NELLOR MARTHANDAM VELLALAR AND ORS. versus THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS AND ORS.

SHIVARAJ V. PATIL, J. The appellants filed suit for declaration that the suit temple is a denominational temple and that the defendants I and 2 have no jurisdiction to appoint the third defendant as fit person. The trial court decreed the suit. The first appellate court reversed the judgment and decree passed by the trial court and dismissed the suit. The High court in second appeal upheld the judgment and decree passed by the first appellate ~~

p. 923, margin E

The High Court in the impugned judgment has narrated the facts in sufficient details based on the pleadings of the parties and the material that was placed on record. It is not necessary to state them again. However, to the extent they are relevant and necessary in the light of the contentions advanced on behalf of the parties, we notice them hereunder.

pp. 923–924, margin G

The case of the plaintiff before the trial court was that the first plaintiff is a denominational temple entitled to exemption as provided under Article 26 of the Constitution of India and Section I 07 of the Tan,1il Nadu Hindu Religious and charitable Endowments Act, 1959 (for short 'the Act'); the temple is ln Nalloor village and is known as Sree Uchini Makali Amman Temple, built on an extent of 17 cents in S.No. 1593 and that the ·entire extent is owned by the Vellala Community of Marthandam. The Vellalas residing in Marthandam are a collection of individuals professing Hindu faith; the ancestors of the members of the community constituting corporate body founded the temple in the land purchased by the members of Vellala Community. The plaintiff further claimed that the members of Vellala Community observed special religious practices and beliefs which are integral part of their religion and that the front mandappam of the Sanctorium is open to access only to members of their community and none-else. Outsiders can offer worship from the outer compound.

p. 924, margin A

The first defendant filed written statement contending that the first plaintiff-temple is a public religious institution under the control of HR&CE Department; it was brought under the control of the Departme;1t in the year 1965; the origin of the temple or the name of its founder is n9t known; the properties owned by the temple stand in its name; an extent in S.No. 1593 has been leased out for a cinema theatre and the rent due forms the main source of income for the temple; the public also contribute in the hundiyal kept in the temple; the temple is not a denominational as claimed by the plaintiffs. It is the further case of the first defendant that the Dejpartment has been appointing non-hereditary trustees for the temple and the management vests with the trustees so appointed from time to time by the D1partment. In the year 1965 when the temple was brought under its control, th~ Department called for objections for appointment of non-hereditary truste~:s and there was no objection to the proposal and regular applications were invited for appointment of non-hereditary trustees. Five persons including 1'admanabha Pillai and Subramania Pillai (plaintiffs 2 and 3) volunteered for the appointment; the Area Committee by its resolution dated 31.1.1966 appointed those persons as non-hereditary trustees; further in a special meetiqg convened by the Inspector of the Department, one Manickavasakam Pillai iwas elected as Chairman of the Board of trustees and the said resolution was approved by the Assistant Commissioner (defendant no. 2) by his order d1tted 7.3.66. After the expiry of the tenure of office of those persons, fresh n )(ices were issued calling for applications from desiring persons to be appointed as nonhereditary trustees to fill up vacancies in the Board. Plaintiffs 2 to 5 were estopped by their conduct from contending that the suit temple is denominational one and that the plaintiffs have any inherent right to be management of the said temple.

pp. 924–925, margin D

The trial court on the basis of the pleadings of the parties and ,the evidence let in, in support of their respective claims held that the suit temple is a denominational temple entitled to protection as claimed and it is not public religious institution; at the same time, it was held that Department entitled to exercise such powers which are conferred on them by law regard to the administration of the institution and that the authorities had no power to appoint fit person so as to interfere with the administration of the temple by Vellala Community. The Subordinate Judge in the first appeal held that the members of Vellala Community do not form a religious denomination, but they are merely a sub-caste of the Hindu religion; their practices and observance do not lead to the conclusion that they have common faith or they profess certain religious tenet having common faith. He also took the view that several features relied upon by the plaintiffs were not sufficient to identify the institution as a denominational one. In doing so, the first appellate court relied upon the principles laid down in the decisions reported in S.P. Mittal v. f-!nion of India and Ors., AIR 1983 SC 1 and The Commissioner, Hindu Religious Endowments, Madras, v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt, AIR (1954) SC 28. In the second appeal, the learned Judge the High Court by a well-considered order which is Impugned in this appeal concurred with the views expressed by the first appellate court. The learned Judge on a clear analysis of the legal position expressed and explained various decisions, touching the question in controversy and applying them the facts of the present case in the light of the rival claims, upheld the judgment and decree passed by the first appellate court.

p. 925, margin B

Learned counsel for the appellants contended that- (I) Under Section 1(3) of the Act, the institution concerned should be public religious institution; the religious institution is defined in Section 6(18) and temple is defined in Section 6(20) which includes a sectarian temple; a sectarian temple could be a public or private; the Act gets attracted only to sectarian temples which

p. 925, margin F

are public and not which are private. (2) The suit temple belongs to Vellala Community and there is one single deity, namely, the Uchini Mal:ali Amman and that their own distinct customs and beliefs constitute a ''religious denomination" and as such their fundamental right under Article 26 of the Constitution and their right under Section I 07 of the Act, cannot be transgressed by the authorities under the Act. In support of this submission, he placed reliance on the decisions of this Court in Gurpur Gunni Venkataraya Narashima Prabhu and Ors. v. B.C. Achia, Asstt. Commissioner, Hindu Religious and Charitable Endowment, Mangalore and Anr., AIR (1977) SC 1192 and K. Eranna and Ors. v. Commissioner for Hindu Religious and Charitable Endowments, Bangalore and Ors., AIR

pp. 925–926, margin G

(1970) Mysore 191. (3) The High Court committed an error in holding that the members

p. 926, margin C

of Vellala Community have no distinct name and common faith. (4) Plaintiffs moved the court in 1976 as soon as a non- Vellala Community man was sought to be made a trustee; the conduct of plaintiffs between 1965 to 1976 cannot result in a waiver of

p. 926, margin C

fundamental rights.

p. 926, margin D

In opposition, the learned counsel for the respondents made submissions supporting the impugned judgment reiterating the submissions that were made before the High court. He further contended that the first appellate court on a re-appreciation of entire evidence on record has recorded a finding of fact against the plaintiffs as to nature of temple supported by good reasons; the High Court rightly found that the judgment and decree of the first appellate court did not call for any interference. Under the circumstances, according to him, the impugned judgment deserved to be maintained.

p. 926, margin D

It is settled position in law, having regard to the various decisions of this Court that the words "religious denomination" take their colour from the word 'religion'. The expression "religious denomination" must satisfy three requirements - (I) it must be collection of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual wellbeing, i.e., a common faith; (2) a common organisation; and (3) designation of a distinctive name. It necessarily follows that the common faith of the community should be based on religion and in that they should have common religious tenets and the basic cord which connects them, should be religion and not merely considerations of caste or community or societal status. On the basis of the evidence placed on record, the first appellate court as well

p. 926, margin F

92 7 as the High Court found that Vellala Community is not shown to be a distinct religious denomination, group or sect so as to be covered by Article 26 of the Constitution. Further, it was necessary for the plaintiffs to establish their claim in respect of the temple that the said denomination group has established and is maintaining and administering the suit temple to take the protection of Article 26 of the Constitution and Section 107 of the Act High Court found, after meticulous and careful consideration of material that there was no evidence to prove that the members of the Vellala Community have been shown to have any common religious tenets peculiar to themselves other than those who are common to the entire Hindu community. The High Court in the impugned judgment has observed that the materials placed by the appellants at best may go to show that during certain period members of their community were playing a major role in the administration of temple. The learned Judge of the High Court also found that the material on record was not sufficient to hold that the members of Ve!lala Community established the temple in question, nor was there proof of initial establishment of the temple by them. The first appellate court held that the materials on record were not sufficient in law to show that Ve!lala Community initially established the temple. Thus, the first appellate court on facts recorded finding against the plaintiffs which findings were affirmed by the High Court and rightly so in our opinion. Here itself, we may notice one more ancillary submission of the learned counsel for the appellants that there is no presumption as regards the temples in Marthandam that they are public trusts and they must be established so, on evidence. This submission was made taking support from two decisions (I) Mundacheri Koman v. Thachangat Puthan Vitti/ Achuthan Nair and Ors., A.LR. (1934) PC 230 and 2 The Commissioner, Hindu Religious and Charitable Endowment (Administration Deptt.), Madras v. P. Vel/appan Nair, (2001) 3 L.W. 327. The finding of fact in the case on hand is not recorded merely by raising a presumption. On the other hand, finding of fact is recorded on the basis of evidence available on record. Hence, these two decisions do not advance the case of the appellants.

p. 927

In the light of finding of fact recorded by the first appellate court as affirmed by the High Court, the argument sought to be made that the Act gets attracted only to sectarian temples which are public and not to sectarian temples which are private in view of Sections I (3), 6(18) and 6(20), do not help the appellants when there is a finding that it is not a private temple. Added to this, the temple was taken under the control of the Department in the year I 965. That was not challenged by the appellants; Department called for objections for appointment of non-hereditary trustees not restricting to members of Vellala Community only; then also no objections were filed; thereafter regular applications were invited for appointment of non-hereditary trustees not from the members of Vellala Community only; five persons including appellants 2 and 3 who volunteered for appointment as nonhereditary trustees were appointed by the resolution dated 31.1.1966; further in a special meeting conveyed by Inspector of the Department, one Manickavasakam Pillai was elected as Chairman of the Board and the said election was approved by the Assistant Commissioner of the Department on 7.3.1966; on the expiry of the tenure of office of trustees, fresh notices were issued calling for applications from desiring persons to be appointed as nonhereditary trustees to fill up four vacancies in the Board. We specifically asked learned counsel for the appellants whether in the notices issued inviting applications for appointment as non-hereditary trustees, any restriction was made confining applications to the members of the Vellala Community only. The learned counsel fairly stated that in the notices, no such restriction was made. Again in 1972, as noticed in the impugned order, 5th appellant was appointed as trustee. The appellants 2, 3 and 5 were appointed by the Board and they were not chosen representatives of the community. Under the circumstances, the claim of the appellants was rightly negatived looking to their conduct. Hence, it follows that the appellants were estopped by their conduct from contending that the suit teinple is a denominational one and that the plaintiffs have any inherent right to be in management of the said temple. As such they were not entitled to claim any protection under Article 26 of the Constitution or under Section I 07 of the Act.

pp. 927–928, margin F

The decision in Gurpur Gunni Venkotaraya /Varashima Prabhu and Ors. (supra) in our view does not support the case of the appellants. That decision was rendered on .the facts of that case as observed in the impugned judgment. In that case, it was found on evidence that the temple was founded by 37 Goud Saraswat Brahmin families of Gurpur that the trustees managing the temple belonged always to the said Community, the landed properties owned by the temple had all been endowed by members of the said community; there was no reliable evidence of endowment of any immovable property by any person outside the Community. Further in that case, the Subordinate Judge found that the defendants' witnesses on whom the defendants relied to prove that the temple was dedicated to the general Hindu community did not claim right of worship in the temple. But in the present case with which we are concerned, facts are different and findings of the fact recorded go against the appellants.

p. 928, margin E

929

p. 929

The learned Judge in the impugned judgment referred to the case of K. A Eranna and Ors. (supra) and held that the observations made in that decision are too wide and cannot be said to be in conformity with the catena of decisions of this Court as well as the High Court of Madras which are referred to in the impugned judgment itself.

p. 929

Thus, viewed from any angle, we do not find any merit in this appeal. B Consequently, it is dismissed. No costs, NJ. Appeal dismissed.

p. 929