Sadasivam, J. — Appellants claim to be the owners and hereditary trustees of Sri Kailasanathar Samadhi in Padi village. But their claim was negatived by the Deputy Commissioner, Hindu Religious and Charitable Endowments Board and their appeal was also dismissed by the Commissioner, Hindu Religious and Charitable Endowments. as evidenced by the order Exhibit A-1. They filed O.S. No. 82 of 1961, on the file of the Sub-order ate Judge’s Court, Chingleput, to set aside the order of the Commissioner, but the suit was dismissed with costs and hence they have preferred this appeal.

2. Sri O. V. Baluswamy appearing for the appellants urged that the suit institution is a samadhi and that in the alternative it is a private temple over which the Endowments Board cannot exercise any jurisdiction under the Hindu Religious and Charitable Endowments Act. The learned Subordinate Judge, who tried the suit, has discussed the evidence in paragraphs 7 and 8 of his judgment and found that the suit institution is not a samadhi, but a temple. He has rightly rejected the evidence of the appellants, who examined themselves as P.Ws.1 and 2 in the suit. Exhibit B-6 is a photo of the stone inscription found at 190, Thambu Chetty Street, Madras, in which provision has been made for Nithiya (daily) Kattalai in Padi Sri Kailasanathaswami Temple. It is not disputed that the said temple refers to the suit institution. This grant was made in 1834. P.W.1 Lokambal Ammal is the widow of Nagiah Bathudu and P.W.2 Narayana Pathar is her son. P.W.1 deposed that her husband Nagiah Bathudu died in Coimbatore and was cremated there and that his remains in the shape of bones were brought and buried near Kailasanathaswami samadhi. She deposed that Kailasanathar and his wife Kamatchi were buried in the suit institution and that they were the ancestors of her husband. She was aged 57 at the time of giving evidence and she was married 40 years prior to the suit when she was aged 17 years. She knows the suit institution only from the time of her marriage about forty years prior to her giving evidence. Her son Narayana Pathar (P.W. 2) was aged only 22 years, at the time of his giving evidence and his knowledge of the origin of the suit institution is only based on hearsay, The learned Subordinate Judge rightly rejected the evidence of P.W.3 Govindaswamy Naicker on the ground that he had received Rs. 2 to come and give evidence, apart from receiving moneys for to and fro expenses and food. In fact, his evidence shows that he does not even know whether there are idols in the suit institution and whether poojas are performed there. He deposed that Kailasanatha died, that his ashes were brought and buried and that P.W.2’s father informed him about it. It is not even clear from his evidence as to who that Kailasanatha is. It could not obviously refer to the existence of any Kailasanatha, who according to the appellant, should have lived prior to the commencement of the suit institution in 1854.. The learned Advocate for the appellants commented on the observation of the learned Subordirate Judge that it is highly improbable that the bodies would have been allowed to be cremated inside the village without permission being granted by the health authorities and the panchayat and that there is no document to evidence such permission. If really Kailasanatha and his wife were buried in the suit institution prior to 1834, it is difficult to expect any record or document to prove the permission of the public authorities for such an act of burial. In fact, there would not have been any panchayat or municipality at that distance of time. But, as rightly pointed out by the learned Subordinate Judge, there is absolutely no evidence or record to prove that the remains of Kailasanatha and his alleged wife Kamatchi or their descendants were really buried within the precincts of the suit institution.

3. Sri O. V. Baluswamy referred to the evidence of P.W. 4 Rathnavelu Gramani about the suit institut

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