Nature of temple must be proved by evidence.

The appeal is directed against the judgment and decree dated 3.4.1990 made in O.S.No.351 of 1987. The suit is one filed under Sec.70(1) of he H.R. & C.E. Act, 1959 by the appellant herein seeking for the relief of setting aside the order passed by the defendant–the Commissioner of H.R. & C.E. (Administration), Madras-34 A.P.No.36 of 1979, dated 6.1.1987 and for permanent injunction restraining the defendant from giving effect to the notification issued by the Assistant Commissioner. H.R. & C.E., Madras calling for appointment of non-hereditary trustees.

2. The case of the appellant/plaintiff is that the plaintiff is a Society registered under the provisions of the Societies Registration Act having the aims and objects to disseminate knowledge of Hindu Religion and Philosophy as derived from the Vedas. In general the objects of the plaintiff are to promote culture, religion and other social activities. The plaintiff had members numbering more than 7000 and subsequently it was reduced to 1024 members as others have ceased to be members as they had committed default in payment of the subscription fees and there are different kinds of members.

One P.V. Subramanyan, who is one of the founder members of the samajam had settled 17,606 sq.ft of land in favour of the plaintiff, having regard to the eager of the plaintiff to have a temple of Sri Guruvayoorappan (Sri Krishna) erected in the Ram Nagar Colony and for conducting the other religious activities connected with the said samajam as described in the Memorandum of the samajam, The settlement was of the year 1973. Thereafter the samajam put up a temple out of the funds contributed by the members and raised by them And the Kumbabishekam of the temple was performed in the year 1975. Thus the temple is not a public religious institution coming within the purview of the H.R. & C.E. Act. The plaintiff immediately after the performance of the Kumbabishekam filed an application in O,A.No.82 of 1976 under Sec.63-A of the Tamil Nadu Hindu Religious and Charitable Endowments Act, praying for declaration that the said temple is not a religious institution. The Deputy Commissioner by his order dated 21.9.1978 dismissed the application. Aggrieved by the said order, the plaintiff filed an appeal in A.P.No.36 of 1979 before the Commissioner, who is the defendant in the suit and alternatively sought for declaration declaring the plaintiff as hereditary trustee. The Commissioner has confirmed the order of the Deputy Commissioner. Hence the statutory suit was filed.

3. The trial Court on the pleadings framed the following two issues.

(1) Whether the subject temple is a public temple or a private temple?

(2) Whether the plaintiff is entitled to the reliefs sought for?

Upon considering the document Ex.A-2 the settlement deed, the trial Court has come to the conclusion that the land has been endowed for the purpose of putting up Guruvayoorappan temple only and also drawn adverse inference that the plaintiff did not file the books of accounts for the purpose of finding out as to whether the entire expenses have been borne by the members of the plaintiff Samajam and also taken into consideration the evidence adduced by P.W.1 and non-suited the plaintiff for the relief as prayed for and declared the temple as a public temple.

4. Mr. Venkataraman, learned senior counsel appearing for the appellant submits that the approach of the trial Court in non-suiting the plaintiff for the relief sought for on the ground of adverse inference cannot at all be legally sustainable. The adverse inference can be drawn only when the plaintiff defaulted in producing the documents on demand. No such demand has been made for production of the documents and in the absence of any such demand the adverse inference drawn against the plaintiff is not legally sustainable. For that purpose he placed reliance on the decision of the Supreme Court in Ramrad Kuer v. Dwarika Prasad Singh and others, A.I.R. 1967 S.C.1134: (1967) 2 S.