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PETITIONER: T.D.GOPALAN

       Vs.

RESPONDENT: COMMISSIONER  OF HINDU RELIGIOUS &  CHARITABLE  ENDOWMENTS,M

DATE OF JUDGMENT: 05/04/1966

BENCH:

ACT: Constitution of India, Art. 133(1) (a) and (b)-Valuation  of property for purpose of appeal before Supreme Court-Suit for declaration that property was not a temple within meaning of Madras Act 19 of 1951-Claim whether capable of valuation.

HEADNOTE: The  appellant  sought a declaration that  certain  premises belonged  to  his  family as private property  and  did  not constitute  a temple within the meaning of the Madras  Hindu Religious  and Charitable Endowments Act (19 of 1951).   The District  Court  decreed the suit but the High  Court  found that  the property in question was a temple.  The  appellant then  filed  a petition for leave to appeal  to  this  Court under  Art.  133(1)  (a) and (b)  of  the  Constitution  and submitted  that  the  property was more than  Rs.  20000  in value.   The  High Court dismissed the  application  on  the ground,  inter alia, that the subject matter of the  dispute whether  as  a private or a public temple was  incapable  of valuation  as it could have in either case no market  value. The appellant by special leave came to this Court. HELD:The  High Court was not right in assuming that  whether the  property  was  a private or a  public  temple,  it  was incapable  of valuation.  The subject-matter of the  dispute had  to be ascertained with reference to the claim  made  by the  plaintiff  in  his plaint and since  according  to  the plaint  the  property  was  the  private  property  of   the appellant’s  family  capable of alienation, the  High  Court ought to have valued the property accordingly. [157 A, B]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 230 of 1964. Appeal  by special leave from the judgment and  order  dated January 11, 1961 of the Madras High Court in S. C.  Petition No. 165 of 1960. R.   Ganapathy Iyer and R. Thiagarajan, for the appellant. A.   V. Rangam, for the respondent. The Judgment of the Court was delivered by Shelat,  J.  This  appeal by special leave  is  against  the order,,  of the High Court of Madras dated January 11,  1961 refusing the certificate under Art. 133(1)(a) and (b) of the Constitution.                             155 The  authorities  appointed under the  Hindu  Religious  and Charitable Endowments Act, Madras Act 11 of 1927 having held that the premises No. 29 South Masi Street, Madurai, wherein the  idol  of Sri Srinivasaparumal and certain  other  idols

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were located constituted a temple within the meaning of  the said Act, the appellant filed an application in the District Court for a declaration that the said premises were  private property  and for an order setting aside the said  decision. The  said  application  was by an order of  the  High  Court converted  into a suit.  The main question in the  suit  was whether  the said premises could be said to be a  temple  as defined  by  Madras  Act 19 of 1951.   The  District  Judge, Madurai, decreed the suit in favour of the appellant holding that the aforesaid premises did not constitute a temple  and set aside the decision of the said authorities.  On  appeal, the  High  Court reversed the said judgment and  decree  and found  that the premises in question constituted  a  temple. The appellant thereupon filed a petition for leave to appeal to  this Court and submitted that the value of the  subject- matter of dispute in the District Court as also in appeal in the  High  Court  was more than Rs. 20,000/-  and  that  the judgment of the High Court having reversed the judgment  and decree  of  the Trial Court he was entitled to  leave  under Art.  133(1)(a)  and  (b).  The High  Court  dismissed  that application on the following grounds: (a) that the  subject- matter of the dispute, whether it was a private or a  public temple  could  have  no  market  value  and  therefore   was incapable  of  valuation; (b) that cl. (b)  of  Art.  133(1) could not apply as the judgment and decree passed by it  did not involve directly or indirectly a claim or question  res- pecting  property of the value of Rs. 20,000/- or  more  and (c) that the appeal did not involve any substantial question of law. For the time being we are concerned with grounds (a) and (b) and  not  with ground (c) is the contention  raised  by  Mr. Ganapathy  Iyer  for the appellant was that the  refusal  to grant  leave by the High Court under either of  the  clauses (a) and (b) of Art. 133(1) was not correct. The  point for consideration is whether the High  Court  was right in holding that the property in question whether as  a private or a public temple was incapable of valuation as  it could  have  in  either case no market  value.   It  may  be observed  that  the  appellant  claimed  that  the  property belonged  to the Thoguluva family and he was  in  management thereof  for and on behalf of the family.  The suit  in  the first  instance  was  filed  by  him  in  the  form  of   an application,  being  O.P. No. 37 of 1950 under s.  84(2)  of Madras  Act 11 of 1927.  Under that Act only a  fixed  court fee was payable.  That being so, the appellant did not  have to  pay  court fees as it would in the case of  an  ordinary suit  on a valuation made by him therefor.  The  application was  subsequently converted into a suit by an order  of  the High Court.  He was therefore entitled 156 to  contend  at the time of the leave application  that  the property  in dispute was of the value of not less  than  Rs. 20,000/-. It  does  not appear to be in dispute that the site  of  the Mandapam  and the structure standing thereon was  originally the  property of one Kuppaiyan and his undivided sons.   The appellant’s case was that in execution of the decree in Suit No.  650  of  1882 passed against  the  said  Kuppaiyan  the property  was  sold  by  public  auction  and  purchased  by Thoguluva Thirumalayyan, the appellant’s ancestor, for a sum of  Rs.  1,060/-.   The  original  mandapam  was  thereafter improved upon and some additional structures e.g., shops and other  constructions  were  added,  the  expenses  for  such repairs and additions having been met by the descendants  of the said Thoguluva Thirumalayyan, and therefore the property

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belonged  to  and was an alienable private property  of  the family.   On the other hand, the case of the respondents  in their  written statement was that the property was a  public temple for public religious worship and that the  allegation of  the plaintiff that it was a private property capable  of alienation  was  "false  and misleading." The  case  of  the appellant  was accepted by the Trial Court but was  rejected by the High Court and the High Court held that the  property was  a public temple within the meaning of Madras Act 19  of 195 1. The  dispute between the parties was thus centred round  the question  whether  the property was  the  private  alienable property  of the said family or was a public temple as  held by  the  High  Court.  There was  evidence  that  the  shops subsequently  constructed  as  aforesaid  were  let  out  to tenants for a number of years and property taxes were levied thereon  by the Madhurai Municipality, presumably  on  their rateable  value.   We  may also mention  here  that  in  his application to this Court for directing an inquiry into  the value of the property under 0. 45, r. 1 of the Code of Civil Procedure  the  appellant  has stated that  he  has  in  his possession municipal receipts showing the property tax  paid to  the Madurai Municipality.  According to  the  appellant, property tax for the half year ending September 30, 1950 was Rs.  94-0-6 and for the half year ending March 31,  1961  it was Rs. 130.36nP. According to him the half yearly tax would be  equivalent  to one month’s rent and on  that  basis  the annual rental value would come to Rs. 1,126-6-0 in 1950  and to Rs. 1,672.32nP in 1961.  If that be so, capitalising that value at twenty times the annual rental value, the value  of the property would come to more than Rs. 20,000/-. The  refusal of the High Court to grant leave was  based  on the observation that whether the property is a private or  a public  temple,  it  was incapable  of  valuation.   But  as observed earlier the appellant’s case was that the  subject- matter  of dispute in the suit was the private  property  of the  said  family  and that it was  alienable  property  and therefore capable of a valid transfer.  That being 157 the  dispute  between the parties, the High  Court  was  not right in assuming that whether the property was a private or a  public  temple,  it  was  incapable  of  valuation.   The subject-matter  of  the dispute has to be  ascertained  with reference  to the claim made by the plaintiff in his  plaint and  since  according  to the plaint, the  property  is  the private  property of the said family capable of  alienation, the High Court ought to have valued the property accordingly though  according  to  the  respondents  the  property   was inalienable  and  was a public temple.  The High  Court  was thus wrong in proceeding on the aforesaid assumption. We  would  therefore allow the appeal, set aside  the  order passed  by  the High Court and remand the case to  the  High Court to decide the application for leave in accordance with the observations made in this judgment.  The High Court  may either  hold  the inquiry itself or remit the  case  to  the Trial  Court  to  hold  such  inquiry  and  report  to   it. Accordingly,  the  appeal is allowed and  the  High  Court’s order  is  set  aside.   The respondents  will  pay  to  the appellant the costs of this appeal.                       Appeal allowed. 158