Judgment:
M. Venugopal, J.
1. The appellants/plaintiffs have filed this appeal against the judgment and decree dated 04.08.1999 made in O.S. No. 218 of 1994 passed by the Subordinate Judge, Udumalpet in dismissing the suit filed by the appellants/plaintiffs praying for the relief of declaration that they are holding office as hereditary trustees in Arulmigu Dhandayuthapani temple situated at Vedachandur Village, Pollachi Taluk, Coimbatore District within the meaning of Section 6(11) and Section 63(b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and for setting aside the order of the Commissioner, H.R. and C.E. Department, Madras passed in A.P. No. 62 of 1990 dated 09.12.1993 and the order of the Deputy Commissioner, H.R. and C.E. Department, Coimbatore in O.A. No. 92 of 1987 dated 07.02.1990.
2. The short facts of the case are as follows:
(i) The temple popularly known as Arulmigu Dhandayuthapani is situate in an extent of 35 cents in Village Natham, Vedachandur Village, Pollachi Taluk and the temple has no immovable properties. The plaintiffs are managing the affairs of the temple continuously from the date of death of their father and they are in possession of and in charge of the temple for the past several years. The plaintiffs father Avanandi Gounder, a strong devotee of Lord Dhandayuthapani, Palani, Madurai District, a frequent visitor of Palani which is 80 kilometers from Pollachi to worship the Lord Dhandayuthapani and he has desired to construct a temple for Lord Dhandayuthapani in his own village and wanted to worship the Lord twice in a day in his house itself. He has been a big landlord of the village and started the construction and completed the temple in the year 1926 and installed the Deity. Being a God fearing personality and an affluent person, he has allowed the villagers to worship the Deity. He expired in 1956, leaving behind his five sons viz., the plaintiffs along with their younger brothers Mylswamy, Nataraj and Balakrishnan who succeeded the office and managing the affairs of the temple effectively. However, the younger brothers of the plaintiffs have no interest in the temple management and allowed the plaintiffs to look after the affairs of the temple.
(ii) The annual income for the temple is Rs. 1,700 per year, by means of hundial collection. The day to day expenses and the annual festival expenses are meted out from the said income and any deficiency is made up by the private funds of the plaintiffs. The electricity consumption charges are paid by the plaintiffs for the service connection obtained by them. The poojari performs the poojas in the temple and he is under the supervision of the plaintiffs. The office of the trusteeship of the temple has been vested in the family of the plaintiffs and their father. No one outside the family of the plaintiffs has ever functioned as trustee in the temple.
(iii) The sanctity of the temple is well preserved. The plaintiffs have made vast improvements and renovated the temple. The name and fame of the temple has enhanced by attracting a large number of worshipers from the neighbouring villages.
(iv) Seeing the nature and the management of the temple being a hereditary one, no one has been appointed as trustee for the temple by the department for the past several years. The H.R. and C.E. Department has tried to appoint non-hereditary trustees for the institution recently without knowing the nature and management of the temple. Inasmuch as the temple is under the management of hereditary trustees, the H.R. and C.E. Department has no right to appoint non-hereditary trustees. In order to obtain a statutory declaration under Section 63(b) of the Act, the plaintiffs have filed O.A. No. 92 of 1987 on the file of Deputy Commissioner, H.R. and C.E. Department, Coimbatore claiming the office of trusteeship of the temple as hereditary within the meaning of Section 6(11) and 63(b) of the Act. The original application was dismissed on 7.2.1990. As against the said order, the plaintiffs have filed an appeal as per Section 69(1) of the Act in Appeal No. 62 of 1990 on the file of the Commissioner, H.R. and C.E. Department, which has been dismissed on 9.12.1993. Therefore, the plaintiffs have filed the suit as per Section 70(1) of the Act praying for the relief of declaration that the plaintiffs are holding office as hereditary trustees in Arulmigu Dhandayuthapani temple, situated at Vedachanthur village, Pollachi Taluk, Coimbatore District within the meaning of Section 6(11) and Section 63(b) of the Act and to set aside the order of the Commissioner, H.R. and C.E. Department, Madras passed in A.P. No. 62 of 1990 dated 9.12.1993 and the Deputy Commissioner, H.R. and C.E. Department, Coimbatore in O.A. No. 92 of 1987 dated 7.2.1990.
(v) The respondents/defendants have filed a written statement inter alia stating that the plaintiffs are managing the affairs of the temple after the death of their father as de facto trustee and even though the temple has been brought to the notice of the Department, no action has been taken for appointment for non-hereditary trustees for the temple since the rules have been in force since 2.12.1959 and further that the plaintiffs have filed a petition before the Deputy Commissioner, H.R. and C.E. Department, under Section 63(b) of the H.R. and C.E. Act praying for a declaration as hereditary trustees, before ever the Department has initiated necessary steps for the appointment of non-hereditary trustees and moreover, the plaintiffs have failed to establish that they are holding the office of the hereditary trustee in the proceedings before the Deputy Commissioner, H.R. and C.E. Department and also in the appeal and that the orders passed under Section 63(b) and under Section 69(1) by the authorities of H.R. and C.E. are valid and in accordance with law and that the plaintiffs have not produced any documentary evidence to show that the suit temple have been founded by the father of the first plaintiff in the year 1926 and therefore, prays for dismissing the suit with costs.
(vi) Before the trial court on the side of the appellants/plaintiffs, witnesses P.W.1 and P.W.2 were examined and Ex.A1 to A.9 were marked. On the side of respondents/defendants witnesses, D.W.1 was examined and Ex.B1 to B8 were marked.
(vii) The trial Court on an appreciation of oral and documentary evidence and also after analysing the same in depth has come to the conclusion that the appellants/plaintiffs are not entitled to claim the relief of declaration that they are holding office as Hereditary trustees in the suit temple and the orders passed by the respondents/defendants dated 09.12.1993 and 07.02.1990 are correct and consequently dismissed the suit with costs.
3. The points that arise for determination are:
(1) Whether the appellants/plaintiffs are entitled to the relief of declaration that they are holding office as Hereditary trustees in Arulmigu Dhandayuthapani temple, at Vedachanthur village, Pollachi Taluk, Coimbatore District, within the meaning of Section 6(11) and Section 63(b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 ?
(2) Whether the orders of first respondent/first defendant and second respondent/second defendant of H.R. & C.E. Department dated 09.02.1993 and 07.02.1990 are liable to be set aside?
4. Findings: Point Nos. 1 and 2:
The learned Counsel for the appellants/plaintiffs contends that the trial Court should have seen that there is no claim by any other person or others to the right of management of the suit temple and that the trial Court has not appreciated the fact that the suit temple has been built 70 years before through evidence of P.W.2 to the effect that the father of the appellants/plaintiffs have constructed the temple out of his own funds and further, merely because the offerings of public are accepted and they are allowed to pray in the temple, it cannot be held that the suit temple is a public temple and added further just because the temple has been constructed in a poramboke land, one cannot come to the conclusion that the suit temple does not belong to the appellants or their father and that the report of the Inspector of H.R. & C.E. Department to the effect that the suit temple is managed by the appellants/plaintiffs alone has not been taken into account by the trial Court in a proper perspective and therefore, prays for allowing the appeal to promote substantial cause of justice.
4. Per Contra, the learned Government Pleader (H.R. & C.E) submits that the appellants/plaintiffs have not proved that they are holding the office as Hereditary trustees and that the appellants/plaintiffs after the death of their father are managing the affairs of the temple as de facto trustees and the payment of electricity charges etc., will not confer any right or title to the appellants/plaintiffs in claiming their right of Hereditary trusteeship and just because no outsider (other than the family) has acted as trustees, the same will not cloth their claim as Hereditary trustees and that the judgment of the trial Court does not suffer from any infirmity or illegality in the eye of law and therefore, the same need not be interfered with by this Court in this appeal.
5. P.W.1/second plaintiff in his evidence has deposed that the suit temple is situated in Vedachanthur village in Natham poramboke land and that his father Avanandi Gounder constructed the suit temple in the year 1926 and that his father used to frequently visit Palani and that he has a ardent belief in God and therefore, he has decided to construct a temple and that he died in the year 1956 and till his death he has been looking after the management of the temple and that he has five sons and apart from the appellants/plaintiffs there are three brothers and that they have asked the appellants/plaintiffs to look after the temple.
6. It is the further evidence of P.W.1 that there is a hundi in the temple and for its maintenance, there is a register Ex.A1 and that the hundial will be opened once in six or seven months by the temple Inspector in their presence and that they have employed an employee on a monthly salary of Rs. 30/- and that the said employee will take the offerings and that they will conduct festivals with their own expenses and if anyone out of love offers money, they will receive it and the other three brothers in their family are not interfering with the affairs of the temple and that on 24.03.1983 a Kumbabishegam was performed. It is pertinent to point out that P.W.1 in his cross examination has specifically stated that no petition has been submitted that his father has been the Hereditary trustee and that it is correct to state that no record has been submitted in the case about the existence of temple from 1926 and further it is correct to state that only from 01.10.1994, the receipt and expenditure accounts have been filed as per Ex.A7 and prior to 01.10.1994 the account details have not been submitted and in Ex.A2 Savings Bank account details have been submitted from 1995 and the earlier accounts have not been submitted and when arrangements have been made for appointment of Trustee post in they year 1997, they have filed the case.
7. P.W.2 in his evidence has deposed that P.W.1's father has constructed the suit temple and that he has been in management of the affairs of the temple and after his death, P.W.1 is managing the affairs and that the daily pooja and other expenses are borne out by the plaintiff at his own expense for performing pooja there is one person, for whom the salary is paid by the plaintiff and that the plaintiff has obtained the service connection and the electricity charges are paid by the plaintiff and that the suit temple has a bank account and that the hundial will be opened by the plaintiff in the presence of the officers and that the management of the temple by the plaintiff has not been opposed by anyone and that temple has no other properties and that the temple has been constructed in the public place of the village and that the same has been constructed in the year 1926 and that the suit temple is not in the place belonging to the plaintiffs and that the present poojari has been serving for the last ten years and that he is not aware of the income of the temple and that he has an acquaintance with the plaintiff and that the plaintiff is near his house.
8. The evidence of D.W.1/Suit Inspector of the H.R. & C.E. Department is to the effect that the plaintiffs have not filed proper document to claim the right of Hereditary trusteeship and that he is not aware in which year that the kovil has come into existence and that he has not seen the first report of the suit temple but he has seen the other records and that the suit temple has come into their Department's fold and till date the same is in their control and that the temple hundial, poojari salary, other accounts are in possession of plaintiffs and that an application has been sent in the year 1987 in regard to the non-Hereditary trusteeship claim.
9. Section 6(11) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 deals with Hereditary trustee which means 'the trustee of a religious institution, the 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'.
10. Significantly, Section 6(20) refers to 'temple' meaning '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'.
11. Undoubtedly, in a civil suit, plaintiffs or the dominus litis and the same is not an universal rule. In Munuswamy Chetty (died) and Ors. v. Commissioner H.R. & C.E. (1993) 1 MLJ 183 it is observed that there are three kinds of Hereditary trustees as per the definition.
(A) A trustee, succession to whose office devolves by hereditary right.
(B) A trustee, succession to whose office is regulated by usage.
(C) A trustee, succession to whose office is specifically provided for by the founder.
12. One cannot indulge in assumption or presumption to the effect that the appellants/plaintiffs are entitled to hold office as Hereditary trustees in the suit temple because of the fact that there is absence of contra evidence in this regard. Moreover, the claim of Hereditary trusteeship right must be based on reliable and acceptable satisfactory evidence of sufficient proof in this regard.
13. In Ex.B5 the suit temple festival notice it is mentioned as 'Dhandayuthapani Thiru Kovil Administrator, Thiruvedachanthur' and nowhere in this document, the appellants/plaintiffs name are found as Hereditary trustees.
14. In Ex.A6 electricity charges payment receipts the name of the temple is alone mentioned and again in Ex.A6, the appellants/plaintiffs name are not seen either as Hereditary trustees or as individuals who are managing the affairs of the suit temple. Added further, the father of the plaintiffs apart from the appellants/plaintiffs as sons do have three other sons. But they have not figured as appellants in the proceedings in A.P. No. 62 of 1990 before the first respondent/first defendant and that they have also not been arrayed as plaintiffs Nos. 3 to 5 in O.S. No. 218 of 1994 on the file of the trial Court. This Court opines that all individuals who are interested in the office of trusteeship must be made as necessary parties in the suit. Moreover, the suit in O.S. No. 218 of 1994 on the file of trial Court is not one under Order 1 Rule 8 of C.P.C.
15. On a conspectus of overall consideration of facts and circumstances of the present case, suffice it for this Court to point out that the appellants/plaintiffs have not proved to the satisfaction of this Court that they are managing the affairs of the temple after the death of their father in the capacity as hereditary trustees and it cannot be disputed that the temple is in a poramboke land and there is no clinching evidence from what/which source of income the father of the plaintiffs has constructed the temple and equally there is no evidence to find out whether donors have contributed to the construction of the said temple or even to know whether the father of the appellants/plaintiffs has constructed the suit temple with his own funds, there is absolutely no convincing, acceptable evidence in this regard and it is to be noted that laying claim for trusteeship of a temple is different from claiming the temple to be of ones own and in this view of the matter, this Court holds that the judgment of the trial Court does not suffer from any irregularity or illegality in law and the same does not call for interference in the hands of this Court and the appeal fails and the same is hereby dismissed.
In fine, for the reasons mentioned supra, the Appeal is hereby dismissed. The judgment and decree of the trial Court dated 04.08.1999 are confirmed. In the circumstances of the case, there shall be no order as to costs.