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2009 Supreme(Mad) 1674
Madras High Court
M.M. SUNDRESH, J.
M. Sankarasubramania Pillai & Another
Versus
The Commissioner, HR & CE(Admn)
A.S.NO.400 of 1998
Decided on : 11-06-2009
For the Appellants:T.R. Rajaraman, Advocate.
For the Respondent: K.M. Vijayakumar, Addl. Govt. Pleader (HR&CE).
Ratios:
a. Temples are presumed as public temples unless proved otherwise.
b. Presumption regarding temples as public temples is a rebuttable presumption.
c. A person who got an order by taking one stand and enjoyed its benefit cannot be permitted to take a different stand later.
Headnote:(A)Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, (T.N. Act 22 of 1959)Sec.63, 69, 70-Indian Evidence Act, 1872(1 of 1872)-Sec.114, 115-Temple-Public temple-Presumption-Burden of proof-Estoppel-Appellant filed suit to declare suit temple as private temple-Earlier he had filed petition to declare himself as hereditary trustee which was ordered-Respondent contended that it was a public temple-Trial Court dismissed the suit-Appeal by appellant.-Parties stood in their stand-Held, appellant, once prayed for his appointment as hereditary trustee and enjoyed benefit of the order-Later, he cannot reverse his stand and plead otherwise-There is a presumption in Tamil Nadu that temples are public temples-Burden is heavy on the person pleading otherwise-Plaintiff failed to prove otherwise-Appeal dismissed.
(B) Indian Evidence Act, 1872(1 of 1872)-Sec.115-Estoppel-Appellant, once prayed for his appointment as hereditary trustee and enjoyed benefit of the order-Later, he cannot reverse his stand and plead otherwise.
The appellant himself has filed an application under Section 63(b) of the "Act", seeking to declare himself as the hereditary trustee. In other words, the said application has been filed and the order has been passed on the premise that the temple in question is a public temple. Thereafter, the appellant cannot turn round and contend to the contrary that the temple in question is a private temple. Para 10
(C)Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, (T.N. Act 22 of 1959)Sec.63, 69, 70- Indian Evidence Act, 1872(1 of 1872)-Sec.114-Temple-Public temple-Presumption-There is a presumption in Tamil Nadu that temples are public temples-Burden is heavy on the person pleading otherwise.
In the State of Tamil Nadu, there is a presumption that all the temples are public temples. This presumption is of a rebuttable presumption. The onus is on the appellant to prove that the temple in question is a private temple. Para 11
The plaintiff herein is the appellant. The suit has been filed under section 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, seeking to set aside the order passed by the respondent in Appeal No.7/1986, dated 14.02.1989.
2. The case of the appellant is as follows:
The Chiriya Arachalai Vinayagar Temple is situated in Neeragara Ambalathaduvar Mutt, Theroor Village, Agasteeswaram Taluk, Kanyakumari District. The said Mutt has been established by Neeragara Ambalathaduvar. The said Ambalathaduvar is the ancestor of the plaintiff. The temple has been built in the patta land. After passing several hands, the administration of the temple has come in the hands of the appellant. According to the appellant, in view of the interference made by the departmental authorities, he was constrained to file an application under Section 63(b) of the Tamil Nadu Hindu Religious Charitable and Endowments Act, 1959(hereinafter called as the "Act"), seeking to declare himself as a hereditary trustee of the temple. It is his further case that while making an application he reserved his right to file appropriate application under Section 63(a) of the "Act" to declare the temple as a private temple. Hence, thereafter, he has filed this application. The authorities concerned have rejected the application under Section 63(a) and 69(1) of the "Act" and therefore, being aggrieved against the same, the suit has been filed under Section 70 of the "Act".
3. Pending the appeal, the plaintiff/appellant died and his son has been brought on record.
4. The case of the respondent/defendant is that it is not true that the appellant is the decendent of Neeragara Ambalathaduvar and there is no evidence to prove the same. Similarly, it is not factually correct that the temple has been constructed by the above said person. According to the defendant, patta for the land stands in the name of the deity and in view of the proceedings of the Assessment Settlement Officer, by which grant has been given to the plaintiff and other persons attached to him to feed 200 persons, the temple in question is nothing but a public temple. It is further contended that the general public has been using the temple and offering prayers without any hindrance and in any case, the appellant is estopped from pleading and contending otherwise, after getting an order under Section 63(b) of the "Act" thereby declaring him as a hereditary trustee. Therefore, it is contended that once the appellant himself got an order of hereditary trustee treating the temple in question as a public temple, he was estopped from pleading otherwise. The trial court framed the following issues:
1. Whether the temple is a private temple or not?
2. Whether the temple has been constructed in a patta land?
3. Whether the lands belonging to the temple belongs to Neeragara Ambalathaduvar Mutt?
4. Whether the order passed by the respondent dated 14.02.1989 is liable to be set aside?
5. If not, what other relief the plaintiff is entitled to?
5. The trial court after taking into consideration of Ex.A1 to A8 relied upon by the plaintiff and Ex.B1 to Ex.B5 relied upon by the defendant as well as the Commissioner's Report, has dismissed the suit. Being aggrieved against the same, the plaintiff has preferred the present appeal.
6. It has been contended by the learned counsel for the appellant that the trial court has failed to give a finding that the factors required to be fulfilled for a public temple has not been established. He further contended that inasmuch as the rights of the plaintiff was reserved while making an application under Section 63(b) of the "Act", the mere fact that he has been declared as a hereditary trustee would not prevent him from seeking the relief under Section 63(a) of the "Act". It is further contended that in view of the evidence produced by the plaintiff to show that he is in possession and managing the temple, the suit ought to have been decreed.
7. Per contra, the
