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how to determine whether the property is a public temple or belongs to private math?- golden principles-whether an endowment is of a private or of a public nature : (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by member of the public is as of right; (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature; (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.” « advocatemmmohan


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Reportable


IN THE SUPREME COURT OF INDIA


CIVIL APPELLATE JURISDICTION


CIVIL APPEAL NO.8439 OF 2001





Parasamaya Kolerinatha Madam, Tirunelveli ... Appellant


Vs.


P.Natesa Achari & Ors. ... Respondents





J U D G M E N T





R.V.RAVEENDRAN, J.





The appellant Math was the plaintiff in a suit (C.S.No.2/1983) filed


against the respondents 1 and 2 (defendants 1 and 2) and two others on the


file of the Madras High Court. The appellant math situated in Tirunelveli,


claims to be the owner of property bearing No.16, Chandrabanu Street,


Komaleeswararpet also described as Komaleeswaranpettai, Chennai


(described in the first schedule to the plaint) known as Parasamaya

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Kolerinatha Madam and several idols including those of Goddess


Meenakshi, Lord Vigneshwara, Lord Murugan installed therein (described in


the second schedule to the plaint), together referred to as the `suit property'.





2. The plaint averments in brief are: The appellant is a Math established


several centuries ago at Tirunelveli by Swami Anavaratha Soundaraja


Perumal. The Mathadhipathi of the Math is elected for life by the


Viswakarma community. In the year 1922, a suit (OS No.58/1922 as the file


of the Sub-court, Tirunelveli) was filed for framing a scheme for regulating


the succession and administration of the plaintiff Math and its properties. In


the said suit, a scheme was framed by order dated 2.5.1925. The suit


property was one of the properties shown as vested in the Math in the final


decree in the said scheme suit. The suit property was owned by the plaintiff


Math for several centuries and the Head of the Math would stay there during


his visit to the city. His disciples were regularly using the premises and


staying therein. The Math premises were being managed by a nominee of the


Math. The idol of Goddess Meenakshi and the statue of the Head of the


Math with his Padukas were installed by the Math in the suit property in the


eighteenth century and were worshipped by the disciples of the Math and


other devotees. As the Headquarters of the Math was situated at the far-away

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Tirunelveli, the Mathadhipathi had entrusted the management of the said


Math property to nominated Agent/s who were the local elders of the


Viswakarma community. When a new Mathadhipathi was installed on


17.8.1981, he sent his agent to routinely enquire about the affairs of the


Math property in Chennai and learnt that the persons earlier managing the


property had handed over the management to defendants 1 and 2. When the


Mathadhipathi visited Chennai in 1982 and stayed in the suit property. One


R. Venugopal Achari who was appointed to look after the suit property in


the year 1963, informed the Mathadhipathi that he had handed over


management to Kanagasabapathy Achary who in turn handed over


management to defendants. When the Mathadhipathi sent word to


defendants to come and discuss the affairs of the Math, they did not turn up,


but the community people spoke to the Mathadipathi and made several


complaints about the irregular and ineffective management by defendants 1


and 2. Further inquiries revealed that defendants 1 and 2 were attempting to


claim that the suit property with the Meenakshiamman idol as a temple


independent of the Math, managed by the local Viswakarma community and


had arranged for Kumbabishekam without the knowledge and consent of the


Mathadhipathi. In view of the above, the plaintiff Math filed the said suit


and sought a declaration of title to the suit property (with the idols and

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movables therein) and delivery thereof.





3. Defendants 1 and 2 resisted the suit. They contended that the suit


property (describing it as the Meenakshiamman temple) was a


denominational temple that has been in existence for the benefit of the


members of the Viswakarma community living in Komaleeswararpet in


Chennai. The suit property was a temple and the Math did not `exist' in the


suit property. The plaintiff Math had no connection with the suit property.


Neither the final decree nor the scheme in the scheme suit (O.S.No.58 of


1922) relating to the plaintiff Mutt was binding on the members of the


community living in Komaleeswararpet in Chennai as they were not parties


to the scheme suit. Though the temple in Komaleeswararpet was dedicated


to Goddess Meenakshiamman, as Parasamaya Kolerinatha Swami was a


great saint and Guru of Viswakarma community, the said temple was also


called by the name of the said Swami, but the plaintiff Math has nothing to


do with the suit property. The said denominational temple was under the


management of the members of the Viswakarma community through their


elected representatives. In the beginning of the twentieth century, one


Arumuga Achary was managing the affairs of the temple. Later one C. V.


Raju Achary was the trustee till 1938. From 1938, Adhimoola Achary

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functioned as a Trustee with the assistance of a committee of members.


Kanagasabai Achari became the Trustee in 1963 and in 1969, first and


second defendants along with one more person were elected as trustees and


they were in management. The idols and statues in the temple were installed


by the members of the Viswakarma community of Komaleeswararpet and


not by the plaintiff Math. The community performed the Kumbhabhishekam


of the temple on 21.1.1983. They filed a petition in the office of the


Commissioner for Religious and Charitable Endowments for framing a


scheme for the said temple by impleading the plaintiff math as a respondent.


The property did not belong to the Math and that for more than a century,


the property has been under the absolute control of the members of the


Viswakarma community of Komaleeswararpet. As the suit property was a


temple and not a Math as defined under the Tamil Nadu Hindu Religious


and Charitable Endowments Act, 1959 (for short `the Act') and as the


plaintiff Math have nothing to do with the property, the suit was not


maintainable and was liable to be dismissed.





4. The High Court framed four issues. The main issue was whether the


plaintiff Math was entitled to the ownership of the suit property and if so


whether it was entitled to recover possession. Both sides led oral and

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documentary evidence. After detailed consideration of the several


documents exhibited by the parties and the oral evidence, the learned Single


Judge who tried the suit, decreed the suit by judgment and decree dated


20.4.1993. He held that there was abundant evidence to show that the suit


property belonged to the plaintiff Math and it was not the property of


Viswakarma community residing at Komaleeswararpet, Chennai. He also


accepted the case of the plaintiff Math that the Thirty Second Head of the


plaintiff Math had installed the idol of the Goddess Meenakshi more than


two centuries ago. The learned Single Judge also referred to the series of


documents produced by the defendants themselves which stated that


Meenakshiamman temple was situated in Parasamaya Kolerinatha Swami


Math. The learned Single Judge held that merely because idols were


installed and worshipped in a Math premises, the property will not cease to


be a Math nor will it become a place of public religious worship.


Consequently the learned Single Judge decreed the suit granting declaration


of title and directing delivery of possession of the suit property to the


plaintiff Math.





5. Feeling aggrieved, defendants 1 and 2 filed an intra-court appeal. A


Division Bench of the High Court allowed the said appeal (OSA

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No.29/1994) by the impugned judgment dated 29.4.1999. The division


bench held that the oral and documentary evidence established the existence


of Meenakshiamman temple in the suit property, possessing the


characteristics of a temple. The Managing Committee elected from


Viswakarma community was managing the said temple, attending to its


repairs, paying municipal taxes and conducting festivals. It held that the


characteristics of a Math were absent and the plaintiff Math had failed to


prove that the affairs of the Math alone were carried on in the premises; and


as the goddess Meenakshiamman was being worshipped by the public and


temple festivals were being regularly conducted, the finding of the learned


Single Judge that the installation of idol of Meenakshi did not extinguish the


rights of the Math, was not sustainable. The division bench held the suit


property to be a `temple' and consequently dismissed the suit. The said


judgment and decree is challenged in this appeal by special leave.




6. On the contentions urged three questions arise for consideration :




(i) Whether the suit property belongs to the Plaintiff Math?


(ii) Whether the Division Bench ignored the material documents

exhibited by plaintiffs and defendants in holding that the suit

property did not belong to the plaintiff Math?

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(iii) Whether the property of the Math ceased to belong to the Math, as

idols were installed therein are worshipped by the members of

Viswakarma community, thereby converting it to a temple.




7. As all these questions are interconnected, we will consider them


together. We may at first refer to the definitions of the words `Math' and


`Temple' in the Act. Section 6(13) of the Act defines `Math' thus :




"Math means a Hindu religious institution with properties attached thereto

and presided over by a person, the succession to whose office devolves in

accordance with the direction of the founder of the institution or is

regulated by usage and (i) whose duty it is to engage himself in imparting

religious instruction or rendering spiritual service; or (ii) who exercises or

claims to exercise spiritual headship over a body of disciples; and includes

places of religious worship or instruction which are appurtenant to the

institution. xxx xxx"




Section 6(20) of the said Act defines the term "temple" as


"Temple means a place by whatever designation known used as a place of

public religious worship, and dedicated to, or for the benefit of, or used as

of right by, the Hindu community or of any section thereof, as a place of

public religious worship. xxx xxx"





8. The distinction between maths and temples, stated in several judicial


pronouncement has found statutory recognition in the aforesaid definitions.


There are two necessary ingredients for a structure or place to be described


as a temple under the Act. First is its use as a place of public religious


worship. Second is dedication of the structure or place to, or for the benefit


of, or use as of right by, the Hindu community or a section thereof, as a

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place of public religious worship. The mere fact that members of the public


are allowed to worship at a place, will not make it a public temple. The


Hindu sentiments and the tenets of Hinduism do not normally exclude


worshippers from a place of worship, even when it is private or part of a


Math. Therefore, the crucial test is not whether the members of the public


are permitted to worship, but whether the worship by the members of the


public is as of right by the Hindu community or any section thereof, or


whether a place has been dedicated a place of public religious worship. [See


: the decision of the Privy Council in Mundacheri Koman vs. Atchuthan -


ILR 58 Mad. 91, the decisions of the Madras High Court in Madras Hindu


Religious Endowments Board vs. Deivanai Ammal - 1953 (2) MLJ 688;


Bodendraswami Mutt vs. The President of the Board of Commissioners for


Hindu Religious Endowments - 1955 (1) MLJ 60, and The Commissioner,


Hindu Religious & Charitable Endowment (Admn.) Department vs. T.A.T.


Srimath Gnaniar Madalayam - 2003 (1) MLJ 726].





9. In Goswami Shri Mahalaxmi Vahuji vs. Shah Ranchhoddas Kalidas


(Dead) & Ors. - AIR 1970 SC 2025 and T.D. Gopalan vs. The


Commissioner of Hindu Religions and Charitable Endowments, Madras -


AIR 1972 SC 1716, this Court held that the origin of the temple, the manner

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in which the affairs are managed, the gifts received by it, the rights exercised


by devotees in regard to worship therein and the consciousness of the


devotees themselves as to the character of the temple, are the factors which


go to show whether a temple is a public temple or a private temple. It is also


well-settled that mere installation and consecration of idols in a place will


not make it a place of public religious worship. Where the evidence shows


that the disputed property retained the identity as a Math and where


Gurupoojas (functions celebrating/important days associated with the


founder or head of the math) are performed regularly, it will not lose the


characteristic of a Math and become a temple, merely because idols have


been installed and members of a section of Hindu community offer worship.


In fact, this fact is now statutorily recognized in the definition of Math in


section 6(13) of the Act which makes it clear that a Math includes any place


of religious worship which is appurtenant to the institution of a Math.





10. This Court in Radhakanta Deb vs. The Commissioner of Hindu


Religious Endowments, Orissa [AIR 1981 SC 798] on a conspectus of


earlier authorities, laid down the following tests to provide sufficient


guidelines to determine on the facts of each case, whether an endowment is


of a private or a public nature :

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"Thus, on a conspectus of the authorities mentioned above, the following

tests may be laid down as providing sufficient guidelines to determine on

the facts of each case whether an endowment is of a private or of a public

nature :


(1) Where the origin of the endowment cannot be ascertained, the

question whether the user of the temple by member of the public is as

of right;


(2) The fact that the control and management vests either in a large body

of persons or in the members of the public and the founder does not

retain any control over the management. Allied to this may be a

circumstance where the evidence shows that there is provision for a

scheme to be framed by associating the members of the public at

large;


(3) Where, however, a document is available to prove the nature and

origin of the endowment and the recitals of the document show that

the control and management of the temple is retained with the

founder or his descendants, and that extensive properties are

dedicated for the purpose of the maintenance of the temple belonging

to the founder himself, this will be a conclusive proof to show that the

endowment was of a private nature;


(4) Where the evidence shows that the founder of the endowment did not

make any stipulation for offerings or contributions to be made by

members of the public to the temple, this would be an important

intrinsic circumstance to indicate the private nature of the

endowment."


(emphasis supplied)





11. We may also in this context refer to one of the earliest judgments of


the Madras High Court. In Thambu Chetti Subraya Chetti vs. A.T. Arundel -


ILR 6 (1883) Mad. 287. The question considered therein was whether a


building known as the Dharma Sivachari Mattam could be considered to be


a place of public worship, as idols were installed in the said Math premises,

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so that exemption from payment of municipal tax could be availed. A


Division Bench of the Madras High Court held :


"The original signification of the term Math or Matha is a building or set

of buildings in which Hindu religious mendicants reside under a superior,

who is called a Mahant. This spiritual superior is regarded with veneration

by the members of the sect, and is installed with some ceremony, and not

infrequently receives an honorific title. Although a place of worship is not

a necessary part of a Math, such a place is, as may be expected, often

found in such institutions, and, though intended primarily for the use of

the inmates, the public may be admitted to it, and so this part of the

building may become a place of religious worship. A Hindu Math

somewhat resembles a Catholic Monastery. From the circumstance that a

portion of it is not infrequently devoted to worship, and that the public

may be admitted to it, the term Math has acquired a secondary

signification as a small temple.


Taking the whole of the facts mentioned in the judgment, we see reason to

think that the institution was a Math in the original rather than the

secondary sense of that term.............when the Mattam is in part of in

whole used for purposes other than those of public worship, it will be

liable to taxation."

(emphasis supplied)




12. Therefore, the fact that there are some idols installed in a Math and


members of the public offer worship to such idol will not make it a place of


public religious worship, that is, a temple, if the other ingredients of a math


exist or if it is established to be a premises belonging to a math and used by


the math for its purposes. If the property in its origin was a math property, it


cannot be treated as a temple merely because the math had installed idols


and permitted worship by the members of the community and the premises


is used for rendering charitable and religious services. The Division Bench


has proceeded on the erroneous impression that existence of an idol in a

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math property, when worshipped by the members of the community, would


convert the math property into a temple.





13. The plaintiff (Parasamaya Kolerinatha Madam) specifically claims


that the suit property belonged to the plaintiff Mutt and produced several


documents, the genuineness of which was not under question. We may


examine the said evidence. Exhibit-P1 is the certified copy of the


preliminary decree in the scheme suit (Ponnaivasan Achari & Ors. v.


Nelliappa Achari - OS No.58 of 1922, dated 29.3.1924) with reference to


Parasamaya Kolerinatha Madam situated at Tirunelveli and its properties.


The said preliminary decree declares that Parasamaya Kolerinatha Madam


situated at Tirunelveli is a public religious and charitable foundation for the


benefit of five sections of Vishwakarma community of the Tamil districts of


Southern India as also Travancore, Cochin and Malabar, holding the


properties mentioned in the plaint schedule; that the office of Mathadhipathi


of the said Mutt was vacant; that it was necessary to frame the scheme for


the appointment of a Mathadhipathi and regulate succession to the office of


the Mathadhipathi and vest the Mutt and such property in such


Mathadhipathi. The suit property was one of the properties shown as


belonging to the math. After such preliminary decree, a draft scheme was

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filed and a scheme was framed on 2.5.1925. Ex. P2 is the final decree dated


10.9.1927 in the said suit (OS No.58/1922) which confirms that a scheme


has been framed for the said Parasamaya Kolerinatha Madam, Tirunelveli on


2.5.1925; that the said scheme provided for appointment of Mathadhipathi


and regulating the succession to the office of Mathadhipathi; that as per the


directions of the court, the disciples of the plaintiff Mutt was convened on


5.9.1927 and Srimath Rajaratna Swami was unanimously elected as the


Mathadhipathi. The final decree declared that the said Rajaratna Swamigal


was the Mathadhipathi of the institution in whom, according to the scheme


settled in the preliminary decree, the properties described in the said final


decree vested. The first schedule thereto enumerates the properties owned by


the Math situated at Tirunelveli and third schedule describes the agricultural


lands owned by the Math. The fourth schedule describes the movables. The


fifth schedule to the said decree describes the two properties situated outside


Tirunelveli district - one property in Travancore area and the property


situated at Komaleeswararpet, Chennai described as "Srimath Parasamaya


Kolerinatha Swami Madam - Sri Meenakshiamman temple and its assets".


This document establishes beyond doubt that at a undisputed point of time,


the said suit property was the property belonging to the plaintiff Math,


vested in its Madhathipathi.

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14. As against the said documents (Ex P1 and P2) which trace the title to


more than 55 years before filing of the suit, the defendants have not


produced any title deeds. The contention of the defendants that as neither


they nor the trustees preceding them, were parties to the scheme suit of


1922, the decree in the said scheme suit was not binding on them, is not


tenable. The defendants have produced documents to show that the suit


property and the temple therein are being managed by the members of the


community at Komaleeswararpet from around 1938 onwards. Obviously


therefore the question of impleading either defendants 1 and 2 or their


predecessors in 1924 or 1925 did not arise. In fact plaintiff Math does not


deny the fact that idol of Meenakshiamman is installed in the suit property


and that the day to day management of the suit property was entrusted to the


Viswakarma community members in Komaleeswararpet Chennai, as the


head quarters of the Math was situated at Tirunelveli. The entrustment of


management by the Math to the elders/members of the Viswakarma


Community under the guidance and supervision of the Math, would not


divest the title of the Math to the property.





15. We may next refer to the undisputed documents which establish that


the suit property where the idol of Meenakshiamman is installed is the

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property of the plaintiff Math. The most important of the documents, which


would clinch the case in support of the plaintiff Math is Ex. P16 which is a


certified copy of the petition dated 7.10.1978 under section 64(1) of the Act


(OA No.102/1978) filed by defendants 1 and 2 and other managing


committee members of Meenakshiamman Temple before the Deputy


Commissioner for Hindu Religious and Charitable Endowments


(Administration), Madras, for framing a scheme for appointment of Trustees


and management of the temple. The subject-matter of the petition is


described as "In the matter of Sri Meenakshiamman temple situated in


Srimad Parasamaya Kolarinatha Swamigal Mutt in 16, Chandra Banu


Street, Komaleeswaranpettai, Madras". In para 2 of the said petition,


defendants 1 and 2 and other petitioners therein averred: "There is a temple


dedicated to Sri Meenakshiamman in Chandrabanu Street,


Komaleeswaranpet, Madras-2. The institution in question is located in a


Mutt belonging to Srimath Parasamaya Kolarinathaswami. The said Swami


was the head of the members of the Viswakarma Community residing in


Komaleeswaranpet, from time immemorial." Having made such admission,


they however claimed that "though the temple has been located in the Mutt,


the Mutt is no longer in existence and that the institution in question has


been considered as the property of the members of the Viswakarma

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Community.......... the institution in question has always been under the


management of the members of the said community ever since its


inception." The said petition was dismissed.





16. Several other documents produced by plaintiff Math issued by the


defendants and their predecessors also establish that the suit property was


always considered to be the property of the Math. They are :



(i) Ex.P2 dated 16.10.1963 is a pamphlet issued by R.Kanakasabhapathy


Achari on behalf of Srimath Parasamaya Kolerinatha Swami Madam,


Komaleeswararpet Chennai, inviting devotees to participate in the worship


of Meenakshiammam during Navarathri celebrations.



(ii) Ex. P6 is the Navrathri Mahotsava invitation/pamphlet issued by R.


Kanagasabapathy Achari and others on 16.10.1963 describing the temple as


"Srimath Parasamaya Kolerinatha Swamigal Madam - Vishwa Karma


Samooha Aadheenam - Sri Meenakshi temple".



(iii) Ex. P7 is an invitation pamphlet dated 2.5.1970 in connection with


Guru pooja offered to Nellai Parasamaya Kolerinatha Guru Swami and in


that connection aradhana to Meenakshiammam and poor feeding at the suit


property.



(iv) Ex.P8 is a receipt dated 10.5.1972 issued by first defendant for a sum


of Rs.3 towards Gurupooja and the receipt is issued in the name of "Sri


Parasamaya Kolerinatha Math -- Sri Meenakshiamman Temple".

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(v) Ex. P9 is a programme schedule dated 21.9.1981 issued by the first


defendant in regard to the celebration of Navarathri festival at "Srimath


Parasamaya Kolerinatha Swami Madam - Sri Meenakshiamman Navarathri


celebrations."




(vi) Ex. P13 is a pamphlet relating to a musical festival to be held between


1.6.1960 to 5.6.1960 in connection with the Kumbabhishekham at "Chennai


Komaleeswararpet, Chandrabanu Street, Nellai Srimath Parasamaya


Kolerinatha Math -- Sri Meenakshi Sannidhi", issued by the Math Temple


Festival Committee on the directions of Nellai Jagatguru Shrimath


Parasamaya Kolerinathar Adeenam, 37th Jagatguru Swami Sivananda


Muneeswara.



(vii) Ex. P14 is an invitation pamphlet dated 25.5.1960 issued by the


Managing Committee of "Nellai Jagatguru Srimath Parasamaya Kolerinathar


Adeenam" regarding Sri Meenakshiamman Idol Procession in


Komaleeswararpet in the presence of Nellai Jagatguru Parasamaya


Kolerinathar 37th Jagatguru Swami Sivananda Muneeswarar.



(viii) Ex. P15 is a pamphlet dated 6.7.1960 issued by the person-in-charge


Parasamaya Kolerinatha Madam, No.11, Chandrabanu Street,


Komaleeswaranpet, Chennai, in connection with the celebration of the


coronation of the 37th Peetadhipathi Jagatguru Parasamaya Kolerinathar.



(ix) Ex.P17 is the pamphlet dated 21.3.1960 issued by the management of


Parasamaya Kolerinatha Madam mutt, Kamaleeswaranpettai in connection

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with a festival in regard to Godess Meenakshiamman installed two centuries


earlier by 32nd Jagatguru Srinath Swami Anavaradacharya.



(x) Ex. P18 dated 18.7.1960 is the invitation to the disciples and followers


of Shrimath Parasamaya Kolerinatha Swami to have darshan of the Swami at


Parasamaya Kelarinatha Swami Math, No.11, Chandrabanu Street,


Komaleeswararpet, Chennai.





It is not necessary to refer to other documents exhibited by plaintiff math,


most of which relate to a period subsequent to the filing of the suit.




17. The defendants marked Ex D1 to D 42. Most of the documents related


to the festivals conducted in connection with the Meenakshiamman temple


or regarding the handing over of management of the temple from one


managing committee to another managing committee. Many relate to the


period subsequent to the suit and not relevant. But several of them relate to


the undisputed period before the suit and clearly prove the case of the


plaintiff Math. We may refer to some of defendants' exhibits:





(i) Ex. D1 dated 7.4.1938 is the pamphlet issued by the person-in-charge


of the suit property - Adhimoola Achari in regard to appointment of


Committee for managing "Sri Meenakshi Temple situated in Chennai


Komaleeswaranpettai Srimath Parasamaya Kolerinatha Swami Math".

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(ii) Ex. D8 is a pamphlet dated 16.10.1941 by Adhimoola Achari,


`Dharmakartha' of the temple in regard to a festival at Sri Meenakshi


Temple at Sri Parasamaya Kolerinatha Madam, Kamaleeswaranpet,


Chennai.



(iii) Ex. D16 is a pamphlet about the appointment of Managing Committee


of Sri Meenakshiamman temple at Srimath Parasamaya Kolerinatha Swami


Madam for the term 17.6.1945 to 5.3.1950.




(iv) Ex. D24 is the Invitation Pamphlet dated 10.5.1972 in connection with


Guru Pooja of the founder of the plaintiff Math at the suit property.



(v) Ex. D32 is a pamphlet dated 5.10.1966 issued by Kanagasabapathy


Achari in regard to Navrathri festival in Meenakshi Temple at Srimath


Parasamaya Kolerinatha Madam.




18. These documents irrefutably establish that the temple was a part of the


Math; that the Math appointed a local elder of Viswakarma Community at


Komaleeswaranpet to manage the suit property and the place of worship


therein, that the local elder handed over management to successive elected


managing committees (from the Viswakarma community at


Komaleeswaranpet, Chennai) to be in day to day management; that the


defendants and their predecessors who were the members of the Managing


Committee of the temple, had always accepted and described the place of


worship as being a part of Parasamaya Kolerinatha Guruswamigal Madam,

21



that is plaintiff-Mutt. When some of the pamphlets exhibited by defendants


describe the place of worship in the Math property as Meenakshiamman


`koil', the word was not used as referring to a `temple' as defined in the Act,


but as a place of worship always as part of and belonging to the plaintiff


math.





19. The oral evidence the second defendant - T.R.Nataraj Achary (DW1)


also establishes that Meenakshiamman Koil was part of plaintiff Math. In


the examination-in-chief, he states that the suit property is Meenakshiamman


temple which has been administered by a group of trustees elected/appointed


by the Viswakarma community in Komaleeswararpet and the temple belongs


to the Viswakarma community of Komaleeswararpet. However he also


stated that Srimat Parasamaya Kolerinatha Swamigul, who lived several


centuries ago in Tirunelveli, was the Guru of Viswakarma community and


there is a statue of the said Swami in the temple; that a sect of Viswakarma


community regularly conducts Guru Pooja in honour of the founder of the


Math in the premises. He extract below some of his answers which establish


the case of the plaintiff Math:




"Q. Did the present Head of Mutt or the previous Head of Mutt stay in the

Meenakshi temple ?

22



A. The present Head of the Mutt stayed only for one and a half hour and

the previous Head of the Mutt might have come and stayed."


"Q: This notice (Ex.D.24 and Ex.P.7) was issued by 64 Thalaikettu

Viswakarma Community people, is it so?


A: Yes. This pooja is being conducted by them.


Q: See Ex. D.24 and Ex.P.7, there is a song in the beginning of the matter.


A: Yes.


Q: The Guru referred to in both the notification in the song is Nellai

Parasamaya Kolarinatha Swamigal, is it not?


A: Yes.


Q: 64 Thalaikattu Viswakarma Community are residing in Madras, is it

so?


A: Yes. They are living in Madras.


Q: 64 Thalaikattu Viswakarma Community are celebrating (Guru) poojas

in the suit property, is it not?


A: Yes.


Q: That Guru Pooja is in respect of Nellai Parasamaya Kolarinatha

Swamigal?

A: Yes.


Q: Ex.P.7 was issued after you claimed to have been a trustee of the suit

property?


A: Yes.


Q: Do you know that the present suit has been filed by Nellai Parasamaya

Kolarinatha Swamigal?


A: Yes. I am aware.


Q: There is a stone image of Nellai Parasamaya Kolarinatha in the suit

property?


A: Yes.

23



Q: This image in the suit property is that of the man you are referring to?


A: Yes.


Q: The chappals (`Padukas') owned by him are in the suit property?

A: Yes.




Q: Ex.P.9 was a notice issued by you for Navarathiri Festival in the suit

property in 1981. Your name is also there?


A: Yes. My name is also there.


Q: In this document the suit property is described as Parasamaya

Kolarinatha Swamigal Madam?


A: Yes.


Q: So from 1938 to 1981 suit property is described as Parasamaya

Kolarinatha Madam?


A: Yes. It is from the beginning known as Parasamaya Kolarinatha

Swamigal Madam.


Q: This document Ex.D.30 (Page No.9) is also filed by you?


A: Yes.


Q: There also (Page 8 of Ex.D.30) it is referred that Kolarinatha Swamigal

installed the Meenakshi Amman Idol.


A: Yes."





20. The learned Single Judge has referred to oral and documentary


evidence in detail and recorded a categorical finding that the property


belonged to the plaintiff Mutt and that the claim of the defendants that the


plaintiff Math had nothing to do with the suit property was false and


untenable. On the other hand, the Division Bench failed to consider the

24



significance of these relevant documents. It inferred that the suit property


ceased to be a Math property and became a `temple' as defined in section


6(20) of the Act, because the Meenakshiamman idol was installed in the


Math property and the members of the community were offering worship


and festivals were conducted and celebrated by the Managing Committee


and Municipal taxes were being paid by the Managing Committee. But it


failed to notice that mere existence of idols in Math premises or worship


thereof by the public would not convert a property belonging to the Math


into a temple. It failed to notice that installation of the idol


Meenakshiamman and installation of the statue of Sri Swami Parasamaya


Kolerinatha Guru and conducting the festivals and Gurupoojas were part of


Math's activities being held and conducted in the name of the plaintiff Mutt


or its Mathadhipathi.





21. The oral and documentary evidence produced by the plaintiff and


defendants clearly and categorically establish the following factual positions


factual positions :


(i) The suit property belonged to the plaintiff Math;



(ii) The Meenakshiamman idol was installed by the 32nd


Mathadhipathi of the Math in suit property, in the eighteenth

25



century. There is nothing to show that installation was with the


object of dedicating the premises as a place of public religious


worship. On the other hand the suit property was and always been


a property belonging to the plaintiff Math, where the members of


Vishwakarma community were permitted to offer worship to the


idol of Meenakshiamman.



(iii) The suit property is used regularly to celebrate Guru pooja in


honour of the founder of the Math and the Mathadhipathis. The


premises was used by the Mathadhipathi of the plaintiff Math and


his disciples and followers for their stay at Chennai.



(iv) The head of plaintiff Math had directed the Viswakarma


community in Komaleeswararpettai, Chennai to manage the day to


day affairs of the suit property including provision for worship of


idols in the property by constituting a Managing Committee. The


Managing Committee was managing the Math property and the


temple therein, recognizing and accepting that they were part of


plaintiff Math.




(v) In the year 1978, the defendants and others in management


attempted unsuccessfully to assert that the premises is exclusively


a temple belonging to the Viswakarma community members at


Komaleeswararpet and not the plaintiff Math.



In view of the above findings, all the three questions raised are answered in


favour of the appellant Math.

26





22. As the management through a local committee has been in vogue for


several decades, it would be appropriate if the same system is continued for


the efficient management of the suit property and the place of worship. The


Managing Committee should consist of a Chairman nominated by the


Mathadhipathi of plaintiff Math and six members (of whom three shall be


nominated by plaintiff Math and the remaining three shall be elected by the


Viswakarma community at Komaleeswararpet, Chennai). The said


Managing Committee will be accountable to the plaintiff Math and act under


its directions.





23. In view of the above, the appeal is allowed, the judgment and decree


of the division bench of the High Court is set aside and the judgment and


decree of the learned Single Judge decreeing the suit is restored as under:




(i) The suit property with the installed idols and other assets is


declared to be the property of the plaintiff Math. The possession


and control of the suit property with the place of worship


(Meenakshiamman temple) vests with the plaintiff Math.




(ii) Neither the Viswakarma community of Komaleeswararpet or the


Committees of Management of the `Meenakshiamman Temple'

27



own the suit property or the place of worship therein. They were


merely acting as the representatives of the plaintiff Math.




(iii) The defendants and their agents and representatives shall deliver


the entire suit property with the place of worship with the installed


idols and all movables, to the plaintiff Math forthwith.





(iv) Parties to bear their respective costs.





..............................J.

(R V Raveendran)





New Delhi; ...............................J.

September 22, 2011. (H L Gokhale)


how to determine whether the property is a public temple or belongs to private math?- golden principles-whether an endowment is of a private or of a public nature : (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by member of the public is as of right; (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature; (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.” « advocatemmmohan