TMI Blog1987 (1) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... is represented by its Chairma n of the Board of Trustees, viz., P. Sitaraman; the other trustees being O. Radhakrishnan, V. M. Sadasivam and K. R. Shanmugam. The sixth defendant P.E. Rubalingam Chetty has been added as per order of Court dated 1-7-1976 in Application No. 1426 of 1976. The seventh defendant E. Sambasivam has been added as per order of Court dated 12-4-1977 in Application No. 606 of 1977. 3. The suit is for a declaration that the members of the Beri Chetty community being the followers of Sri Dharma Sivacharya Mutt, is a religious denomination and as such is entitled to exclusively own, administer, manage and conduct the affairs of Kandhakottam at 84, Rasappa Chetty Street, Madras-3, as per the terms of the scheme decree passed in C.S. No. 117 of 1907 through the chosen representatives of the Beri Chetty community. 4. The case of the plaintiffs is as follows: The plaintiffs belong to a community called Beri Chetty, a sub sect of Vysya community. They are the disciples of Sri Dharmasivacharya Mutt, which is a Hindu religious denomination having its own customs, religious rites and rituals intended for the spiritual benefit of their caste members. They have the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in C.S. No. 117 of 1907 and attempted to interfere in the internal administration of the suit temple. The then Deputy Commissione r, by his order dated 7.4.1952, upheld the contentions of the then trustees of the temple and held that the Trusteeship of the temple was of hereditary in character. However, on appeal, by the Department, the order of the Deputy Commissioner was reversed by the Commissioner by order dated 17.7.1957, according to which, the Commissioner has held that the Trusteeship to the temple is not hereditary. Thereafter, the then trustees of the temple, viz., K. Subramania Chettiar, S.N. Venugopala Chettiar, P.E. Raghava Chetty (3rd defendant herein) and K. Venugopala Chetty (4th defendant herein), filed O.S. No. 2364 of 1957 on the file of the City Civil Court, Madras, seeking to set aside the order of the Commissioner dated 17.7.1957 and also prayed for a declaration that the suit temple exclusively belong to the Beri Chetty community following the religious tenets and percepts of Abinava Dharmasivacharya Mutt, and as such is entitled to the protection given to the religious institution which is a denominational one under Article 26 of the Constitution read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here concerned with the rights of the parties to the reference either to support or to object to the various matters decided in the lower Court and also as to the maintainability of the suit or the prayers contained therein. Thereafter, a compromise was entered into between the plaintiffs and the H.R. C.E. Dept., on 24.9.1963 in the suit. Ex.P12 is the memo of compromise, Ex.P7 is the judgment and Ex.P23 is the decree. According to the plaintiffs, the aforesaid compromise is not binding upon the community as it has been entered into with the second defendant herein, without realising the purpose for which the suit had been filed. As a matter of fact, there was no proper representation on behalf of the community to enter into a compromise with the second defendant. The compromise is not binding upon them because the first plaintiff Subramania Chetty's term of office expired long prior to the date of compromise, the second plaintiff Venugopal Chetty was no more, the third plaintiff Raghava Chetty was acting only as a Receiver and not as a trustee, since his period of Trusteeship came to amend on 4.12.1959, and only the fourth plaintiff Venugopal Chetty was alive. Under Ex.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in and made the rule nisi absolute against defendants 1 and 2. Ex P13 is the affidavit filed in support of the writ petition, Ex.P14 is the writ petition, Ex.P15 is the counter filed by the second defendant herein, Ex.P17 is the judgment and Ex.P16 is the decreetal order in the aforesaid writ petition. 9. The second defendant herein, aggrieved by the order passed in the writ petition, preferred W.A. No. 9 of 1973. Ex.P18 is the memo of grounds, Ex.P19 dated 28.1.1976 is the judgment and Ex.P20 is the decreetal order passed in the writ appeal. The I Bench, hearing the writ appeal, observed as follows: We are of the opinion that, in the particular circumstance, the question based on Art. 26 of the Constitution does not arise. There was undoubtedly a finding in the suit ending in a compromise decree that the temple was a denominational one that was accepted by the Department. But, while doing so, the other terms of the compromise which we have already noticed, were agreed to between the parties; all those terms became part of the compromise decree; and that compromise decree is binding on the parties thereto, who were trustees who represented the temple, on the one hand and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he followers of Sri Abinava Dharma Sivachariar Madam as a religious denomination are entitled to exclusively own, administer, manage and conduct the affairs of Sri Kandaswamy Temple alias Sri Muthukumaraswami Devasthanam at No. 84, Rasappa Chetty Street, through their chosen representatives. (this prayer was inserted as per order dated 4.10.1985 in Appln. Nos. 3347 and 3348 of 1985) (b) for a permanent injunction restraining the 2nd defendant, his officers, servants, agents and others from interfering in any way with the exclusive right of the members of the Beri Chetty community to elect trustees for Sri Kandaswami temple alias Sri Muthukumaraswami Devasthanam in terms of the scheme decree of this Hon'ble Court in C.S. No. 117 of 1907 dated 11.1.1910 as amended on 31.3.1921 and the powers of the Denominational community of Hindu Beri Chetty community relating to its internal administration of the suit temple, etc. (c) directing the defendants to pay the costs of the suit. 11. According to the first defendant, the suit temple is a Public Hindu Religious Institution within the meaning of S.6(20) of the Act. The compromise decree Ex.P23 has become final and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the fourth defendant Venugopal Chetty died in 1986 and 1981 respectively. The sixth defendant Rubalingam Chetty who has been added as per order in Appln. No. 1473 of 1976 dated 1.7.1976, has filed a separate written statement. While supporting the plaintiffs, he prayed for the early removal of the present trustees from the office on the ground of mismanagement. The seventh defendant Sambasivam, who was added as per order in Appln. No. 606 of 1977 dated 12.4.1977, also filed a separate written statement and far from supporting the plaintiffs, be supported the Department. 13. V. Ramaswami, J. framed the following issues for trial on 12.8.1977: 1. Is the decree in O.S. No. 2467 of 1959, on the file of the City Civil Court, Madras, void, non est or unenforceable in so far as it vests the right of appointing trustees for the Sri Muthukumaraswami temple, in the second defendant or whether the decree is enforceable in full as contended by the defendants? 2. What reliefs the plaintiffs are entitled to? K.M. Natarajan, J. framed the following additional issue on 1.11.1985: Whether the suit temple is a denominational one as contended by the plaintiff? 14. On behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nary, it means: belief in, recognition of, or an awakened sense of, a higher unseen controlling power or powers, with the emotion and morality connected therewith; monastic life; a monastic order. According to the Oxford Dictionary, denomination means a collection of individual class together under the same name, equivalent to a religious sect or a body having a common faith or organisation and designated by a distinctive name. The same meaning is given in the Chambers Dictionary also. In this case, one has to find out whether the plaintiffs belong to a religious denomination, since all the plaintiffs have stated in the plaint that they belong to Hindu religion, The word Hindu itself has not been defined in any one of the texts, nor in any one of the Judge made laws. The definition of a Hindu , is also not available in the ancient texts. Even the renowned author of the Hindu law, viz., Mulla has not defined the word Hindu . According to the Concise Oxford Dictionary, Hindu means adherent of Hinduism; Indian, whereas the Chambers Dictionary defines Hindu as a member of any of the races of Hindustan or India, a believer in a form of Brahmanism. A perusal of the hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur minor schools: (1) Benares school, (ii) Mithila school, (iii) Maharashtra or Bombay school (western India), and (iv) Dravida or Madras school (southern India). The B mares school covered practically the whole of northern India, with the exception of Punjab where Mitakshara law has on certain points been considerably modified by customs. The Mithila school prevails in Tirhoot and certain districts in the 1. 1868 XII M.I.A. northern part of Bihar. The Bombay school covers western India including the whole of the old Presidency of Bombay as also Bihar. The Dravida or Madras school covers southern India including Karnataka, Andhra, Tamil Nadu, Kerala. Even though these schools differ in some respects in matters relating to adoption and inheritance, they acknowledge the supreme authority of Mitakshara. However, in Gujarat as well as in the island of Bombay and northern Konkan, Mayukha has taken the place of Mitakshara. As I stated earlier, the word Hindu was given by the British Administrators to the inhabitants of India, who are not Christians, Muslims, Parsis or Jews. The alleged Hindu Religion consists of four castes: 1. Brahmins or Priestly Caste 2. Kshatriyas or warriors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of Arts. 25, 26, 29 and 30 of the Constitution, the Hindu Marriage Act 1955, the Hindu Succession Act 1956, the Hindu Minority and Guardianship Act 1956, and the Hindu Adoptions and Maintenance Act 1956 clearly show that the word Hindu takes within its fold any person in India who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the so-called Hindu Law or by any custom or usage as part of that law, in respect of any of the matters dealt with in the provisions of the aforesaid Acts if those Acts had not been passed. The Acts apply to a person who is a Veerasaiva, a Lingaite or follower of a Brahmo Prarthana, or Arya Samaj, to any person who is a Buddhist, Jaina or Sikh by religion, but does not apply to Scheduled Tribe within the meaning of C1.(25) of Art. 366 of the Constitution, unless the Central Government by notification in the official gazette otherwise directs. It cannot be again said that Buddhism, Jainism and Sikhism are separate religions, and persons belonging to such religions may be called Hindus. However, to prove that Beri Chetty community is a religious denomination, entitled to the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is the recognition of God as an object of worship, love and obedience; right feeling towards God, as highly apprehended. Religion means the service and adoration of God or a God as expressed in forms of worship; an apprehension, awareness, or conviction of the existence of a Supreme Beingin any system of faith, doctrine and worship, as in the Christian religion, and the religions of the Orient; a particular system of faith or worship. The term religion as used in tax exemption law, simply includes: (1) a belief, not necessarily referring to super-natural powers; (2) a cult, involving a gregarious association openly expressing the belief; (3) a system of moral practice directly resulting from an adherence to the belief; and (4) an organization within the cult designed to observe the tenets or belief, the content of such belief being of no moment. While religion in its broadest sense includes all forms of belief in the existence of superior beings capable of exercising power over the human race, as commonly accepted it means the formal recognition of God, as members of societies and associations, and the term, a religious purpose , as used in the constitutional p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to Saiva Saints, the various names of the deities and different forms of worship are aimed at one Almighty. According to Saint Manickavasagar, the Almighty is worshipped in different names and different forms; in Tamil it is, Tamil According to Saint Thayumanavar, Tamil This means that there is only one God and He is all pervasive and omnipotent with reference to whom the several religions fight with each other eternally that their form of God is superior to that of the others. Hence it cannot be stated that the so-called Hindu religion believes in plurality of Gods as defined in the Consise Oxford Dictionary. The so-called Hindu religion consists of various sects with opposing principles, not only by form of worship bat also in food, language and dress. 23. As per the decision reported in S.P. Mittal v. Union India 1, the words religious denomination must take their colour from the word religion and if this be so, the expression religious denomination must satisfy three conditions: 1. It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well being, that is, a common faith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution which conveys not only the mind of the framers of the Constitution but also depicts their expectations and aspirations as to how this ancient Nation of Nations should function as a sovereign, socialist, secular, democratic republic and to secure to all its citizens: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the nation. The pre-amble of the Constitution is the basic structure of the Constitution as well as the mind of the Constitution. The Articles framed are intended to serve the spirit and substance of the preamble and Courts while interpreting the various Articles should bear in mind the spirit and substance of the preamble to the Constitution and should not interpret the provisions of the Constitution in derogation to the pith and substance of the pre amble which, according to me, forms the basic structure of the Constitution. If all the castes in India, under the guise that they form a sect by themselves and such claim is accepted as a religious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en used for holding meetings of castes and for feeding Brahmins. It was also used as a residence for the priest and other persons connected with the Madam. The High Court came to the conclusion, that since the Madam has been used as an accommodation for residence in the building, and the High Priest and other priests occasionally resided there, and that it is not used altogether at all times as a place of worship, and that the feeding of Brahmins, although it may be meritorious, is not what the Municipal Act contemplated as public worship and upheld the levy of house tax. The aforesaid decision completely disproves the claim of the plaintiffs that the Beri Ghetty community or the people belonging to the Beri Chetty community are followers of Dharmasivacharya Madam, nor is there anything to show in that decision that the community of Beri Chetty used to assemble in the Madam and observe the preachings and religious tenets of Dharmasivach arya. There is nothing in evidence to show that the Head of that Madam has returned thereafter and there used to be a religious head for Beri Chetty community from that time onwards. I am not able to comprehend as to how there could be a religious d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiffs is Krishnaswamy Chetty and others v. Veerasamy Chetty 3, which arose as a result of a person belonging to Beri Chetty community having been expelled from the caste, on the ground that he had violated the rules of the caste. As per this decision, the Beri Chetty caste is sub-divided into 18 or 20 divisions. This is contrary to the plaint allegation that Ariyavaisyar consists of 18 divisions, and that Beri Chetty is one among them. In that case, a suit was instituted by four members of the Beri Chetty caste in regard to the endowment of a religious and charitable institution styled Dharmasivacharya Madam. The plaint prays, among other things, for an account being taken of properties constituting the endowment, for their being secured for the benefit of the Institution, for scheme of management being settled, for plaintiff 1 and other competent persons being appointed as Trustees and for adequate provision being made for the due administration of the endowment The plaint also specified the several charities performed in the Madam as well as in the maintenance of a priest called Dharmasivacharyar, in the performance of certain religious rites and ceremonies, and in the feeding of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Dharmasivacharyar Madam and of the Visveswaraswami idol and be entitled to participate in the worship and services of the said Madam. According to the decision in Thambu Chetty, Subbaraya Chetty v. A.T. Arundale 1, the Head of the Madam had left the Madam along with the idol in 1876 and after that public worship had been discontinued The idol mentioned in both the decisions is not Lord Muruga which is the Presiding Deity of the suit temple, but one Visweswaraswami and hence it cannot be said that the decision in Krishnaswamy Chetty and others v. Veerasamy Chetty 2, establishes the claim of the plaintiffs that the suit temple is a denomination temple of the Beri Chetty community. 28. Even according to P.W.1, the third plaintiff, the deity of the suit temple was brought by one Velur Mari Chettiar along with his friend Kandappa Achari. While both of them were returning from Thiruporur on a Karthigai day after worshipping Lord Muruga there, they rested under a tree and went into slumber. It is stated that Lord Muruga appeared in their dream and told them that He would be found near the place where they were resting and that they could take Him and consecrate Him at Madras. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... religious denomination. 29. One another document under which the plaintiffs claim that the suit temple is a denomination temple, is Ex.P2 dated 12.1.1910, a scheme framed in C.S. No. 117 of 1907 on the file of this Court. That suit was filed by six persons for the management of the suit temple, its properties and for the conduct of election of Dharmakarthas from among the members of the Beri Chetty caste being the disciples of Sri Abinava Dharma Sivachariar reserving as far as possible full authority to the Headman to call meetin gs of the Periagramam for the purpose and maintaining the rules for the conduct of temple affairs passed at the meeting on 25.11.1906, as well as for a declaration that the third defendant therein viz., N. Thangavelu Chetty had been elected as Dharmakartha of the suit temple and as such is entitled to participate in the management and control of the temple, its properties and affairs, and for other reliefs. In that context, a scheme was framed for the election of Dharmakarthas from among the Beri Chetty caste. The framing of the scheme itself shows that there is no Guru for this religious denomination and the Court has to intervene to frame a scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mproper and against the interests of the Institution concerned. According to the appellant viz., Balakrishnan merely because trustees are being elected from a particular community, such trustees cannot be called hereditary trustees. It is one thing to say that the trustees will be always chosen from a particular community but it is quite different to cloth them with the hereditary rights of trusteeship. The appeal was heard by the same person viz., A. Uthandaraman who passed the order dated 4.7.1952 and he accepted the contentions of the appellant and set aside his own order dated 4.7.1952 passed by him as Deputy Commissioner and allowed the appeal by his order dated 17.7.1957. Till now this irregularity of the same person who passed the order under appeal hearing the appeal and passing order therein, is not noticed by anyone. However, I find this irregularity is nothing but technical, since all questions touching the dispute are being settled in this suit. The four persons viz., K. Subramaniam Chetty, S.N. Venugopal Chetty, P.E. Raghava Chetty and K. Venugopala Chetty, as trustees of the temple, filed O.S. No. 2364/57 to set aside the order dated 17.7.1957 passed by the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings of the learned III Assistant City Civil Judge are contrary to the evidence let in the suit. P.W.3, Natesa Chettiar, a retired Lecturer in Physics in the Pachaiyappa's College, belonging to the Beri Chetty caste, in his cross-examination has admitted that all Hindus can go and worship in the suit temple; there is no special ritual or pooja conducted peculiar to the temple showing the exclusive monopoly of Sivacharya's follower's. P.W.2, the Manigar of the suit temple, while giving evidence in crossexamination, has admitted that there was no difference in worship in the suit temple and the other temples of similar kind such as Sri Ekambareswarar, Vani Subramania temple, etc. The then III Asst. City Civil Judge merely extracted several paragraphs in Commissioner, H.R.E. v. L.T. Swamiar of Sri Shirur Mutt 1, and gave a finding in support of the plaintiffs case herein. In the circumstances, I find that no importance could be given to the findings of the trial Court in O.S. No. 2354 of 1957. 31. The next point urged by the plaintiffs in support of their claim is the judgment in T.T. Kuppuswami Chetty and others v. Commissioner, H.R.C.E., Madras 2. For proper appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been filed in a representative capacity and that so long as the compromise decree is in force, the compromise decree is binding on the parties thereto and as such it was open to the trustees to institute the suit to have the compromise decree set aside on grounds open to them if at all. The I Bench gave three months time to file the suit to set aside the compromise decree. It is under those circumstances, as stated in the outset, the present suit has been filed. Learned counsel for plaintiffs wants to rely upon the findings given by Ramaprasada Rao, J. in W.P. No. 2467 of 1969 in terms of S.42 of the Evidence Act. What I have stated with reference to the findings of the learned III Assistant City Civil Judge in his judgment Ex.P6 dated 5.11.1958, with reference to S.42 of the Evidence Act, is equally applicable to the judgment of Ramprasada Rao, J. in Writ Petition No. 2467 of 1969, since it was set aside by the I Bench on 28.1.1976 in W.A. No. 9 of 1973. The I Bench did not agree with the reasoning of Ramaprasada Rao, J., and to quote the I Bench: Ramaprasada Rao J. proceeded on the basis that the finding of the trial Court that the temple is a denominational one, wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the suit temple with the Madam. Thereafter, they approached the Department, claiming hereditary trusteeship and when it was negatived, ultimately by the Commissioner, they filed O.S. No. 2264 of 1957 on the file of the City Civil Court, for inconsistent relief; the first relief for hereditary trusteeship of the suit temple and the second relief to declare the plaintiffs and other members of Beri Chetty caste as religious denomination on the ground that they are disciples of Sri Abinava Dharma Sivachariar and as such they exclusively own and conduct the affairs of the suit temple through their chosen representatives. The evidence of P.W.1 herein is nothing but a narration of events stated by me, beginning from the decision in Thambu Chetty, Subbaraya Chetty v. A.T. Arundale 1 upto the filing of the present suit. P.W.1 himself has admitted that the community members feel that the temple is the property of the community founded by one of their own members. It is not his case that it was founded by the religious leader of the community for the spiritual benefit of the community so as to claim the same as a religious denomination. He also admitted that Dharmasivachariar was worshippin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spiritual benefit of their community. 35. Now, the question whether the terms of compromise dated 24.9.1963, marked as Ex.P23, is liable to be set aside, has to be considered. According to the plaintiffs, defendants 3 and 4 herein are plaintiffs 3 and 4 in O.S. No. 2364 of 1957 and they have not signed the compromise decree and only their Advocate has signed the compromise decree and since the counsel who appeared for the plaintiffs had not obtained the consent of the entire community, it will not be binding upon the community. The further case of the plaintiffs is that defendants 3 and 4 with a view to continue as trustees of the suit temple bartered away the rights of the community by their unauthorised act in having submitted to the compromise decree and the defendants 3 and 4 have no authority to represent their commuaity on 24.9.1963. It is no doubt true that on the date of the compromise, the term of office of the trusteeship of the first plaintiff R. Subramaniam chettiar expired; the second plaintiff S.N. Venugopala Chettiar was no more; and there were only the third and fourth plaintiffs who are defendants 3 and 4 herein and that they have not subscribed their signatures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency of the reference before the High Court, plaintiffs 3 and 4 in O.S. No. 2364 of 1957 defendants 3 and 4 herein, filed I.A. No. 1325 of 1959 on the file of the learned III Assistant City Civil Judge for a direction to them to continue to manage the affairs of the suit temple, pending disposal of the suit, since the term of the third plaintiff as a Trustees was expected to expire on 4.12.1959 and the jewels of the temple are kept in the double locker system with each trustee holding one set of keys and the signatures of the two trustees are necessary for operating the bank account. The learned Judge passed an interim order on 5.12.1959 appointing plaintiffs 3 and 4 as interim Receiver to manage properties and ordered notice to the Department returnable by 14.11.1959. Eventually on 18.2.1960, the following final order was passed: 1. That both the petitioners shall function as Receivers in terms (P-2 in his capacity as trustee Receiver) of the order dated 5.12.1959 till the disposal of the reference pending before High Court; 2. That the petitioners shall file the report of administration into Court once in two months; 3. And that there shall be no order as to costs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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