The first and 2nd defendants not all considered the above said facts and without any basis and any evidence passed orders, as if the
above said three idols are belonging to Suruli Velappar Temple at Surulimalai.
Admittedly, the plaintiff was removed from the hereditary trustee only relating to Suruli Velappar Temple situated at Surulimalai and not Sri
Subramaniar Temple at Cumbam. Therefore, the above said removal of plaintiff is not affected to get relief seeking in this Suit. The contention of
the defendants i.e., the three idols viz., Sri Subramaniar, Valli, Deivanai are belongs to Suruli Velappar Temple at Surulimalai and only the idols are
kept in the Sri Subramaniar Temple at Cumbam for safe custody, is not correct and therefore, the order passed by the 1st and 2nd defendants,
directing the plaintiffs to handover the three idols to the 3rd defendant viz., the Executive Officer, by the impugned order, dated 16.08.1986 in
R.P. 20/1990 and by the order dated 13.09.1989 passed in M.P. No. 4 of 1987 respectively are not valid in law and therefore, the above said
idols viz., Sri Subramaniar, Valli, Deivanai, belonging to Sri Subramania Temple at Cumbam and not belonging to Suruli Velappar Temple at
Surulimalai and answered the first point in favour of the plaintiffs, against the defendants.
With regard to second point for consideration, the plaintiff is entitled to the relief sought for in the Suit, since the plaintiff has proved that the
three idols are belonging to Suruli Subramania Swamy Temple at Cumbam. But the defendants failed to prove their contention that these idols are
belonging to Suruli Velappar Temple at Suruli Malai. Further, the defendants have miserably failed to prove the legal questions raised by them, as if
the suit is not maintainable, the trial Court has also discussed in detail in all the questions raised by the defendants and rejected the above said
contention. Therefore, the plaintiff is entitled to the relief sought for in the plaint and answered this point also in favour of the plaintiff and as against
the defendants.
In view of the above said findings, the subject idols viz., Sri Subramaniar, Valli, Deivanai, belonging to Sri Subramaniar Temple at Cumbam, as
submitted by the learned counsel for the plaintiffs and not belonging to Suruli Velappar Temple at Surulimalai, as contended by the learned counsel
appearing for the defendants and the plaintiff is entitled to the relief sought for in the plaint and therefore, the decree and judgment passed by the
trial Court is to be confirmed and this Appeal Suit is to be dismissed. In the result, the Appeal Suit is dismissed and the Judgment and Decree
made in O.S. No. 273 of 1991, dated 25.10.1995, on the file of the Subordinate Court at Periyakulam, is confirmed. No costs. Consequently,
connected miscellaneous petition is closed.