THE DEPUTY COMMISSIONER FOR HINDU RELIGIOUS AND CHARITABLE ENDOWMENT BOARD AND ORS. Vs. K. SIDHDHIVINAYAGA MUDALIAR
LAWS(MAD)-1970-3-35
HIGH COURT OF MADRAS
Decided on March 18,1970

The Deputy Commissioner For Hindu Religious And Charitable Endowment Board And Ors. Appellant
VERSUS
K. Sidhdhivinayaga Mudaliar Respondents

JUDGEMENT

R.Sadasivam, J. - (1.) APPEAL by the defendants in O.S. No. 46 of 1961 on the file of the Subordinate Judge's Court. Nagapattinam, against the decree and judgment of the learned Subordinate Judge of Nagapattinam upholding the claim of the respondent -plaintiff K. Sidhdhivinayaga Mudaliar that he is the hereditary trustee of the temples of Sri Venugopalaswami and Sri Ramaswamiperumal at Madapuram, hereinafter referred to as the suit temples, and setting aside the order of the Commissioner for Hindu Religious and Charitable Endowments Board, Madras, confirming the order of the Deputy Commissioner for the Hindu Religious and Charitable Endowments Board, Thanjavur.
(2.) THE several prior proceedings with regard to the suit temples are relevant in deciding the claim of the respondent -plaintiff. The suit temples are ancient temples. It appears from the order, Exhibit A -5 that the earliest document in which the suit temples find a place is the Paimash Account for fasli 1239, which contains an entry showing that the suit temples must have been in existence even prior to fasli 1216, corresponding to the year 1805. The defendants relied on Exhibits B -1 to B -14, which are cash security bonds and muchilikas executed in favour of the East India Co., and the Collector of Thanjavur in respect of the temple properties between the years 1831 to 1926. The plaintiff has also filed the lease deeds Exhibits A -11 to A -16 executed between the years 1831 to 1905 in favour of Viswanathan Chettiar and the succeeding trustees of the suit temples in respect of the lands belonging to the temples. Exhibit A -1 is the will executed by Viswanathan Chettiar on 20th January, 1885, in which he has claimed that he is the hereditary trustee of the suit temples and he has appointed Sabapathy Mudaliar as the person who should succeed him as the trustee. Exhibit A -2 is the trust appointment deed dated 19th July, 1897, executed by Kanakasabai and Somasundar a, two of the sons of Sabapathi Mudaliar along with one Narayanaswami Pillai, who got the trusteeship right under a document from Dakshinamurthi Mudaliar, the third son of Sabapathi Mudaliar. Under this document, one Bava Krishnaswami Mudaliar was appointed as the Adhina Parambarai Dharmakartha. Exhibit A -18 is a registration copy of the trust appointments deed executed on 14th May, 1900 by Bava Krishnaswami Mudaliar in respect of the management of the suit temples. Bava Krishnaswami Mudaliar has mentioned in that document as to how he got the trusteeship and he has provided for a scheme of succession. He has appointed Sabapathi Mudaliar and Shanmugha Mudaliar, the Nattamaikars of Sengunthar Community of Madapuram, to succeed him as trustees and further provided that thereafter the trustees shall be appointed; by the Nattamaikars of Sengunthar community. It is clear from the oral and documentary evidence in this case that from 1900 onwards the Nattamaikars of Sengunthar community alone have been the trustees of the suit temples and this is made clear even in the order Exhibit A -5. The plaintiff Sidhdhivinayaga Mudaliar is the present Nattamaikar of Sengunthar community and he claims to be the hereditary trustee of the suit temples. The several documents produced by the plaintiff show that the trustees of the suit temples have been styled as Adhina Parambari trustees. Thus in the lease deed Exhibit A -11 of the year 1866, Viswanathan Chettiar has described himself as Adhina Dharmakartha of the suit temples. We have already referred to the will Exhibit A -1 of, Viswanathan Chettiar, in which he has asserted that he is the hereditary trustee of the suit temples by stating that he is the Adhina Dharmakartha of the suit temples. In S. Appasami v. Nagappa, I.L.R.(1894) Mad. 499 a Bench of this Court has observed that when the trusteeship is hereditary, it is ordinarily described in Southern India as Adhina and the trustee as Adhina Dharmakartha. In Ganapathi Iyer's Law relating to Hindu and Mahomedan Endowments, 2nd Edn. p. 472, the above decision is relied on as authority for the position that in Southern India where the trusteeship is hereditary the trustee is ordinarily described in public and other documents as Adhina Dharmakartha. The plaintiff has alleged in the plaint that the suit temples are ancient temples called Adhina temples meaning that trusteeship thereof was hereditary and was regulated by usage within the meaning of Hindu Religious and Charitable Endowments Act.
(3.) THE defendants relied on the fact that in several proceedings the Government did not recognise the hereditary trusteeship in the suit temples. The question whether the suit temples are excepted temples came up for consideration in O.A. No. 84 of 1926 on the file of the Hindu Religious Endowments Board and the Board passed the order Exhibit A -5 recognising the suit temples1 as excepted temples. A brief history of the temples is found in that order. Regarding the muchilikas obtained by the Government, it was held in that order that it could be attributed to the general power of superintendence exercised by the Government over all classes of temples irrespective of the fact whether trustees were hereditary or not. It is clear from the order that though the Nagapattinam temple Committee prepared a register in 1868 in respect of temples which came under its control in pursuance of Act (XX of 1863) and the suit temples were included in the register, the Committee did not exercise any control over them. The suit temples were in the management of one Viswanathan Chettiar till his death in 1885 and the said Viswanathan Chettiar claimed to be the hereditary trustee of the suit temples. The order Exhibit A -5 refers to the attempted exercise of the right of control by the temple Committee by appointing trustees for the suit temples in 1914. But this resulted in proceedings under Section 145, Criminal Procedure Code. The order Exhibit A -3 passed by the Joint Magistrate ended in favour of Ramaswami Mudaliar, who claimed to be the trustee of Sri Venugopalaswami temple as Nattamaikar of Sengunthar community. Exhibit A -3 shows that though this temple was handed over after 1963 to the Tanjore Devasthanam Committee by the Board of Revenue, the Committee did not exercise any control over it. It is clear from the order Exhibit A -5 that the suit temples were not subject to the control of the Committee. It was held in that order that the right of nomination to trusteeship did not depend upon the Government. This order Exhibit A -5 was passed under Section 80 of the Madras Hindu Religious and Charitable Endowments Act (I of 1925) which provided that: If any dispute arises as to whether the math or temple is one to which this Act applies or as to whether a temple is an excepted temple, such dispute shall be decided by the Board.;


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