http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (civil)  175 of 1997

PETITIONER: Nallor Marthandam Vellalar & Ors.                

RESPONDENT: Vs. The Commissioner, Hindu Religions and Charitable Endowments and Ors.

DATE OF JUDGMENT: 30/07/2003

BENCH: SHIVARAJ V. PATIL & D.M.DHARMADHIKARI.

JUDGMENT:

J U D G M E N T

SHIVARAJ V. PATIL J.

       The appellants filed suit for declaration that the  suit temple is a denominational temple and that the  defendants 1 and 2 have no jurisdiction to appoint the  third defendant as fit person.  The trial court decreed  the suit.  The first appellate court reversed the  judgment and decree passed by the trial court and  dismissed the suit.  The High court in second appeal  upheld the judgment and decree passed by the first  appellate court.

       The High Court in the impugned judgment has  narrated the facts in sufficient details based on the  pleadings of the parties and the material that was  placed on record.  It is not necessary to state them  again.  However, to the extent they are relevant and  necessary in the light of the contentions advanced on  behalf of the parties, we notice them hereunder.

       The case of the plaintiff before the trial court  was that the first plaintiff is a denominational temple  entitled to exemption as provided under Article 26 of  the Constitution of India and Section 107 of the Tamil  Nadu Hindu Religious and charitable Endowments Act,  1959 (for short ‘the Act’); the temple is in Nalloor  village and is known as Sree Uchini Makali Amman  Temple, built on an extent of 17 cents in S.No. 1593  and that the entire extent is owned by the Vellala  Community of Marthandam.  The Vellalas residing in  Marthandam are a collection of individuals professing  Hindu faith; the ancestors of the members of the  community constituting corporate body founded the  temple in the land purchased by the members of Vellala  Community.  The plaintiff further claimed that the  members of Vellala Community observed special religious  practices and beliefs which are integral part of their  religion and that the front mandappam of the Sanctorium  is open to access only to members of their community  and none-else. Outsiders can offer worship from the  outer compound.

       The first defendant filed written statement

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

contending that the first plaintiff-temple is a public  religious institution under the control of HR&CE  Department; it was brought under the control of the  Department in the year 1965; the origin of the temple  or the name of its founder is not known; the properties  owned by the temple stand in its name; an extent in  S.No. 1593 has been leased out for a cinema theatre and  the rent due forms the main source of income for the  temple; the public also contribute in the hundiyal kept  in the temple; the temple is not a denominational as  claimed by the plaintiffs.  It is the further case of  the first defendant that the Department has been  appointing non-hereditary trustees for the temple and  the management vests with the trustees so appointed  from time to time by the Department.  In the year 1965  when the temple was brought under its control, the  Department called for objections for appointment of  non-hereditary trustees and there was no objection to  the proposal and regular applications were invited for  appointment of non-hereditary trustees.  Five persons  including Padmanabha Pillai and Subramania Pillai  (plaintiffs 2 and 3) volunteered for the appointment;  the Area Committee by its resolution dated 31.1.1966  appointed those persons as non-hereditary trustees;  further in a special meeting convened by the Inspector  of the Department, one Manickavasakam Pillai was  elected as Chairman of the Board of trustees and the  said resolution was approved by the Assistant  Commissioner (defendant no. 2) by his order dated  7.3.66.  After the expiry of the tenure of office of  those persons, fresh notices were issued calling for  applications from desiring persons to be appointed as  non-hereditary trustees to fill up vacancies in the  Board.  Plaintiffs 2 to 5 were estopped by their  conduct from contending that the suit temple is a  denominational one and that the plaintiffs have no  inherent right to be in management of the said temple.

       The trial court on the basis of the pleadings of  the parties and the evidence let in, in support of  their respective claims held that the suit temple is a  denominational temple entitled to protection as claimed  and it is not a public religious institution; at the  same time, it was held that Department is entitled to  exercise such powers which are conferred on them by law  in regard to the administration of the institution and  that the authorities had no power to appoint fit person  so as to interfere with the administration of the  temple by Vellala Community.  The Subordinate Judge in  the first appeal held that the members of  Vellala  Community do not form a religious denomination, but  they are merely a sub-caste of the Hindu religion;  their practices and observance do not lead to the  conclusion that they have common faith or they profess  certain religious tenet having common faith.  He also  took the view that several features relied upon by the  plaintiffs were not sufficient to identify the  institution as a denominational one.  In doing so, the  first appellate court relied upon the principles laid  down in the decisions reported in S.P.Mittal vs.  Union  of India and Ors. [AIR 1983 SC 1] and The Commissioner,  Hindu Religious Endowments, Madras, vs. Sri Lakshmindra  Thirtha Swamiar of Sri Shirur Matt [AIR 1954 SC 282].   In the second appeal, the learned Judge of the High  Court by a well-considered order which is impugned in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

this appeal concurred with the views expressed by the  first appellate court.  The learned Judge on a clear  analysis of the legal position expressed and explained  in various decisions, touching the question in  controversy and applying them to the facts of the  present case in the light of the rival claims, upheld  the judgment and decree passed by the first appellate  court.

       Learned counsel for the appellants contended that-   

(1) Under Section 1(3) of the Act, the institution  concerned should be public religious institution;  the religious institution is defined in Section  6(18) and temple is defined in Section 6(20) which  includes a sectarian temple; a sectarian temple  could be a public or private; the Act gets  attracted only to sectarian temples which are  public and not which are private.           (2)     The suit temple belongs to Vellala Community and  there is one single deity, namely, the Uchini  Makali Amman and that their own distinct customs  and beliefs constitute a "religious  denomination" and as such their fundamental right  under Article 26 of the Constitution and their  right under Section 107 of the Act, cannot be  transgressed by the authorities under the Act.  In  support of this submission, he placed reliance on  the decisions of this Court in Gurpur Gunni  Venkataraya Narashima Prabhu and Ors. vs.  B.C.  Achia, Asstt. Commissioner, Hindu Religious and  Charitable Endowment, Mangalore and Anr. [AIR 1977  SC 1192] and K.Eranna and Ors. vs.  Commissioner  for Hindu Religious and Charitable Endowments,  Bangalore & Ors. [AIR 1970 Mysore 191].   

(3)     The High Court committed an error in holding that  the members of Vellala Community have no distinct  name and common faith.

(4)     Plaintiffs moved the court in 1976 as soon as a  non- Vellala Community man was sought to be made a  trustee; the conduct of plaintiffs between 1965 to  1976 cannot result in a waiver of fundamental  rights.

       In opposition, the learned counsel for the  respondents made submissions supporting the impugned  judgment reiterating the submissions that were made  before the High court.  He further contended that the  first appellate court on a re-appreciation of entire  evidence on record has recorded a finding of fact  against the plaintiffs as to nature of temple supported  by good reasons; the High Court rightly found that the  judgment and decree of the first appellate court did  not call for any interference. Under the circumstances,  according to him, the impugned judgment deserved to be  maintained.

       It is settled position in law, having regard to  the various decisions of this Court that the words  "religious denomination" take their colour from the  word ‘religion’.  The expression "religious  denomination" must satisfy three requirements â\200\223 (1) it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

must be collection of individuals who have a system of  belief or doctrine  which they regard as conducive to  their spiritual well-being, i.e., a common faith; (2) a  common organisation; and (3) designation of a  distinctive name.  It necessarily follows that the  common faith of the community should be based on  religion and in that they should have common religious  tenets and the basic cord which connects them, should  be religion and not merely considerations of caste or  community or societal status.  On the basis of the  evidence placed on record, the first appellate court as  well as the High Court found that Vellala Community is  not shown to be a distinct religious denomination,  group or sect so as to be covered by Article 26 of the  Constitution.  Further, it was necessary for the  plaintiffs to establish their claim in respect of the  temple that the said denomination group has established  and is maintaining and administering the suit temple to  take the protection of Article 26 of the Constitution  and Section 107 of the Act.  High Court found, after  meticulous and careful consideration of material that  there was no evidence to prove that the members of the  Vellala Community have been shown to have any common  religious tenets peculiar to themselves other than  those who are common to the entire Hindu community.   The High Court in the impugned judgment has observed  that the materials placed by the appellants at best may  go to show that during certain period members of their  community were playing a major role in the  administration of temple.  The learned Judge of the  High Court also found that the material on record was  not sufficient to hold that the members of Vellala  Community established the temple in question, nor was  there proof of initial establishment of the temple by  them.  The first appellate court held that the  materials on record were not sufficient in law to show  that Vellala Community initially established the  temple.  Thus, the first appellate court on facts  recorded finding against the plaintiffs which findings  were affirmed by the High Court and rightly so in our  opinion.  Here itself, we may notice one more ancillary  submission of the learned counsel for the appellants  that there is no presumption as regards the temples in  Marthandam that they are public trusts and they must be  established so, on evidence.  This submission was made  taking support from two decisions (1) Mundacheri Koman  vs. Thachangat Puthan Vittil Achuthan Nair and Others  [A.I.R. 1934 PC 230] and (2) The Commissioner, Hindu  Religious and Charitable Endowment (Administration  Deptt.), Madras vs. P.Vellappan Nair [2001 (3) L.W.  327]. The finding of fact in the case on hand is not  recorded merely by raising a presumption. On the other  hand, finding of fact is recorded on the basis of  evidence available on record.  Hence, these two  decisions do not advance the case of the appellants.   

       In the light of finding of fact recorded by the  first appellate court as affirmed by the High Court,  the argument sought to be made that the Act gets  attracted only to sectarian temples which are public  and not to sectarian temples which are private in view  of Sections 1(3), 6(18) and 6(20), do not help the  appellants when there is a finding that it is not a  private temple.  Added to this, the temple was taken  under the control of the Department in the year 1965.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

That was not challenged by the appellants; Department  called for objections for appointment of non-hereditary  trustees not restricting to members of Vellala  Community only; then also no objections were filed;  thereafter regular applications were invited for  appointment of non-hereditary trustees not from the  members of Vellala Community only; five persons  including appellants 2 and 3 who volunteered for  appointment as non-hereditary trustees were appointed  by the resolution dated 31.1.1966; further in a special  meeting conveyed by Inspector of the Department, one  Manickavasakam Pillai was elected as Chairman of the  Board and the said election was approved by the  Assistant Commissioner of the Department on 7.3.1966;  on the expiry of the tenure of office of trustees,  fresh notices were issued calling for applications from  desiring persons to be appointed as non-hereditary  trustees to fill up four vacancies in the Board.  We  specifically asked learned counsel for the appellants  whether in the notices issued inviting applications for  appointment as non-hereditary trustees, any restriction  was made confining applications to the members of the  Vellala Community only.  The learned counsel fairly  stated that in the notices, no such restriction was  made.  Again in 1972, as noticed in the impugned order,  5th appellant was appointed as trustee.  The  appellants 2, 3 and 5 were appointed by the Board and  they were not chosen representatives of the community.   Under the circumstances, the claim of the appellants  was rightly negatived looking to their conduct. Hence,  it follows that the appellants were estopped by their  conduct from contending that the suit temple is a  denominational one and that the plaintiffs have any  inherent right to be in management of the said temple.  As such they were not entitled to claim any protection  under Article 26 of the Constitution or under Section  107 of the Act.

       The decision in Gurpur Gunni Venkataraya Narashima  Prabhu and Ors. (supra) in our view does not support  the case of the appellants.  That decision was rendered  on the facts of that case as observed in the impugned  judgment.  In that case, it was found on evidence that  the temple was founded by 37 Goud Saraswat Brahmin  families of Gurpur that the trustees managing the  temple belonged always to the said Community, the  landed properties owned by the temple had all been  endowed by members of the said community; there was no  reliable evidence of endowment of any immovable  property by any person outside the Community.  Further  in that case, the Subordinate Judge found that the  defendants’ witnesses on whom the defendants relied to  prove that the temple was dedicated to the general  Hindu community did not claim right of worship in the  temple.  But in the present case with which we are  concerned, facts are different and findings of the fact  recorded go against the appellants.

       The learned Judge in the impugned judgment  referred to the case of K.Eranna and Ors. (supra) and  held that the observations made in that decision are  too wide and cannot be said to be in conformity with  the catena of decisions of this Court as well as the  High Court of Madras which are referred to in the  impugned judgment itself.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

       Thus, viewed from any angle, we do not find any  merit in this appeal.  Consequently, it is dismissed.  No costs.