AS/440/1988 of ASST. COMMISSIONER (JUDICIAL) Vs M PERUMAL on 30 April 2000

:JUDGMENT

P. THANGAVEL, J.This appeal has been filed by the defendants as appellants against thejudgment and decree dated 25.3.1986 and made in O.S.No.29 of 1984 on the file

2. The facts that are necessary for disposal of this First Appeal are as follows:- Arulmigu Kannimar Temple at Chinnapatti village, Kancharampettai,Madurai North Taluk, Madurai District is an ancient temple and for the supportof the said temple an Inam grant has been awarded by ancient Rajas. The saidInam was confirmed by the Inam Commissioner in the year 1865. The temple andthe lands granted for maintenance of the said temple were managed by oneManicka Gounder and his descendants hereditarily as hereditary trustees. Thegenealogy of the descendants of Manicka Gounder is annexed to the plaint. Asper Inam Fair Register, permanent tenure was granted in favour of ManickaGounder as worshiper of the said temple meaning thereby as poojari of the saidtemple. The said Manicka Gounder had three sons, viz., Manicka Gounder,Perumal Gounder and Andiappa Gounder. Plaintiffs 1 and 2, who are respondents1 and 2 herein, are grand sons of Manicka Gounder, first son of granteeManicka Gounder, while the plaintiffs 3 and 4, who are respondents 3 and 4herein, are great great grand sons of Perumal Gounder, second son of granteeManicka Gounder. The plaintiffs 5 to 7, who are respondents 5 to 7 herein,are the descendants of Andiappa Gounder, who is third son of grantee ManickaGounder. The respondents 1 to 7 herein were keeping the management of thetemple by remaining in possession of the lands given by Inam Commissioner asgrant for the maintenance of the temple. The respondents 1 to 7 herein havebeen in management of the said temple by possessing the lands granted formaintenance of the temple without any interference from any quarters by payingkist. Ryotwari patta for the above said lands has been granted in favour ofthe temple by the Settlement Tahsildar by order dated 5.10.1966.

3. The respondents herein filed a petition in O.A.No.129 of 1979

3. The respondents herein filed a petition in O.A.No.129 of 1979

before the Deputy Commissioner, Hindu Religious and Charitable EndowmentBoard, Madurai under Section 63(b) of the Hindu Religious and CharitableEndowment Act 22 of 1959 (hereinafter referred to as "the Act") for an orderdeclaring that the respondents herein were holding the office of trusteeshipof the temple hereditarily. The Deputy Commissioner (Judicial) HinduReligious and Charitable Endowment at Madras, the first defendant, aftertransfer of the above said O.A.No.129 of 1979, had declared the office held bythe respondents herein as hereditary trusteeship. The accounts were auditedand payment of contribution and audit fees were also made by the respondentsherein to the above said Department. The Commissioner of Hindu Religious andCharitable Endowment, Madras, the second defendant on unseen allegations tookup a suo motu appeal against the said order in A.P.No.57 of 1981 and cancelledthe order passed by the first defendant on the ground that the respondentsherein are not the descendants of Manicka Gounder referred to in the Fair InamRegister and they are not hereditary trustees in management of the temple. Itis under the said circumstances, the respondents herein as plaintiffs havefiled the suit to set aside the order of the Commissioner of Hindu Religiousand Charitable Endowment Department, Madras-34 in A.P.No.57 of 1981 dated5.8.1983 and to declare that the respondents herein are holding the office oftrusteeship of Arulmigu Kannimar Temple at Chinnapatti village,Kancharampettai, Madurai North Taluk, Madurai District hereditarily.

4. The appellants as defendants resisted the claim made by the respondents herein as plaintiffs on the following grounds:- The respondentsherein are not hereditary poojaries cum trustees of Arulmigu Kannimar Templeat Chinnapatti village. In the Inam Fair Register one Manicka Gounder wasshown as worshiper and not as poojari. The term worshiper and poojari aredifferent in all aspects and therefore, worshiper cannot be known as poojariof temple. The alleged ancestors of the respondents herein were not managingthe affairs of the temple as poojaries and hereditary trustees. Theallegation of no interference in the alleged right of the respondents hereinas poojaries or trustees for generation is also not correct. The genealogyfurnished along with the plaint is not admitted and the same has to be proved.The lands shown in Fair Inam Register were granted as Devadayam for the upkeepof the temple. After holding an enquiry under Minor Inams Abolition Act,1963, ryotwari patta was issued in the name of the temple by the SettlementTahsildar, Unit No.I, Madurai in S.R.621/MI Act/MDU-66 dated 5.10.1966 for anextent of 5.69 Acres for the upkeep of the temple as Devadayam in T.D.No.159.No patta was granted in favour of the alleged ancestors of the respondentsherein treating them as poojaries of the temple. On the application made bythe respondents herein in O.A.No.129 of 1979 under Section 63(b) of the Act,the respondents herein were declared as hereditary trustees of the saidtemple. They cannot be declared as hereditary trustees under the above saidAct. Therefore, a suo motu proceeding was initiated under Section 69(2) ofthe Act in A.P.No.57 of 1981 and the order of the first defendant was setaside by the second defendant by order dated 10.12 .1980. There is noevidence to show on the side of the respondents herein that they are inmanagement of the temple for more than 3 generations or over 100 years toclaim hereditary trustee. The order passed by the second defendant inA.P.No.57 of 1981 is valid and legal and cannot be assailed. The fact ofcultivating the lands and paying kist on behalf of the temple by therespondents herein will not confer them to claim poojariship or hereditary trusteeship and the respondents herein are not entitled to the relief soughtfor in the suit and the suit is not maintainable. It is on these grounds, theappellants as defendants have sought for dismissal of the suit.

5. After considering the submission made on both sides in the lightof the material evidence available on record, the trial Court has come to aconclusion that the ancestors of the respondents herein and after them, therespondents herein are in management of the temple and its lands as poojariescum hereditary trustees and accordingly declared the respondents herein ashereditary poojaries cum trustees thereby setting aside the order of thesecond appellant dated 10.12.1980. Aggrieved at the judgment and decree dated25.3.1986 and made in O. S.No.29 of 1984 on the file of the learnedSubordinate Judge, Madurai, the defendants as appellants have come forwardwith this appeal.

6. The points for determination in this appeal are:-

(1) Whether the respondents herein are descendants as shown in thegenealogy annexed to the plaint to Manicka Gounder referred to in the FairInam Register and whether the said Manicka Gounder and after him the respondents herein, as descendants, continued to manage the affairs of thetemple by remaining in possession of the lands granted for the upkeep of thesaid temple as poojaries cum hereditary trustees?

(2) Whether the order of the second appellant dated 5.8.1983 and madein A.P.No.57 of 1981 is liable to be set aside?

7. Points 1 and 2:- The first plaintiff M.Perumal Gounder was examined as P.W.1 and one Thirumal Asari was examined as P.W.2 apart frommarking Exs.A-1 to A-12 on the side of the respondents herein. The appellantshave produced Exs.B-1 and B-2, but had not let in any oral evidence on theirside.

8. Admittedly, Arulmigu Kannimar Temple at Chinnapatti village, Kancharampettai, Madurai North Taluk, Madurai District was having 11 cents inSurvey No.90/1 and 5.45 Acres in Survey No.90/3 in the above said village byvirtue of the Inam grant made by ancient Rajas. The said Inam was confirmedby the Settlement Authorities in favour of the temple in the year 1865 as seenfrom the admission made in the pleadings in the plaint. Even though P.W.1 hadclaimed that the said temple is the family deity of the respondents herein andtheir ancestors on the ground that it was constructed only by Manicka Gounder,there is no pleadings to that effect in the plaint. There is also no evidenceon the side of the respondents herein to show that the construction of thetemple was made by Manicka Gounder, except the interested testimony of thefirst respondent herein. P.W.2 Thirumal Asari, who was examined in support ofthe case of the respondents herein, would also state that he does not know asto who had constructed the demised temple. Therefore, the claim made by therespondents herein that the demised temple was constructed only by ManickaGounder and the said temple was treated only as family deity cannot besustained.

9. Of course the respondents herein have claimed as descendants of Manicka gounder, who was aged about 96 years as seen from the Fair InamRegister, Ex.A-1 as on 27.9.1863. To establish that the respondents hereinare descendants of said Manicka Gounder, it is pleaded in the plaint that oneManicka Gounder, Perumal Gounder and Andiappa Gounder were the sons of thesaid ancestor Manicka Gounder mentioned in Ex.A-1. It is also pleaded thatthe respondents 1 and 2 are the grand sons of Manicka Gounder, the first sonof Manicka Gounder referred to in Ex.A-1, while the respondents 3 and 4 arethe great great grand sons of Perumal Gounder, the second son of above ManickaGounder referred to in Ex.A-1. It is also pleaded that the plaintiffs 5 to 7are the descendants of Andiappa Gounder, the third son of Manicka Gounderreferred to in Ex.A-1. In support of such claim, a genealogy table wasannexed to the plaint.

10. In support of the evidence of P.W.1 with regard to the pleadings

10. In support of the evidence of P.W.1 with regard to the pleadings referred to above, Thirumal Asari was examined as P.W.2. He is admittedly notrelated to the family of the respondents herein. P.W.2 would admit during thecross-examination that he does not know as to who had constructed the templeat ancient time and does not know who was managing and administering the affairs of the demised temple. Though P.W.2 claims that there are about 4 to5 acres of lands to the above said temple, he did not know the survey numbersof the above said lands. P.W.2 claims that the respondents 1 to 7 arecultivating the lands of the temple separately. But he did not know in whosename, the patta for the said lands is standing. He further would admit thathe does not know anything about Manicka Gounder.

11. Ex.A-12 is the audit report submitted by Assistant Audit Officerof Hindu Religious and Charitable Endowment, Administration Department (AuditWing) of Madurai to the Assistant Commissioner of Hindu Religious andCharitable Endowment, Administration Department, Madurai on 23.2.1982. Aperusal of Ex.A-12 audit report, inter-alia, would disclose that therespondents herein had given statements in writing to the audit party that thedemised temple owns 5.69 acres of punja lands at Chinnappati village and thesaid lands were leased out to various persons for a total sum of Rs.1,200/-per fasli from fasli 1383 to fasli 1387 and for Rs.1,500/- per fasli fromfasli 1388 to fasli 1390. If the statement made by the respondents to theaudit party as referred to in Ex.A-12 is taken into consideration, theevidence given by P.W.2 that the lands owned by the temple was cultivatedseparately by the respondents 1 to 7 herein in part cannot be true. If thenature of the evidence given and admission made by P.W.2 duringcross-examination including that he does not know anything about ManickaGounder referred to in Ex.A-1 are taken into consideration, it is clear thatP.W.2 cannot have knowledge about Manicka Gounder referred to in Ex.A-1 andhis descendants as stated in the chief-examination and that P.W.2 had comeforward to give evidence only to support P.W.1 as he is from the same place.Therefore, the evidence of P.W.2 cannot be safely acted upon to hold that thegenealogy annexed to the plaint is true. Except the unacceptable evidence ofP.W.2, there is no other evidence to prove the genealogy.

12. In State of Bihar - vs. - Radha Krishna Singh, 1983(3) S.C.C. 118, the Honourable Apex Court was pleased to hold as follows:- "..... before going to the oral, documentary and circumstantial evidence, it may be necessary to state the well established principles in thelight of which we have to decide the conflicting claims of the parties. Itappears that the plaint genealogy is the very fabric and foundation of theedifice on which is built the plaintiff's case. This is the starting point ofthe case of the plaintiff which has been hotly contested by the appellant. Insuch cases, as there is a tendency on the part of an interested person or aparty in order to grab, establish or prove an alleged claim, to concoct,fabricate or procure false genealogy to suit their ends, the Courts in relyingon the genealogy put forward must guard themselves against falling into thetrap laid by a series of documents or a labyrinth of seemingly old genealogiesto support their rival claims.

The principles governing such cases may be summarised thus:

(1) Genealogies admitted or proved to be old and relied on in previous casesare doubtless relevant and in some cases may even be conclusive of the factsproved but there are several considerations which must be kept in mind by the (a) Source of the genealogy and its dependability.

(b) Admissibility of the genealogy under the Evidence Act.

(c) A proper use of the said genealogies in decisions or judgments on whichreliance is placed.

(d) Age of genealogies.

(e) Litigations where such genealogies have been accepted or rejected.

(2) On the question of admissibility the following tests must be adopted:

(a) The genealogies of the families concerned must fall within the fourcorners of Section 32(5) or Section 13 of the Evidence Act.

(b) They must not be hit by the doctrine of post litem motam.

(c) The genealogies or the claims cannot be proved by recitals, depositions orfacts narrated in the judgment which have been held by a long course ofdecisions to be inadmissible.

(d) Where genealogy is proved by oral evidence, the said evidence must clearlyshow special means of knowledge disclosing the exact source, time and thecircumstances under which the knowledge is acquired, and this must be clearlyand conclusively proved." (emphasize supplied)

If the principles laid down by the Honourable Apex Court in the case citedabove is taken into consideration, it is clear that the Courts which relies onthe genealogy put forward by one of the parties must guard themselves againstfalling into the trap laid by a series of documents or a labyrinth ofseemingly old genealogies to support their rival claims. In this case, theevidence of P.W.2, who is nothing to do with the family of the respondentsherein alone is available. But there is nothing to show about the specialmeans of knowledge disclosing the exact source, time and the circumstancesunder which P.W.2 had acquired knowledge about the descendants of ManickaGounder mentioned in Ex.A-1 whom P.W.2 admits to have no knowledge to speakabout genealogy or descendantship. If a cautious approach is made with regardto the genealogy in the light of the evidence given by P.W.2, it is clear thatthe genealogy pleaded by the respondents herein by annexing the same in theplaint cannot be accepted as rightly pointed out by the second appellant inhis order Ex.A-9 dated 5.8.1963 in A. P.No.57 of 1981 setting aside the orderof the first appellant as seen in Ex.A-7 dated 10.12.1980 in O.A.No.129 of1979 after issuing notice to the respondents herein as seen in Ex.A-8 dated14.10.1981. It is relevant to point out that the second appellant in hisorder referred to above had specifically mentioned that there is no proof forgenealogy establishing that the respondents herein are the descendants ofManicka Gounder referred to in Ex.A-1. If the circumstances stated supra areconsidered, it cannot be held that the respondents herein as plaintiffs have

13. The learned Special Government Pleader, Mr.G.Sukumaran, hasbrought to the notice of this Court, the decision of a Division Bench of thisCourt reported in the Commissioner, Hindu Religious and Charitable Endowment(Administration) Department, Nungambakkam High Road, Madras 600 034 and 2others — vs. - Srimathi and another, 2001(4) C.T. C. 469. The DivisionBench of this Court, relying on the decision reported in 1983(3) S.C.C. 118referred to above, has held that the plaintiff, who has filed a genealogy treeto claim that he is hereditary trustee of a temple, has to prove the same tothe satisfaction of the Court and if the said plaintiff fails to prove thesaid genealogy, he has to be non suited. If the said decision rendered by aDivision Bench of this Court is applied by way of analogy, for want of proofof genealogy by the respondents herein, they have to be non suited.

14. A perusal of Ex.A-1 Fair Inam Register would disclose that the

14. A perusal of Ex.A-1 Fair Inam Register would disclose that the grant of the above said 5.69 Acres of Devadayam lands was awarded for thesupport and upkeep of Arulmigu Kannimar Temple at Chinnapatti village, as apermanent and tax free grant. The perusal of Ex.A-1 further would disclosethat Manicka Gounder mentioned therein was described only as a worshiper. In2001(4) C.T.C. 469 cited above, the Division Bench of this court has heldthat worshiper means person who comes to worship and worshiper cannot betreated as trustee or manager. It is also held that the ancestor of theplaintiff shown as worshiper in Fair Inam Register can neither be a trusteenor a manager and therefore, the plaintiff cannot be declared as hereditarytrustee as descendant. With due respect such earlier decision of the DivisionBench of this Court has to be followed by this Bench, unless this Benchdissent to that verdict by referring the matter to a larger Bench. As thereis no ground to dissent the earlier decision referred to above, it has to beheld following the earlier decision that Manicka Gounder, who was described asworshiper in Fair Inam Register, cannot be treated as poojari or trustee ormanager of Arulmigu Kannimar Temple at Chinnapatti village, so as to enablethe respondents herein to claim as poojaries or trustees or managers of thesaid temple as descendants, even if it is taken for argument sake that theyare descendants of the said Manicka Gounder.

15. The learned counsel appearing for the respondents herein hasbrought to the notice of this Court the entries made in Ex.A-1 " renders poojaon important days" and would contend that the above entries in Ex.A-1 woulddisclose that Manicka Gounder was poojari of the said temple. But the learnedSpecial Government Pleader appearing for the appellants would contend contrastating that there is nothing in Ex. A-1 to show that Manicka Gounder wastreated as a poojari or a trustee of the said temple. A careful perusal ofthe above said entries would disclose that Manicka Gounder was not recognizedas poojari or trustee or hereditary trustee of the said temple, but it wasmentioned that he has to render pooja on important days from and out of theincome derived from the lands to which patta stands in the name of ArulmiguKannimar Temple at Chinnapatti village. It will mean, as rightly pointed outby the learned Special Government Pleader appearing for the appellants that hehas to give out of the income from the lands to do pooja on important days andit will not mean that he should do poojas as poojari in the said temple.

Therefore, the contention raised by the learned counsel appearing for therespondents herein as mentioned above cannot be accepted.

16. Ex.A-2 dated 5.10.1966 is the proceedings of the SettlementTahsildar (Minor Inams), Unit No.I, Madurai in S.R.621/MI Act/MDU/66. Aperusal of Ex.A-2 would disclose that the respondents herein and othersmentioned therein had claimed before the Settlement Tahsildar ( Minor Inams)to issue patta for 11 cents in Survey No.90/1 and 5.45 acres in SurveyNo.90/3, Chinnapatti village as descendants of Manicka Gounder, who was saidto be in possession of the said lands by rendering pooja service to ArulmiguKannimar Temple at Chinnapatti village. The Settlement Tahslidar (MinorInams), who held an enquiry in connection with issue of patta to the abovesaid lands, has pointed out the non-production of any record to prove theoccupation of the said lands by the claimants therein, i.e., the respondentsherein or to show that they are the descendants of original possessee. Butthe evidence of the karnam of the said village before the said Authority haddisclosed that the claimants are in possession of the said lands to renderpooja for the said temple. Even after the said evidence given by the Karnamof the said village, the Settlement Tahsildar (Minor Inams) had come to aconclusion that mere possession of the lands will not enable them to getryotwari patta and accordingly granted ryotwari patta to the said lands in thename of Arulmigu Kannimar Temple for its support and upkeep. Therefore, it isevident from the order of the Settlement Tahsildar (Minor Inams) dated5.10.1966, that the respondents herein as claimants did not produce anymaterial evidence to establish that they are the descendants of ManickaGounder mentioned in Ex.A-1 even on 5.10.1966 in the equiry and their claimfor ryotwari patta has been negatived and ryotwari patta was issued in thename of Arulmigu Kannimar Temple for its upkeep and maintenance. The saidorder has become final and the said order cannot be assailed by therespondents herein at this stage stating that the Settlement Tahsildar (MinorInams) is not competent to decide the descendantship of the respondents hereini.e. as not the descendants of Manicka Gounder mentioned in Ex.A-1. ThisCourt holds that the Settlement Tahsildar (Minor Inams) is the competentauthority to decide the descendantship in the light of the evidence let in bythe respondents herein to hold as to whether the respondents herein areentitled to claim ryotwari patta to the lands as against Arulmigu KannimarTemple or not. The fact of paying kist as seen in Exs.A-3 and A-4 and thefact of paying tax for tree as seen in Ex.A-5 for the above said lands willnot in any way alter the situation to hold that the respondents herein are the descendants of late Manicka Gounder and after him, the respondents herein havecontinued to manage the affairs of the Arulmigu Kannimar Temple either aspoojaries or as hereditary trustees.

17. If really the respondents herein were doing poojas as poojariesand managing the affairs of temple as hereditary trustees for long many years,they should have maintained bank account and account books for the income andexpenditure of the administration of the temple. The festivals of the abovesaid Aulmigu Kannimar Temple ought to have been celebrated for whichpublication should have been made by means of pamphlets, etc., and expenditureshould have been incurred after collecting donations, etc., from others.

Service of various persons should have been engaged for cleaning and whitewashing, etc., of the temple and also for conducting festivals in the saidtemple. No documentary evidence or oral evidence was produced before thetrial Court to establish the above said facts.

18. As already pointed out, an audit party had inspected the templeand submitted an audit report as seen in Ex.A-12 to the Assistant Commissionerof Hindu Religious and Charitable Endowment, Administration Department,Madurai-1. A perusal of Ex.A-12 would disclose that a general account wasopened only in the fasli 1383 with nil balance and the same was closed withbalance of Rs.203/- at the end of fasli 1390. The financial position of thesaid temple is fairly satisfactory and the financial position of theinstitution can be improved by finding out ways and means as seen from theaudit report. It is also evident that budget estimates for the faslis from1383 to 1390 were not prepared and got approved by the Assistant Commissionerof Hindu Religious and Charitable Endowment, Administration Department,Madurai-1. There is also no material to prove the income out of leasing thelands to various parties. While commenting about the ways in which the landswere leased out, the audit party has found that there is no MiscellaneousDemand Register in prescribed form for being audited by the Department. Thereis also no maintenance of Property Register under Section 29 of the Act andgot approved by the Deputy Commissioner, Hindu Religious and CharitableEndowment Administration Department, Madurai. There is also no DhittamRegister under Section 58 of the Act and got approved by the AssistantCommissioner, Hindu Religious and Charitable Endowment, AdministrationDepartment, Madurai. There is also no register showing the stock of jewelsbelonging to the temple for inspection. A report has to be obtained from theSpecial Deputy Collector for Temple lands for audit purpose. It will showthat the above said lands of the temple were not treated as temple lands bythe respondents herein and were treated as if the lands are theirs. 1 to 18statements required to be prepared as per Commissioner's instruction inR.C.No.32452/78/C1 dated 2.6.78 were also not prepared and sent to theAssistant Commissioner referred to above for approval. No schedule wasprepared and got approved by the Assistant Commissioner referred to above forincurring expenditure of a total sum of Rs.170/- per fasli towards the pay ofEstablishment. For want of preparation of the said schedule, the correctnessof the amount paid could not be effectively checked up by the auditDepartment. The moneys collected should have been deposited in scheduled bankand withdrawn as and when required. But the moneys collected were said tohave been directly utilised for expenditure without following procedure aspointed out above. There is no Miscellaneous Deposit Register, AdvanceRegister, Deposit Register, Paditharam Stock Register, etc., in the temple asseen in Ex.A-12. It would disclose that there is no administration withregard to the affairs of the temple in the hands of respondents herein andtherefore the respondents herein cannot claim that they are managing theaffairs of the temple as they are in possession of the temple lands.

19. Even though, the Deputy Commissioner (Judicial), Hindu Religiousand Charitable Endowment Department, Madras-34 has declared that therespondents herein are hereditary trustees for Arulmigu Kannimar Temple, inO.A.No.129 of 1979, the said order has been set aside after issuing notice as

seen in Ex.A-8 to the respondents herein by the second appellant. Whilesetting aside the order of the first appellant, the second appellant has takeninto consideration of the facts that there are no documents to show for thecontinuous management of the temple by the family of the respondents herein,that Manicka Gounder was mentioned in Ex.A-1 only as worshiper and not astrustee or poojari, that the respondents herein had not proved the genealogyand the same has not been taken into consideration by the Deputy Commissioner,that there is no evidence regarding succession to the alleged trusteeship andthat the names of one Kanniappan and Ramanathan, whose names have beenmentioned in document Ex.A-4 produced before the Deputy Commissioner, has notbeen mentioned in the genealogy trees produced by the respondents herein.Since the order of hereditary trusteeship passed by the Deputy Commissioner(Judicial), Hindu Religious and Charitable Endowment Department has beencancelled only on valid grounds by the second appellant, the said order cannotbe set aside as unsustainable as claimed by the respondents herein.

20. The learned counsel appearing for the respondents herein contends that this temple is a small temple with meagre income and that therefore thereis nothing illegal in the hereditary poojariship and trusteeship vesting inthe same individuals. In Muthusamy Gurukal — vs. - Aiyaswami Thevar andsixteen others, 1964 (2) M.L.J. 560, a Division Bench of this Court has heldas follows:- "There is nothing illegal in hereditary trusteeship and poojarishipbeing combined in the same person, especially in the case of small templeswhere there has been no interference of control by any of the villagers of theplace. In the case of small village temples, where the temple property is ofinsignificant value and the income is hardly sufficient even to meet theroutine expenses of the temples, if the archaka or the poojari is left inmanagement of the temple lands and the affairs of the temple without anyinterference by any of the villagers for a long number of years, it has to bepresumed that with the consent and acquiescence of the worshippers of thevillage the poojari is the trustee as well. In such a case it must be heldthat the poojari managing the lands and affairs has made out his right tohereditary trusteeship and the interests of the temple are not likely tosuffer, when the person concerned admits that the lands, are temple lands andhas never set up any rights to them as his own property."

In Venkataraman — vs. - L.A.Thangappa Gounder, 84 Law Weekly, 695, a DivisionBench of this High Court has also observed following the decision referred toabove that there is nothing illegal in the hereditary poojariship andtrusteeship in the same individuals in small temples with meagre income. Inthis case there is no proof, as already pointed out, that the respondentsherein are the descendants of Manicka Gounder referred to in Ex.A-1. There isalso no proof that Manicka Gounder was at any time recognized as poojari orhereditary trustee so as to lay a claim by the alleged descendants of the saidManicka Gounder as hereditary poojaries and hereditary trustees of the temple.There is also no evidence on the side of the respondents herein to establishthat they were doing poojas holding hereditary trusteeship by managing theaffairs of the temple. It is relevant to point out that the respondentsherein had laid a claim for issue of ryotwari patta in their names for the

lands claiming as descendants of Manicka Gounder mentioned in Ex.A-1 and theirclaim was negatived for want of proof on the side of the respondents hereinand ryotwari patta was issued in the name of Arulmigu Kannimar Temple for itsmaintenance and upkeep. The above said facts would disclose that therespondents herein had started acting against the interest of the temple landseven at the time of issue of ryotwari patta in the name of Arulmigu KannimarTemple. Ex.A-11 dated 13.7.1981 is the registered sale deed executed by oneKunjaram Ammal in favour of Dhavamani, the third respondent herein forRs.3,060/-. A perusal of Ex.A-11 would disclose that Kuppayandi Gounder, thefather of the third respondent herein and grand son of Perumal Gounder who issaid to be the son of Manicka Gounder mentioned in Ex.A-1, had sold 36 centsout of 5.45 acres in Survey No.90/1 for which ryotwari patta was issued in thename of Arulmigu Kannimar Temple, Chinnapatti village, to Kunjaram Ammal on1.6.1968. The said property, which is the property owned by Arulmigu Kannimartemple, was purchased in the name of third respondent from Kunjaram Ammalunder Ex.A-11 wherein it was described that the third respondent herein is theabsolute owner of the said property. There is nothing to show that the saidproperty was purchased by third respondent herein in the name of ArulmiguKannimar Temple, but only in his name as absolute owner thereof. The abovesaid transactions would disclose that the father of the third respondentherein had sold the temple property in the name of third party and from thesaid third party, the property was again got back in the name of the thirdrespondent herein as absolute owner thereof. This will clearly show that therespondents herein are acting against the interest of the temple property andcreating documents with regard to the properties owned by the templethroughout. Therefore, the respondents herein are not competent persons toadminister the affairs of the temple by remaining either as poojari or astrustee, even in the light of the decision already rendered by a DivisionBench of this Court. Therefore, the contention raised by the learned counselfor the respondents herein that there is nothing illegal in the hereditarypoojariship and trusteeship vesting in the same individuals if the temple is asmall temple with meagre income, cannot be sustained.

21. It has been held in T.P. Srinivas Chariar and another — vs. -C.N.Evalappa Mudaliar, A.I.R. 1922 Privy Council, 325 as follows:- "It will now be seen how serious is the position of the respondent asa claimant for the continuance of the trusteeship of this temple and itsendowments. The doubts in the minds of the Courts below, on the subject ofthis being allowed to continue in office, are sufficiently plain. But when itis now decided that the whole of this litigation has substantially beenoccupied by an unfounded assertion, supported by the concoction of accounts an assertion by the trustee of private ownership in himself and a powerfulresistance to the recovery of these properties for the trust which headministers - it does not appear to their Lordships to be open to them, on anysound principles either of administration or of law, to permit the continuanceof the respondent in the office of Dharmakartha."

In this matter even at the initial stage the respondents herein had claimedissue of ryotwari patta in their names for the lands of Arlmigu KannimarTemple instead of claiming for issue of ryotwari patta in the name of the said temple. The said claim of the respondents herein was negatived. Now aspointed out above, a sale deed was created with regard to 36 cents out of thelands owned by the temple in favour of third party and again in favour of thethird respondent herein. If the said facts are taken into consideration, inthe light of the principles laid down by the Honourable Privy Council, therecan be no doubt that the respondents herein cannot be permitted to continue inthe office as poojaries or hereditary trustees of the said temple.

22. In view of the foregoing reasons this Court is not able to concurwith the findings of the trial Court that the respondents herein as plaintiffsare entitled to the relief sought for in the suit. Therefore, the judgmentand decree of the trial Court have to be set aside and accordingly set aside.The points are answered accordingly in favour of the appellants.

23. The appellants are hereby directed to take steps immediately torecover the property sold and transferred in the name of third respondentherein as absolute owner thereof with regard to the portion of the propertiesto which ryotwari patta was issued in the name of Arulmigu Kannimar Temple,Chinnapatti, without further loss of time.

24. In fine, the judgment and decree of the trial Court are set asidethereby dismissing the suit and the appeal stands allowed with costs.

Index: Yes. (N.V.B.,J.) (P.T.,J.)

Internet:Yes.

ts.

To

1) The Subordinate Judge,Madurai.

2) The Section Officer,V.R.Section,High Court,Madras.