The main legal point established in the judgment is the requirement to approach the authorities first for adjudication of disputes related to religious institutions under the H.R. & C.E. Act.

PRABHA SRIDEVAN, J.

The appellant was appointed as a fit person of the suit property by the authorities under the Hindu Religious and Endowments Act (H.R. & C.E. Act)-respondents 2 and 3, according to whom, it was a public temple. Thereupon the first respondent filed the suit against the respondents 2 and 3 and the appellant for a declaration that the suit properties are private and family properties and not a public temple and for permanent injunction restraining the defendants from interference. . In the plaint the suit property was referred to as 'Sundareswarar Swami Samadhi'. The question of maintainability of the suit was raised by the defendant in view of Section 108 of the H.R. & C.E. Act. The Trial Court decided this issue in favour of the first respondent. The learned Single Judge also held that since the suit property is a 'samadhi' ,the suit was maintainable.

2.The learned Senior Counsel appearing for the appellant made his submissions with regard to the maintainability of the suit as well as on merits and referred to,

(a) The Mahalakshmi Temple V. The Commissioner, H.R. & C.E. (1993 I MLJ 266)

(b) Sri Venkataramanaswamy Deity V. Vadugammal (1974 I MLJ 431)

He also relied on State of Madras Vs. Kunnakudi Melamatam alias Annathana Matam (1966 II MLJ 13 (SC)) and Sri vedagiri Lakshmi Narasimha Swami Vs. Induru Pattabhirami Reddi (AIR 1967 SC 781).

3.It was submitted that since the main relief sought for would depend upon whether the suit property is a public temple or not this would be a dispute to be decided by the Deputy Commissioner or the Joint Commissioner under Section 63 of the Act. It was submitted that clever wording of the prayer would not improve the position and that while it is true that the Civil Court does not lose its jurisdiction with regard to reliefs that cannot be granted by the Deputy Commissioner and for which no provision is made under the Act, where there is a specific provision for deciding this dispute the respondent ought to have availed of the statutory remedy.

4.The learned counsel for the respondent submitted that it has been held in various decisions that a 'samadhi' is not a religious institution. The learned counsel brought to our notice the Andhra Pradesh H.R. & C.E. Act, which included in its fold a 'samadhi' and a 'brindavan'. He would therefore submit that since the Tamil Nadu Act has specifically chosen not to include 'samadhis' this question could only be decided by the Civil Court.

5.On merits, it was submitted on behalf of the appellants that the documentary evidence would clearly show that the earliest documents have referred to the suit property only as 'Sundareswarar Swami Koil' and only in the plaint for the first time there is reference to a 'samadhi' and therefore, the oral and documentary evidence do not establish that the suit property is a `samadhi'. On the contrary, the learned counsel for the respondent would submit that merely because some idols have been installed in and around the 'samadhi' will not take away from the property the essential characteristics of a 'samadhi'.

6.A temple is defined in the H.R. & C.E. Act thus:

""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 religious worship."

and a "religious institution" is defined as a math, temple or specific endowment.

Section 63(a) reads this:

"Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have the power to inquire into and decide the following disputes and matters:

(a) whether an institution is a religious institution;

(b) whether a trustee holds or held office as a hereditary trustee."

7.In Nagammal V. Ayyavu Thevar (1973 I MLJ 266), it was held :

"The form of relief is not the sole criterion to decide the question of maintainability of the suit. One of the main issues that arises for consid