Samadhi being called Matam, held will not make it mutt under the Act.

AR. LAKSHMANAN, J.

The plaintiff who succeeded before the Sub-Court, Tirunelveli and unsuccessful before the learned single Judge of this Court, is the appellant in this Letters Patent Appeal.

2. The short facts of the case are as follows: The appellant filed O.S. 130/80 on the file of the Sub-Court, Tirunelveli under Section 70 of the Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as the Act) for setting aside the order passed by the Commissioner, H.R. and C.E. in A.P. No. 191 of 1976 which arose out of a petition filed by him before the Deputy Commissioner in O.A. No. 21/1976 for declaration that the Dakshinamoorthy Madam is not a math within the meaning of the Act. The Deputy Commissioner dismissed the said O.A. No. 21/76 and on appeal, the Commissioner confirmed the same. Therefore, to set aside the order of the commissioner and to declare that the said Dakshinamoorthy Madam is not a Math, the suit has been filed.

3. According to the appellant, the suit property is described as Dakshinamoorthy Madam and in the suit property, there is a samathi of Michael Siddar who is admittedly a christian whom Vedanayagam Sami, the testator of the will Ex. A1 dated 19-2-1957 considered as his Guru. Ex. A1 will directs performance of Abishegam, Alankaram, Maha Neivedyam and Guru Pooja at the tomb of K.R. Michael Siddhar in the month of Marghazhi every year and on the month of his Nakshtram. Vedanayagasami Samadhi is also in the Mutt. There is also a Samadhi for Kamal Sami a Christian for which also some poojas were directed to be done. Therefore, the appellant contends that it is not a Mutt, but only a Samadhi and hence, it does not come within the purview of the Act. The further case of the appellant is that in A.S. No. 2/63 (Ex. A6) before a Division Bench of this Court which arose out of O.S. 61/61 on the file of the Sub-Court, Tirunelveli, in which the present defendant/commissioner was the 7th defendant, in its judgment dated 20-2-1969 : (reported in 1970 AIR(Mad) 402) this Court has held that the said Dakshinamoorthy Madam is only a Samadhi where some charities mentioned in schedule II to Ex. A1 are performed. Therefore, the appellant contends that the order of the Commissioner in A.P. No. 191 / 76 declaring that Dakshinamoorthy Madam as a Madam, has to be set aside.

4. As against this, the respondent/commissioner contends that the subject-matter of the suit has been rightly held as a Mutt and not a Samadhi as pleaded and that a reading of the will under Ex. A1 executed by Vedanayagasami would only show that the subject matter of the suit is only a Mutt. It is also contended that the decision of this Court in A.S. No. 2/63 will not bind the respondent. The High Court in its earlier judgment in AAO No. 472/51 (Ex. A10) dated 5-7-54 has declared the subject-matter of the as only a Madam, which decision was not brought to the notice of the Judges who decided A.S. 2 of 1963 under Ex. A6. Therefore, Dakshinamoorthy Madam Comes within the purview of the Act, 22/59.

5. Before the Sub-Court, Exs. A1 to A13 were marked on the side of the appellant and Exs. B1 and B2 were marked on the side of the respondent. The appellant/plaintiff was examined as P.W. 1 and none was examined on the side of the respondent/defendant. On the above pleadings, the Sub-Court framed 7 issues and on a consideration of the evidence placed on record, took the view that the judgment in A.S. No. 2/63 (Ex. A6) which has held that the subject-matter of the suit is a Samadhi, has to be followed. Therefore, the trial Court held that the subject-matter of the is a Samadhi and decreed the suit of the appellant as prayed for. The Sub-Court also held that the order passed by the Commissioner in appeal No. 191/76 dated 28-1-1980 is liable to be set aside.

6. Aggrieved by the judgment and decree of the trial Court made on 22-2-1982, the Commissioner preferred A.S. 749/82 on the file of this Court and in this Court, the Commissioner contended b