Judgment:
S. Tamilvanan, J.
1. The appeal is directed against the Judgment and Decree, dated 02.05.1980 made in O.S. No. 6 of 1978 on the file of the Sub Court, Nagapattinam.
2. The appellant herein was the defendant before the trial court. The suit was originally filed by the first respondent herein before the trial court. After his demise, his Legal Representatives have been impleaded as respondents 2 to 7. As per the case of the plaintiff, a trust known as Gopalakrishna Madam (Mutt) at Ayyadimangalam is his family trust, founded by his grand father, erstwhile hereditary trustee, by name Chinnasamy Naidu, as per the registered Will, dated 22.05.1897, executed by him. It has been further stated that the building of the Madam was constructed in a private land belonged to the respondents' family and a portrait of Lord Gopalakrishna, had been removed from the ancestral house and was fixed by hung in the Madam and that there was no dedication of any property.
3. According to the respondents, the expenses being incurred towards the performance of the object of the trust is that a small portion of the income from the properties and a major portion of the properties, according to the plaintiff was left by Chinnasamy Naidu only for the purpose of discharging the family debts. It is further averred that the plaintiff created a trust deed, dated 07.06.1934 by means of a registered document, by allotting an extent of 6.78 acres of land, exclusively for performing the object of the trust. As per the Will of Chinnasami Naidu, the trust had to perform daily poojas and nevedhanam to the family deity, Lord Gopalakrishna in the Madam and to maintain Thanneer Pandal charity, on the eve of Chittraparuvam, for the benefit of the public and also for feeding Brahmins on Dwadasi days. According to the plaintiff, he has been performing the above said trust activities, except feeding Brahmins, as they were not available to be fed. However, he is feeding the poor irrespective of any community, on Dwadasi day. According to the plaintiff, nobody else makes any contribution for the maintenance of the Madam and pleaded for declaration that it is not a religious trust or religious institution as defined in the Hindu Religious and Charitable Endowment Act (herein after referred to as the Act).
4. As the Assistant Commissioner, HR & CE, Nagapattinam, had initiated procaeeding for appointment of an outsider as trustee, the plaintiff had filed the petition in O.A. No. 81/74, seeking declaration that the plaintiff Madam is not a religious institution as defined in the Act, but the same was dismissed by the Deputy Commissioner and on appeal in A.P. No. 152 of 1975, the Commissioner, HR & CE, Chennai, confirmed the order passed by the Deputy Commissioner and therefore, the statutory suit was filed by the first respondent/plaintiff.
5. In the written statement filed by the appellant, the Will dated 22.05.1897, executed by Chinnasami Naidu has not been disputed and they have further stated that the Brahmins performing poojas should be paid 36 kalams of paddy every year. Apart from that on Dwadasi day, not less than 5 Brahmins should be fed and on Chittrapournami day, Thanneer Pandal dharmam (charity) be performed for 10 days for the benefits of the public. According to the respondents, since Chittrapournami festival is celebrated at Ettukudi Lord Murugan temple, the distribution of butter milk or drinking water to the public at that time cannot be constructed as a religious charity attached to the Hindu festival.
6. According to the appellant/defendant, the beneficiaries of the trust are public and Brahmins performing poojas, who are also not the family members of the respondents and as per the trust deed, dated 07.06.1934, 6 acres and 67 cents have been absolutely dedicated to the dharmams (charities) and therefore, it is a religious charity of specific endowment and the appellant has got every right to appoint a non-hereditary trustee to administer the trust.
7. It is seen that the plaintiff had examined himself as P.W. 1, apart from marking Exs. A.1 to A.5. On the side of the appellant/defendant, no one was examined and no document was marked. The trial court has framed the first issue, stating whether the suit trust is not a religious institution, as defined in the Act, and it has been held by the court below that the property dedicated to Thanneer Pandal dharmam will not come under the definition of specific endowment, so as to attract the provisions of Act 22 of 1959, since there is no specific mention in the Will that the same has to be exclusively intended for the benefit of Hindus alone. With the above finding, the court below has held that there was specific endowment relating to the feeding of Brahmins is a religious institution as defined in Clause 18 of Section 6 of the Act 22 of 1959 and the other dharmams (charities) relating to the worship of Gopalakrishna Portrait and the Thanneer Pandal are not religious in nature and accordingly, the issue has been decided by the trial court.
8. The trial court has held in the impugned judgment that a single endowment for the three dharmams has been made under the original of Ex.A.5 and until an enquiry is made under Sections 63(f) and (g) of the Act and apportionment of the property dedicated to the religious uses is decided, no proceedings under the provisions of 63 (a) (b) (c) and (d) can be instituted and decided.
9. As per the registered Will, dated 22.05.1897, marked as Ex. A.3, Chinnasamy Naidu had dedicated the property of 6.67 acres of land for Gopalakrishna Mutt. As per the Will, after his demise, his son had to perform the charities by installing the portrait of Lord Gopalakrishna. As per the Will, a gift settlement deed was got registered in the name of Lord Gopalakrishna deity and the hereditary trustee G. Venkatachalapathy had been performing the charities. Ex. A.5 is the certified copy of the trust deed, dated 07.06.1934, executed by late Venkatachalapathy Naidu s/o. Gopalakrishna Naidu, whereby it is specifically stated that only his legal heirs shall be the hereditary trustees of the Trust and perform the charity, without any right to alienate or encumber the property. The document further reads that 36 kalams (18 bags) of paddy per year has to be given to the brahmins, who perform pooja at the Gopalakrishna deity. Similarly, on all Dwadasi days, five brahmins should be feeded, accordingly, per year 120 Brahmins shall be given such feeding. During summer season, 10 days prior to chitraparuvam, Thaneer pandal charity, so as to provide butter milk or drinking water to the needy shall be arranged, as per the trust deed. It is not in dispute that the suit property has been specifically dedicated to Sri Gopalakrishna deity, in the name of 'Chatiram Trust.'
10. Mr. W.C. Thiruvengadam, learned Counsel appearing for the respondents submitted that there is no idol of Gopalakrishna in the chatiram or mutt, only a portrait of Lord Gopalakrishna has been placed for the worship of the family members of the respondents. According to the learned Counsel, it is not a Mutt, Temple or specific endowment, as defined under Section 6(18) of the H.R. & C.E., Act and the charity of thaneer pandal during chitraparuvam (summer) outside Lord Gopalakrishna madam is only a charity secular in nature, since providing butter milk or drinking water in the form of thaneer pandal would be to any person, irrespective of his religion or caste. According to the learned Counsel, the said charity will not come under the purview of a religious institution, under the H.R. & C.E., Act. In such circumstances, the charity requires proper allocation or apportionment, under Section 63(f) and (g) of the Act (22 of 1959).
11. Section 63 of H.R. & C.E., Act reads as follows:
63. Joint Commissioner or Deputy Commissioner to decide certain disputes and matters - Subject to the rights of the suit or appeal hereinafter provided, the Joint Commissioner or the Deputy Commissioner, as the case may be, shall have power to inquire into and decide the following disputes and matters:
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) whether any institution or endowment is wholly or partly of a religious or secular character; and whether any property or money has been given wholly or partly for religious or secular uses; and
(g) where any property or money has been given for the support of an institution which is partly of a religious and partly of a secular character, or the performance of any service or charity connected with such an institution or the performance of a charity which is partly of a religious and partly of a secular character or where any property or money given is appropriated partly to religious and partly to secular uses, as to what portion of such property or money shall be allocated to religious uses.
As per Section 63 of the Act, Joint Commissioner or Deputy Commissioner, as the case may be, is empowered to enquire and decide, whether the institution or endowment is fully or partly of religious or secular character.
12. As per Sub-section (g) of Section 63, if any property or many can be given in support of an institution, which is partly of religious or partly of secular character, then the money given has to be appropriated partly to religious or partly to secure uses. What portion of such property or money shall be allocated to religious uses, shall be decided by Joint Commissioner or Deputy Commissioner of H.R. & C.E., Department.
13. The suit had been filed under Section 68 and 70 of H.R. & C.E., Act, XXII of 1959, relating to Order VII Rule 1 C.P.C, seeking cancellation of the order passed by the Deputy Commissioner, H.R. & C.E., Nagapattinam, dated 10.03.1975 in O.A. No. 81 of 1975, which was confirmed by the appellant herein, by his order in A.P. No. 152/75, dated 12.10.1977 and also for permanent injunction restraining the appellant herein or his subordinate officials, from interfering with the administration and management of the trust known as Gopalakrishna Madam, Ayyadimangalam, Anaikudi Vattam. The prayer in the suit was to cancel the order passed by the appellant and for permanent injunction in respect of plaintiff's management, performance and administration of the Trust known as Gopalakrishna Madam. There is no prayer for declaration.
14. Learned Counsel for the respondents, in support of his contention cited the decision, C. Nallasivan Pillai v. The Commissioner, Hindu Religious and Charitable Endowments Admn., Dept. Ms. and Anr. reported in 2005 (2) TNLJ 375, wherein a Division Bench of this Court has held that as per Section 6(20) of H.R. & C.E., Act, merely because Government had appointed non-hereditary trustees, which cannot be the sole basis to determine the character of the temple.
15. As per Ex. A.3, dated 22.05.1897, Chinnasamy Naidu had created the charity, by way of his registered Will, subsequently, as per Ex. A.5, dated 07.06.1934, Venkatachalapathy Naidu, s/o Gopalakrishna Naidu and grand son of Chinnasamy Naidu has executed the registered deed, original of Ex. A.5 in the name of 'Chatiram trust', whereby authorised his descendants to be the hereditary trustees to perform the charity without the power alienating or encumber the property dedicated for the charity.
16. Considering the arguments advanced by both the learned Counsel with reference to the evidence available on record, this Court is of the view that there are elements to show that the institution or endowment is wholly or partly of religious or secular character. Similarly the property given in the support of the institution is partly of religious and partly of secular character, since the charity of providing butter milk or drinking water during chitraparuvam (summer) to needy persons, irrespective of his religion, is secular in nature and certain other charities are religious in nature.
17. Learned Counsel appearing for the appellant during the course of his argument drew the attention of this Court to Tamil Nadu Act 10 of 2003 with regard to Section 6(18) defining a religious institution.
18. Considering the evidence both oral and documentary and also the facts and circumstances, this Court is of the view that decision under Section 63(f) and (g) of the Act is necessary and therefore, to meet the ends of justice, this Court is of the view to allow this appeal and set aside the impugned Judgment and Decree, so as to remit back the matter to the original authority, namely, Deputy Commissioner, H.R. & C.E., Nagapattinam to conduct proper enquiry. The Deputy Commissioner, after providing reasonable opportunity to the interested parties and also after making necessary publication in a local Tamil newspaper shall decide the dispute with reference to the charitable endowment, relating to the suit property and dispose the same, according to law, with reference to Sections 63 (f) and (g) of the H.R. & C.E., Act, within a period of six months from the date of receipt of the copy of this Judgment.
19. This appeal is allowed with the above observation. However, there is no order as to costs.