A. Ramamurthi, J.
1. The unsuccessful plaintiffs in both the courts below are the appellants.
2. The case in brief is as follows:-
The plaintiffs for themselves and also representing the public worshippers filed a suit for declaration that the lease in favour of the 2nd defendant by the 1st defendant under a document dated 20.10.1987 is null and void and a consequential injunction. The suit property is a Public Religious Trust belongs to Sri Vyasaraja Mutt, which is having the main office at Sosalai in Karnataka State(hereinafter referred to as 'the Mutt'). This Mutt is essentially a religious institution of the Madhwa Community. Vyasaraja, a saint and Philosopher, founder of the Mutt had many disciples. They were living in various places in South India preaching Madwa Philosophy and wherever they attained Mukthi, their mortal remains were interned and Samadhis were constructed and the people offer worship at the Samadhi and there were religious functions as well performed in those places of worship like Guru Pooja, etc. These Samathis were held in reverence by the devotees and daily poojas are also performed for this and sometimes Abishehams are also carried out by the devotees. The Madhwas worship Lord Krishna as their Presiding deity in their temple in the Mutt. Besides daily poojas, festival is also conducted and one such festival in the temple is Gokulashtami and this carried on for ten days. All Hindus join and they also offer worship in the temple. The Samadhis and the temple in the branches in Mutts have become places of public worship in due course of time. The members of the public offer donations to the Mutt Head when he visits the Holy places. The Mutt is a Public Religious and Charitable Trust coming under the purview and control of the Hindu Religious and Charitable Endowments Act (hereinafter referred to as HR & CE Act). Though the main Mutt is established and situated at Sosalai in Karnataka State, yet the branches in Tamil Nadu are subject to the control of the HR & CE Act prevailing in this State. This Mutt is having a branch at Kumbakonam in T.S.R.Big Street. In this place, 3 Mahants have been interned and their mortal remains are kept in these Samadhis. They are more than 100 years old and daily pooja is offered at the Samadhi and Guru Pooja is celebrated. There is a Gopuram and Praharam and a well which is called Pushkarani. There is open space on the rear side of the Samathi and it is used as Nandhavanam, where flower plants were raised. There are 7 shops in the front portion of the Mutt building and they are rented out to several persons and rent collected is used for the maintenance of the temple.
The 1st defendant is the present Madadhipathi of the Mutt and he is not maintaining the properties and neglected them. The 1st defendant wants to alienate the Mutt properties by all possible ways. The 1st defendant has no right to alienate the properties. There is no need or necessity for the 1st defendant to sell any of the properties and alienation's are not beneficial to Mutt. Pontiff of the Mutt has no right to alienate the trust properties according to his whims and fancies. The 2nd defendant is now purchasing the rear portion of the property, which was used as Nandhavanam. The 1st defendant has purported to lease out the suit property to the 2nd defendant for a period of 99 years under a lease deed dated 20.10.1987. The enquiry revealed that the 1st defendant has been substantially paid, off the record to lease out the suit schedule property to the 2nd defendant. The sacred places of Samathis and temple can never be leased out to any individual. Any lease of the trust property for more than 5 years is absolutely void and not enforceable. The 2nd defendant is going to demolish the suit property and construct building according to his choice. The 1st defendant had authorised the 2nd defendant to take execution proceedings in pursuance of the decree in O.S.No. 7 to 10 of 1982 on the file of District Munsif Court, Kumbakonam to take possession and demolish the building. The actions of the defendants are detrimental to the Trust and its properties. The plaintiffs being worshippers are interested in preserving the Mutt and its properties and they are only acting in the interest of the Mutt. There are numerous disciples and worshippers and all of them are interested in preserving the properties and hence the suit.
Defendants 1 and 2 filed separate written statement and denied the various averments made in the plaint. There is no Mutt as contemplated in para 7 of the plaint. The 3 Samadhis are not Mutt within the definition of section 6(13) of HR & CE Act. The 1st defendant being the 'Peedathipathi' is the absolute owner of the schedule mentioned property and he cannot be sued for a relief for the property at Kumbakonam. Even if the lease deed is not valid in the eye of law, it has to be challenged in Karnataka State. Vyasaraja was a human being and was the 8th Pontiff of Madvacariya Math in Mysore State. After the demise of Vyasaraja, his mortal remains were interned in a Samathi in a village in Karnataka, where it is called as 'Brindavan' for which annual Gurupoojas are being done. All the plaintiffs are not persons belonging to Madhwa community. The plaintiffs are now colluding with the tenants against whom ejectment decrees have already been obtained by the Peedathipathi in O.S.7 to 10 of 1982. In order to prevent the execution proceedings, the suit has been filed with an ulterior motive. The suit property is a Samadhi and is being called as 'Brindavan' by the members belonging to Mathwa community. The lease was executed in the interest of the institution and for its benefit. The 2nd defendant is already owning a considerable property behind the leased out property. There are 8 shops in the leased out place and the monthly rent collected is only Rs.80/=. There is no Math building or a temple for Lord Krishna in the leased out property. The building is in a dilapidated condition and to renovate the same and increase its value, the lease of the property was given. The suit is also barred legally. The jurisdiction of the Court is ousted under section 108 of HR & CE Act. The plaintiffs should seek a declaration, if so advised under section 63(a) or (c) of the Tamil Nadu Act 22 of 59. The suit is also bad for non joinder of Mutt itself. The plaintiffs have not worshipped as claimed by them. The intention should not be illusory but must arise from the allegations raised. Plaintiffs 1 and 2 have affiliation to the Philosophy and persuasion of Ragavendraswami Mutt and they are not disciples of suit Mutt. Plaintiffs 3 and 4 belong to Viswa Karma community and they cannot claim any interest in the suit Mutt. Plaintiffs 5 and 7 belong to Kalla community and they cannot also claim any interest in the Mutt. The mere fact that a person claims to participate in feeding or is allowed to worship in a temple does not convert his rights as an interest entitling him to sue. If constructions are made, they will be getting an income of Rs.1000/= per month without any investment by the Mutt. During the lifetime of the 1st defendant, no action of him can be called in question except after getting a declaration that the properties form part of a religious endowment. The plaintiffs are not entitled to claim any relief.
The trial court framed 6 issues and on behalf of the plaintiffs, P.Ws.1 to 4 were examined and Exs.A-1 to A-19 were marked and on the side of the defendants, D.Ws.1 to 3 were examined and Exs.B-1 to B-12 were marked. The trial court dismissed the suit and aggrieved against this, the plaintiffs preferred A.S.No.1 of 1989 on the file of District Court, Thanjavur and the learned Judge after hearing the parties, dismissed the appeal. Aggrieved against this, the plaintiffs have come forward with the present second appeal.
3. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration:
(1) Whether the suit property is not a religious institution or temple as contemplated under the HR & CE Act ?
(2) Whether the plaintiffs are entitled to file the present suit ?
(3) Whether the Krishna Temple has got any right over the suit property which has been declared to be the property of the Mutt
4. Heard the learned counsel for the parties.
5. The plaintiffs filed the suit for themselves and representing the public worshippers filed the suit for declaration and consequential relief of permanent injunction. The headquarters of the Mutt is at Sosalai, Karnataka State and the Mutt had properties throughout India. The suit property is at Kumbakonam and it is one of the properties belonging to the Mutt. There are 3 Samadhis and also a Brindavan and Krishna Temple in the property. The 1st defendant being a Peedathipathi of the Mutt, executed a lease deed under the original of Ex.A-1 dated 20.10.1987 in favour of the 2nd defendant. Now, the plaintiffs in the name of worshippers have questioned the validity of the said deed.
6. Section 6(15) of HR & CE Act defines 'person having interest' means in the case of a math, a disciple of the math of a person of the religious persuasion to which the math belongs. The plaintiffs are not disciples of Vyasaraja Mutt or persons of religious persuasion to which the Mutt belongs. There are also no common interest among the plaintiffs themselves since they belong to different religions. Only plaintiffs 1 and 3 belong to Mathwa community and plaintiffs 5 and 6 belong to different community. Under the circumstance, it has to be considered whether the plaintiffs are competent to file a suit in a representative capacity on behalf of all worshippers.
7. Section 6(13) of the Act defines 'Math' and it reads as follows:-'Math' means a Hindu religious institution with properties attached thereto and presided over by a person, the succession to whose office devolves in accordance with the direction of the founder of the institution or is regulate by use and-
(i) whose duty it is to engage himself in imparting religious instruction or rendering spiritual service; or
(ii) who exercises or claims to exercise spiritual headship over a body of disciples;and includes places of religious worship or instruction which or appurtenant to the institution;
8. Section 6(17) defines 'religious endowment' and it reads as follows:
'Religious endowment' or 'endowment' means all property belongs to or given or endowed for the support of maths or temples, or given or endowed for the performance of any service charity of a public nature connected therewith or of any other religious charity; and includes the institution concerned and also the premises thereof, but does not include gifts or property made as personal gifts to the archaka, service holder or other employee of a religious institution'.
9. Section 6(18) defines 'religious institution' means a math, temple or specific endowment. Section 6(20) defines 'temple' and it reads as follows:-
'Temple' means a place by whatever designation known used as a place of public religious worship, and dedicated to, or for the benefit of, or used as of right by, the Hindu community or of any section thereof, as a place of public religious worship'.
10. The learned counsel for the appellants contended that there are 3 Brindavanams in the suit property for revered saints and also a temple dedicated to Lord Krishna in which daily poojas are conducted and Abisekhams are performed and thus being a Public Trust the properties are inalienable without the sanction of the Commissioner. The lease in favour of the 2nd defendant is neither supported by legal necessity nor beneficial to the Mutt and the very recitals in the lease deed will clearly show that it is a mere commercial transaction intended to benefit the 2nd defendant. There is absolutely no necessity for executing a nearly perpetual lease deed for 99 years and deprive the Mutt of the variable income to which it would otherwise be entitled. Any lease exceeding five years is null and void unless sanctioned by the Commissioner and inasmuch as no sanction has been obtained from the Commissioner, Ex.A-1 is void and unenforceable.
11. There is no material to show that the general public can worship as a matter of right. Only if the plaintiffs are able to establish that all of them belong to Madhwa community and they are also disciples, then only they would get cause of action to file a suit. The evidence adduced in the case clearly indicate that there are about 7 shops in the front side of the property and already eviction proceedings have been initiated by the authorities and eviction was also ordered. Only when the execution proceedings are pending, the suit has been filed by the plaintiffs claiming a novel right in the property. When there is already an eviction order against the tenants in occupation of the property, it is evidently clear that the plaintiffs have been set up to file this suit only to prevent the execution of a lawful decree obtained by the otherside. Hence, it cannot be said that the plaintiffs have got any cause of action to file the suit and it also lacks in bona fide. P.Ws.1 to 3 admitted that there are 3 Samadhis in the suit property and hence, by any stretch of imagination, they cannot be construed as a religious institution or a place of public worship.
12. The learned counsel for the appellants mainly contended that on the date of death of the saint, Guru Pooja is conducted and there would be mass feeding of about 500 persons. It is stated that daily poojas are performed in the Krishna temple, all photos with negatives are filed under Exs.A-15 to A-19. Ex.A-11 to 13 are the printed invitations relating to the celebration of Gokulashtami Day. Ex.A-14 is the note book showing the collection and expenditure for Krishna Jayanthi.
13. P.W.3 claimed that he belongs to Madhwa community and he was managing the suit property on behalf of the Mutt and he was also appointed as Manager by the Peedhathipathi. D.W.1 admitted that P.W.3 was appointed as manager of the property. It has been held in number of decisions that the building of the Samadhi or a tomb over the remains of a person and the making of the provision for the purpose of Gurupooja and other ceremonies in connection with the same cannot be recognised as a charitable or religious purpose according to Hindu Law. The Krishna Temple is facing west and the Samadhis are facing the Krishna Temple. There should be positive proof on behalf of the appellants to show that it was dedicated to the public and the property must be dedicated for the maintenance. No property has been endowed to maintain the Samadhis as well as the temple. This is one more circumstance to show that the suit property is not the public temple within the meaning of the Act.
14. The learned counsel for the appellants relied on the decision reported in Ponnambala ..vs.. Periyanan (AIR 1936 Privy Council 183) that a permanent lease or absolute alienation of debuttar property is beyond ordinary powers of management. Such alienation can be justified only by a proof of necessity for the preservation of the endowment or institution. Such alienations are not however void ab initio but are valid during the tenure of office of the head of the math, shebaitor, or dharmakarta, by whatever name the manager is called.
15. It has been held in Ramanasramam ..vs.. Commissioner, HR & CE., Madras that it has become settled law so far as Madras State is concerned that a Samadhi by itself, and not treated as a fitting object of public. Hindu Religious worship for over a long period, does not involve into a temple.
16. It has been held in State of Madras ..vs.. Ramanatha Chettiar 1962 MWN 173 that the premises 'Kambar Samadhi' is not a temple. The worship of Kambar cannot be equated to divine worship.
17. Reliance is placed upon Soundharathammal ..vs.. M.A.B.M.Sangam wherein it is stated as follows:
'Merely because the members of the public are allowed to attend religious festivals and ceremonies, it cannot be straightaway said that such user was due to an inherent or acquired right of the public to visit the shrine and offer worship. The mere fact that Hindu worshippers have been freely admitted to the temple does not prove the temple to be a public institution, because the consonance of Hindu sentiment and practice is not to turn away worshippers even in private temples'.
18. It has been held in Commissioner for Hindu Religious and Charitable Endowments, ..vs.. G.Veluchamy 1988 (I) LW 292 that 'Worship around tomb of a human being does not fall within the category of religious worship - Building of a Samadhi or a tomb over the remains of a person and making provision for performing Guru Pooja and other ceremonies in connection therewith, not recognised as charitable or religious purpose according to Hindu Law'. Another Bench decision of this Court in M.V.P.B.Nammalwar ..vs.. Commissioner, HR & CE. 1997-2 L.W.477)as follows:
'The ingredients of the definition of 'mutt' under the Act in the instant case are not at all satisfied and the learned single Judge has erred in not taking into account the fact that there is no propagation of any religious philosophy either contemplated under the Will of Vedanayagaswamy or practised in the suit institution. Further, there are no disciples in the Mutt also for the Mutt to come within the definition'.
19. The learned senior counsel for the 2nd respondent relied upon Vidya Varuthi ..vs.. Baluswami AIR 1922 PC 123 that 'a lease without justification granted by the head of the mutt is valid for his life, and if adopted by his successor would endure during his term of office; but neither the original alienation nor the subsequent adoption would create a bar by adverse possession. Possession of the lessee becomes adverse to the successor only on his accession to the office'.
20. It is therefore clear from the aforesaid discussion as well as decisions and the definitions given under the HR & CE Act that the suit property cannot be construed as a religious institution. The learned senior counsel for the 2nd respondent relied upon section 63 of the HR & CE Act and contended that the Deputy Commissioner has power to enquire into and decide the dispute in the matter. Section 63(a) of the said Act gives power to Deputy Commissioner to decide whether an institution is a religious institution or not. Section 108 of the Act also bars the jurisdiction of the Civil Court. A perusal of the section indicates that no suit or other legal proceedings in respect of the administration or management of a religious institution can be filed.
21. The learned counsel for the appellants also relied upon section 34 of the HR & CE Act and stated that any exchange, sale or mortgage and any lease for a term exceeding five years shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. A bare reading of the section will indicate that it relates to the religious institution. When only the appellants are able to establishthat the suit property is a religious institution, then only they can succeed in the case. The 1st defendant leased out the property to the 2nd defendant for 99 years and received a premium of Rs.one lakh. Now, the present rent received is only Rs.80/= per month in respect of the 7 shops and the proposed rent after reconstruction is Rs.1000/= per month. There is also a plea in the written statement about non-joinder of necessary parties. The learned counsel for the appellants contended that no issue has been framed in the trial court. But a perusal of the judgment of the lower appellate court indicates that point No.5 relates to non-joinder of necessary parties. Hence, I am of the view that there is no force in the contention of the learned counsel for the appellants. It is patently clear that most of the plaintiffs belong to other than Mathwa community and they have not filed any record to show that they were also worshipping the temple as a matter of right. On the other hand, there is much force in the contention of the respondents that these plaintiffs have been set up by the tenants, who have already been ordered to be evicted by a court of law and the matter went upto the Apex Court. There is absolutely no evidence of endowment of any property by any public. Simply because a temple is put up adjoining the Samadhi and some Guru Poojas are performed on particular days, it cannot be construed as a religious institution. The lower appellate court had correctly appreciated the contentions of the parties and the finding is based on legal evidence, no interference is called for.
22. For the reasons stated above, the Second Appeal fails and is dismissed. No costs.