THE COMMISSIONER FOR HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS Vs. P.R. JAGANNATHA RAO AND ORS.

JUDGEMENT

(1.) The 1st defendant, namely. The Commissioner for H.R. and C.E., Madras, in O.S. No. 203 of 1964 on the file of the Court of the Subordinate Judge, Tiruchirapalli, is the appellant. The plaintiff filed the suit to set aside the order of the Commissioner for H.R. and C.E. Board, dated 4th July 1964 in which it was held that the temple known as Sri Hanumantharaya Swami temple, Andankovil, Karur Taluk, Tiruchirapalli District, was a public temple within the meaning of the provisions of the Madras H.R. and C.E. Act, 1959, hereinafter referred to as the Act. The material allegations on which the plaintiff approached the Deputy Commissioner, H. R. and C.E. under S. 63(1) of the Act are as follows. The plaintiff's great grandfather Putti Jayatheerathachar installed the idol of their family deity "Hanumantha Raya" on a site bearing S.F. No. 1347 in Andankovil, Karur Taluk, some years ago. Originally, the idol was housed in a thatched shed. Later, the plaintiff's grandfather Putti Rangannachar improved the same by cutting up a brick and masonry construction in the place of a thatched shed. At no time, this construction had the normal indicia of a temple in that it had no Gopuram or Dwajasthambam or Prakaram. The plaintiff's further case was that the public have no right to participate in the worship in the temple, and there was and there is no right in the Hindu community or any Sec. thereof to use this institution as a place of public religious worship nor has it been recognised as such for several decades in the past. As a matter of fact, on Madhwa Navami day, Madhwa Brahmins are invited to attend pooja in the temple. There is no hundial in it. The family idol instead of being kept in a residential premises belonging to one or other of the family members, was installed and worshipped in a separate place by them and their invitees. Expenses for worship are met solely and exclusively from and out of the family funds of the plaintiff. It was either the father of the plaintiff or his grandfather who endowed certain immovable properties to the temple, as it is popularly called, and the income thereof is being utilised for the upkeep and performance of daily pooja in the temple. Any deficiency in the funds is met by the plaintiff from his private funds. The pooja in the temple is not in conformity with the agamic standards of pooja in a public temple. The public do not contribute anything for the upkeep of the temple and they do not make any offerings or permitted to make any offerings to the temple and there is no hundial in the temple either. The keys of the temple have always been in the family of the plaintiff and his predecessors, thus indicating that the plaintiff and his ancestors reserved for themselves the right to exclude and restrict admission to the temple. On 29th November 1870 the plaintiff's grandfather Putti Rangannachar secured the right to conduct and carry on the worship of the deity in the temple under a partition deed dated 28th November 1870 and he also took over the endowments attached to the temple. It is also stated that Putti Rangannachar also endowed certain properties by gift deed dated 21st January 1911 the recitals in which also establish that the temple is a private temple. Putti Rangannachar died in 1922 leaving his two sons Putti Venkatasubba Rao and Putti Raghavendra Rao. His other son Vathi Raja Rao was given away in adoption and we are not therefore concerned with his lineage. Putti Venkatasubba Rao died in 1942. Putti Raghavendra Rao died in the year 1950. Both Putti Venkatasubba Rao and Putti Raghavendra Rao during their life -time were the trustees of the temple. On the death of Putti Raghavendra Rao the Plaintiff and defendants 2 to 7, who are his heirs, became trustees of the Private Temple. According to the plaintiff, the Hindu Religious and Charitable Endowment Board did not exercise any act of control or management in respect of the temple and his case is that he never gave any contribution to the Board towards supervision charges, etc. On 28th February 1959 the Assistant Commissioner of the Board at Tiruchirapalli demanded contribution and attempted to appoint further trustees to the temple. When the plaintiff who was actually in management of the temple on behalf of his other heirs objected, he was asked to get a declaration under S. 57(a) of the 1951 Act corresponding to S. 63 (a) of the present 1959 Act. It was in that context that the plaintiff filed an application before the Deputy Commissioner, but it was dismissed. An appeal against the same to the Commissioner was unsuccessful. Defendants 2 to 6 remained ex parte. The 7th defendant sailed with the plaintiff. The main contention of the 1st defendant was that in O. A. No. 28 of 1928, which was an application filed by Putti Raghavendra Rao, a decision was rendered that the temple was a public temple managed by hereditary trustees and that it was excepted on that basis and that that decision would bind the plaintiff since no action was taken in accordance with law to set aside the said order. In the main the 1st defendant's case was that the present suit is barred by res judicata and there can be no further enquiry into the character of the temple as it has already been decided that it was a public temple. The circumstance that the plaintiff's father (Putti Raghavendra Rao) was giving contribution and audit fees to the Endowments Board would estop the plaintiff and other interested defendants from contesting the enforceability, legality and validity of the order passed in O. A. No. 28 of 1928. On the above pleadings the following issues were framed for trial:

(2.) Whether the order in O. A. 28 of 1928 bars the present contention of the plaintiff that the suit temple is a private temple?

(3.) Whether the order dated -4 -7 -1964 in Appeal No. 31 of 1962 is liable to be set aside for all or for any of the reasons set out in the plaint?