This appeal is directed against the Judgment and Decree, dated 30.06.1994 made in O.S.No.101 of 1987 on the file of the Subordinate Judge, Nagapattinam.

2. The appellant herein was the defendant in the suit before the trial court. The respondent filed the suit stating that his grand father one Thiyagarajan @ Narayanan had two sons, namely, T.Nagarajan, father of the plaintiff and one late Dakshinamoorthy, who had premature death, due to small pox. According to the respondent / plaintiff, the dead body of late Dakshinamoorthy was buried under a Samadhi erected in R.S.No.118/8 in Koravapulam village, Tiruturaipundy Taluk,where he was entombed.

3. According to the respondent / plaintiff, originally the Samadhi was housed in a thatched shed and later pucca masonry structures were built up, neither the public in general nor the villagers in particular are being allowed to worship the Samadhi and as such, the same had never been thrown open to the public. There was no Pragaaram, Dwajasthambam, Kodi-maram, hundial or even any Vigraham (idol) embedded or otherwise capable of being taken in possession and there is no contribution or collection of funds of any kind for sustenance and maintenance of the Institution. According to him, his grand father late Thiyagarajan had set apart 6 acres 38 cents of land in the village of Koruvapulam by a settlement deed, dated 30.11.1960 for the maintenance of the Samadhi.

4. It is not in dispute that as per the settlement deed, the testator had made restrictions on his son Nagarajan and others claiming right only to perform the service of feeding the poor during the month of karthigai and to do other charities from and out of the income of the property. In fact, they can perform the charity, without any power of alienation or creating charges over the property dedicated for the aforesaid object.

5. According to the respondent herein, the endowment was created only to perform poojas in the Samadhi of Dakshinamoorthy, the younger son of the testator and accordingly the institution is neither a Madam, nor a Temple as defined in the Tamil Nadu H.R & C.E., Act 22 of 1959. According to the plaintiff, the buildings for the institution were constructed in the patta land in S.No.118/8 and the lands stand registered in the name of "Dakshinamoorthy Madam".

6. According to the respondent / plaintiff, though a petition under Section 63(a) of the H.R. & C.E. Act (herein after referred to as the Act) before the Deputy Commissioner, H.R. & C.E. Department, Thanjavur in O.A.No.5/82 was filed by the respondent, seeking to declare that the institution is not a religious institution, as defined under Section 6 (18) of the Act, the same was dismissed, declaring that the institution is a temple of Lord Sri Dakshinamoorthy, as per Section 6(2) of the Act. According to the respondent, there is no predhishtai (installation) of any Vigraham (Idol) of Lord Dakshinamoorthy in the institution. Subsequent to the aforesaid order, appeal was preferred under Section 69(2) of the Act in C.No.119362/86 to set aside the order of the Deputy Commissioner, H.R. & C.E., Department, Thanjavur, dated 19.03.1983 in O.S.No.5/82. The appeal was also dismissed by the Commissioner, H.R. & C.E., Department, Chennai, the respondent herein. Aggrieved by which, the respondent / plaintiff filed a statutory suit under Section 70 of the H.R. & C.E., Act (22 of 1959).

7. Per contra, the appellant, as defendant has stated that the institution is known as Dakshinamoorthy Madam (Math), Kuruvapulam in R.S.No.111/8 in an extent of 0.07 cents, which belongs to the math and the father of the plaintiff Nagarajan was in management of the institution. According to the appellant, it is a math as defined under Section 6 (13) of the Act and Dakshinamoorthy Madam, Kuruvapulam village is a religious institution, as defined under Section 6 (18) of the Act and that the application made by the father of the plaintiff under Section 63(a) of the Act before t