Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 3964-3965 OF 2009
R.M. SUNDARAM @ MEENAKSHISUNDARAM ... APPELLANT
VERSUS
SRI KAYAROHANASAMY AND
NEELAYADHAKSHI AMMAN TEMPLE
(THROUGH ITS EXECUTIVE OFFICER)
NAGAPATTINAM, TAMIL NADU
...
RESPONDENT
J U D G M E N T
SANJIV KHANNA, J.
The dispute in the present appeals arises from two separate
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suits in relation to (i) the dedication of 26 items of jewellery , some
of which are embedded with diamonds and precious stones, to the
deity Sri Neelayadhakshi Amman of the Sri Kayarohanasamy and
2
Neelayadhakshi Amman Temple; and (ii) the exclusive possession
of the ‘Kudavarai’ (safe vaults) of the Temple which houses the suit
jewellery.
1
For short, ‘suit jewellery’.
2
Hereinafter referred to as the ‘respondent’ or ‘Temple’.
Civil Appeal Nos. 3964-3965 of 2009 Page 1 of 38
2. It is the case of the appellant, R.M. Sundaram, that the suit jewellery
was inherited by him as his personal property being the adopted
son of Muthuthandapani Chettiar and his wife, M. Thangammal. On
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6 November 1985, the appellant had instituted a civil suit (O.S. No.
156/1986) before the court of the District Munsiff of Nagapattinam
seeking, inter alia , a mandatory injunction directing the Temple to
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comply with the undertaking given in the letter dated 4 October
1962 and thereby permit the appellant to “ maintain independent
and exclusive possession and enjoyment of the Kudavarai ” of the
Temple. It was pleaded that during the lifetime of his father,
Muthuthandapani Chettiar, the suit jewellery known as ‘Abaranam’,
that was owned and possessed by Muthuthandapani Chettiar, was
licensed to be kept in the Kudavarai of the Temple. The proprietary
right, title and interest in the suit jewellery continued to vest with
Muthuthandapani Chettiar, who had retained possession and
remained the exclusive owner of the suit jewellery throughout his
lifetime. By way of gratitude, Muthuthandapani Chettiar, in terms of
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a letter of undertaking dated 4 October 1962, had given the keys
of two external locks of the Kudavarai to the Executive Officer of
the Temple to temporarily store the Temple jewellery, which is
different from the suit jewellery, in the Kudavarai. This was a
temporary arrangement, as expressly stated in the undertaking,
Civil Appeal Nos. 3964-3965 of 2009 Page 2 of 38
and the Temple jewellery would be shifted back to the treasury
room of the Temple after it was renovated. The plaint also refers to
a civil suit filed by the respondent/Temple in the year 1981 (O.S.
No. 99/1981) before the Subordinate Judge of Nagapattinam, an
aspect which we would advert to in some detail later on.
3. The respondent/Temple contested the suit on several grounds
including, inter alia , the appellant’s right to file such a suit, the
maintainability of the suit filed, the appellant’s status as the adopted
son on Muthuthandapani Chettiar, the appellant’s lack of title over
the suit jewellery, and the custody over the keys of the Kudavarai
by Muthuthandapani Chettiar being merely an honorary
responsibility. On merits, it was contended by the Temple that the
suit jewellery, namely Abaranams, and the Temple jewellery were
acquired from time to time over the past few centuries by way of
donations or endowments made by unknown donors. The suit
jewellery as well as the other Temple jewels have always been in
the custody, use, enjoyment and possession of the idol/deity, Sri
Neelayadhakshi Amman, only through the functionaries of the
Temple and no other person. The suit jewellery was donated by the
ancestors of Muthuthandapani Chettiar absolutely to the idol/deity
and constitutes a specific endowment attached to the Temple. The
donations have been recorded as Sri Adipoora Amman
Civil Appeal Nos. 3964-3965 of 2009 Page 3 of 38
(Neelayadhakshi Amman) Thiruvabaranam Endownment. The suit
jewellery is adorned by Sri Neelayadhakshi Amman deity for ten
days in the month of Adi every year marking the festival of
adolescence and puberty in a celestial and mythological sense. On
this occasion, many people, particularly women, celebrate the
festival with great enthusiasm by distributing all sorts of ‘Mangala
Samans’ to all women devotees and worshippers thronging the
Temple. During this festival time, the ‘Utsava’ deity of Sri
Neelayadhakshi Amman (popularly known as Sri Adipoora Amman)
and the deity idol (Sri Neelayadhakshi Amman) used to be/are
decked and decorated in all glory and grandeur with gold and silver
jewellery studded with precious stones from ‘Kireedam to Thiruvadi’
and then taken out in a Temple car and ratham in grand procession
around the four streets on all ten days of the festival. The Kudavarai
is located inside the Temple and is the innermost and integral
portion of the Temple. It is guarded in terms of security and
operated on a system of ‘Multiple Lock and Keys and Joint Control,
Operation and Maintenance’ (MLKJCOM), to ensure safe custody
of jewellery and valuable articles. Therefore, the suit jewellery was
only used on the occasion of the Adipooram festival and could not
be taken out of the Kudavarai frequently or at will. While admitting
that two keys of the external door-way of the Kudavarai as well as
Civil Appeal Nos. 3964-3965 of 2009 Page 4 of 38
the keys of the iron safe, wherein the suit jewellery was kept, were
with the appellant, it is stated that the management of the
respondent/Temple was in possession of several keys, including
keys of the external door-way of the Kudavarai. Apart from the
wooden jewellery boxes inside the iron safe, the Kudavarai also
houses the two steel almirahs wherein the Temple jewellery and
other Thiruvabaranams are kept. These articles and the suit
jewellery do not belong to any person or private individual and
were/are for the use of the deity.
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4. With reference to the letter of undertaking dated 4 October 1962,
it is stated that the undertaking is a dead letter as it creates no right
or privilege in favour of the appellant and in any event,
Muthuthandapani Chettiar and his wife, M. Thangammal, had
neither sought to enforce this letter-undertaking nor sought return
of the two keys during their lifetime. The appellant had, nearly 23
years thereafter, raised a claim in respect of the suit jewellery.
5. The suit filed by the appellant was dismissed by the trial court, vide
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judgment dated 26 November 1990, primarily on the ground that
the suit was not maintainable and that the undertaking was not
acted upon by the appellant’s adoptive father, Muthuthandapani
Chettiar. The respondent/Temple being a religious institution under
Civil Appeal Nos. 3964-3965 of 2009 Page 5 of 38
the Tamil Nadu Hindu Religious and Charitable Endowments Act,
3
1959, the Government can frame rules regarding the custody of
jewels, other valuables and documents of religious institutions
under Section 116(2)(xii) of the 1959 Act, which would also apply
to the suit jewellery in the Kudavarai. The appellant, instead of
applying to the Commissioner, had filed the civil suit which was not
maintainable under Section 108 of the 1959 Act. The claim for
possession of Kudavarai was also barred as it interfered with the
internal administration of the Temple.
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6. In relation to the undertaking dated 4 October 1962, the trial court
observed that it was never acted upon by Muthuthandapani Chettiar
prior to his death in 1969 and that the relief sought by the appellant
was barred by limitation as it was instituted beyond the period of
three years as stipulated in Article 113 of the Limitation Act, 1963.
7. The first appeal (A.S. No. 354/1992) preferred by the appellant
against this judgment was also dismissed by the Subordinate
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Judge, Nagapattinam, vide judgment dated 30 August 1993, who
reiterated that the suit was barred under the 1959 Act and the
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undertaking dated 4 October 1962 was not acted upon during the
lifetime of Muthuthandapani Chettiar.
3
Hereinafter referred to as the ‘1959 Act’.
Civil Appeal Nos. 3964-3965 of 2009 Page 6 of 38
8. The appellant had, thereupon, preferred a second appeal (S.A. No.
1522/1993) before the High Court which has been dismissed by the
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impugned judgment dated 30 June 2008.
9. The impugned common judgment, however, allowed the second
appeal (S.A. No. 829/2000) preferred by the respondent/Temple
which had arisen from a separate independent suit (O.S. No.
87/1990, renumbered as O.S. No. 56/1996) instituted by the
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Temple on 11 June 1990 before the Subordinate Judge of
Nagapattinam seeking, inter alia , a declaration of existence of
specific endowment in respect of the suit jewellery in favour of the
deity, Sri Neelayadhakshi Amman, and for a decree of permanent
injunction restraining the appellant from interfering with the right of
the deity to take out the suit jewellery from the Kudavarai.
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10. The trial court vide judgment dated 17 October 1996 decreed the
suit accepting the version of the respondent/Temple that the suit
jewellery was donated by the ancestors of Muthuthandapani
Chettiar since 1894. Specific reliance was placed on the Temple
Account Book (Exhibit A-1), which had recorded and given details
of the suit jewellery. Further, witnesses produced by the
respondent/Temple had deposed that the suit jewellery was
adorned by the Amman idol and the suit jewellery would be taken
Civil Appeal Nos. 3964-3965 of 2009 Page 7 of 38
out by Muthuthandapani Chettiar from the Kudavarai for this
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purpose. It was observed that the undertaking dated 4 October
1962, which was marked as Exhibit B-1, was not acted upon by
Muthuthandapani Chettiar, as was recorded in the decision of the
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trial court dated 26 November 1990 in the appellant’s suit. The trial
court held that the reliance placed by the appellant upon the
adoption deed (marked as Exhibit A-6), entered into after the death
of Muthuthandapani Chettiar, was of no avail as the suit jewellery
had been donated to the Temple and stored within the premises of
the Temple since 1894. The suit jewellery was not made for the
benefit of the family of Muthuthandapani Chettiar. The suit jewellery
was kept inside the vault of the respondent/Temple as it was
donated by the ancestors of Sri Muthuthandapani Chettiar for
decorating and use of the idol Amman. The trial court was also of
the view that the appellant had not been able to prove his adoption
by Muthuthandapani Chettiar and his wife, M. Thangammal, an
aspect which was not examined by the High Court in the second
appeal.
11. The trial court, while granting a decree of declaration, refused to
issue a decree for permanent injunction since that the Temple had
stated that two keys of the main door of the Kudavarai and the iron
Civil Appeal Nos. 3964-3965 of 2009 Page 8 of 38
safe were in the possession of Muthuthandapani Chettiar and the
evidence indicated the right of possession of Muthuthandapani
Chettiar to the extent of taking out and keeping back the suit
jewellery as a mark of honour. As such, the appellant had the right
of possession to give and take back the donated suit jewellery
during the Adipooram festival days. The appellant, it was observed,
would render full cooperation in opening the Kudavarai and giving
the suit jewellery on the festive occasion. Granting an injunction
would result in depriving the members of the family of
Muthuthandapani Chettiar from the honour of opening the doors of
Kudavarai with the keys in their possession and handing over the
suit jewellery for adorning the idol/ deity.
12. The appellant, however, succeeded in the first appeal (A.S. No.
6/1999) before the Additional Subordinate Judge of Nagapattinam
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wherein the appellant court, vide judgment dated 5 August 1999,
held that the suit filed by the respondent/Temple for declaration was
4
barred under Order II Rule 2 of Code of Civil Procedure, 1908 as
the respondent had earlier filed a civil suit in 1981(O.S. No.
99/1981) with a prayer for appointment of a receiver to make an
inventory of the suit jewellery which was dismissed by the trial court
4
For short, the ‘Code’
Civil Appeal Nos. 3964-3965 of 2009 Page 9 of 38
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on 6 September 1982. The first appellate court held that the
Temple had omitted to seek a declaration as to the ownership of
the suit jewellery and as such the Temple was barred from filing a
suit for declaration of the suit jewellery as a specific endowment. At
the same time, the first appellate court held that the suit was not
barred by limitation as the suit jewellery was in custody of the
respondent Temple being kept in the Kudavarai situated inside the
Temple. The two keys of the Kudavarai were also with the
respondent/Temple and, therefore, it was clear that the locks of the
Kudavarai could be jointly operated by the appellant and the
respondent/Temple, and the suit jewellery boxes could not be
opened without joint operation. The first appellate court examined
the question of ownership and affirmatively accepted the case of
the respondent that the suit jewellery was donated by the ancestors
of Muthuthandapani Chettiar and is an endowment vested in the
respondent/Temple. The suit jewellery was also recorded in the
register, Exhibit A-1, maintained by the respondent/Temple even in
the year 1963.
13. The cross-appeal (A.S. No. 40/1997) preferred by the respondent/
Temple against rejection of the prayer for grant of injunction was
also dismissed by the first appellate court.
Civil Appeal Nos. 3964-3965 of 2009 Page 10 of 38
14. Aggrieved, the respondent/Temple had preferred a second appeal
before the High Court, which was allowed by the impugned
judgment, which as noticed above, had also decided the second
appeal preferred by the appellant dismissing his suit for mandatory
injunction.
15. It is clear from the aforesaid discussion that, as far as endowment
of the suit jewellery is concerned, there are concurrent findings of
fact by the three courts in favour of the respondent/Temple and
against the appellant. As per the said findings, the suit jewellery, 26
in number, had been gifted by the ancestors of Muthuthandapani
Chettiar for the specific purpose of adorning the deity, Sri
Neelayadhakshi Amman, during the Adipooram festival. No doubt,
the keys of the Kudavarai were in the custody of Muthuthandapani
Chettiar and thereafter, his widow, M. Thangammal. However, this
was more out of deference and honour, as the ancestors of
Muthuthandapani Chettiar had donated the jewellery, and not on
account of personal ownership of Muthuthandapani Chettiar or his
ancestors. The administration of the Temple was originally vested
with Nagai District Devasthanam Committee. Pursuant to Order No.
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G.O. 135 dated 16 January 1942, a revised scheme of Hindu
Religious and Charitable Endowment was implemented and the
respondent/Temple came under direct administration of the Hindu
Civil Appeal Nos. 3964-3965 of 2009 Page 11 of 38
Religious and Charitable Endowments under the Madras Hindu
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Religious Endowments Act, 1926 enforced with effect from 19
January 1927. Subsequently, on enforcement of the 1959 Act, the
management was taken over by the Executive Officer and Trustees
appointed under the 1959 Act. It is to be noted that two important
festivals are celebrated at the Temple, namely Adipooram and
Panchakrosam. Adipooram is a unique festival spread over ten
days celebrating the coming of age of the goddess. On the tenth
day, after sacred bath, the idol of goddess Sri Neelayadhakshi
Amman is taken in procession in a Temple car. During the
Adipooram festival, the goddess Sri Neelayadhakshi Amman is
adorned with the suit jewellery. The High Court rereferred to the
evidence on record, including testimony of the witnesses, who, it is
obvious, could not have deposed as to the donation of the ‘suit
jewellery’ which had taken place in or before 1894, but what was
seen and noticed by the witnesses during their lifetime. PW-3,
5
Abadhthothranam Chettiar , the son of an erstwhile trustee of the
Temple, had testified that the ancestors of Muthuthandapani
Chettiar gave the suit jewellery to the Temple which was used
during the ten days of the Adipooram festival to adorn the idol/deity,
Sri Neelayadhakshi Amman, and could not be used by members of
5
‘Abathaoranam Chettiar’ in the record of evidence
Civil Appeal Nos. 3964-3965 of 2009 Page 12 of 38
the family of Muthuthandapani Chettiar. The jewellery was never
taken out of the Temple and Muthuthandapani Chettiar had the
honour of taking and giving out the suit jewellery at the Adipooram
festival. Members of the family of Muthuthandapani Chettiar had
6
never claimed rights over the suit jewellery. PW-4, Sundarajan ,
another erstwhile trustee of the Temple during the period 1972-
1977, had similarly deposed that the jewellery was only adorned by
the idol/ deity, Sri Neelayadhakshi Amman, and neither
Muthuthandapani Chettiar nor the members of his family claimed
any right over the suit jewellery. There was no custom to take the
suit jewellery by the family of Muthuthandapani Chettiar outside the
7
Temple. PW-5, Kalimuthu , who had been closely associated with
Muthuthandapani Chettiar, had affirmatively stated that the suit
jewellery was gifted by ancestors of Muthuthandapani Chettiar to
be adorned by the idol/ deity during the Adipooram festival. On this
festive occasion, Muthuthandapani Chettiar would be happy to
open the Kudavarai and take out the suit jewellery for being
adorned by the deity. In doing so, Muthuthandapani Chettiar would
follow the practice of his ancestors and had never claimed any right
over the suit jewellery.
6
‘Soundarajan’ in the record of evidence
7
‘Marimuthu’ in the record of evidence
Civil Appeal Nos. 3964-3965 of 2009 Page 13 of 38
16. It is interesting to note that the appellant does not dispute that the
Kudavarai is located in the Temple. In his testimony in Suit No.
156/86, the appellant Sundaram as PW-1 had deposed that
Muthuthandapani Chettiar had plenty of ornaments which belonged
to the family, and the claim made is that Kudavarai in the Temple,
was allotted to them to keep the ornaments for safety. The stand is
ex-facie implausible and unbelievable, given the fact that the
Temple is a public temple. Kudavarai is not a public vault where
people keep their personal jewellery, and the suit jewellery kept in
it since 1894 was always and only used for adorning the Temple
deity for ten days at the Adipooram festival.
17. Referring to the documents on record, specific reference has been
made by the High Court to Exhibit A-1, the register containing
details and particulars of the suit jewellery, wherein the suit
jewellery (26 in number) were shown as ‘Adipooram Ambal Thiru
Abaranam’. In the remarks column it was noted that the jewellery
“ are in the custody of Mr. S.M.T.M. Muthuthandapani Chettiar of
Nagapattinam ”. Other jewellery items were shown in different
headings of ‘Temple Series’. The impugned judgment observes that
the 26 items of suit jewellery being identified as ‘Adipooram Ambal
Thiru Abaranam’, is a strong piece of evidence which supports the
respondent’s case. Exhibit A-1 was a register maintained in regular
Civil Appeal Nos. 3964-3965 of 2009 Page 14 of 38
course of administration of Temple containing details and
particulars of jewels of the Temple. Even in 1963, the suit jewellery
had been shown as ‘Adipooram Ambal Thiru Abaranam’.
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Muthuthandapani Chettiar died on 21 August 1969 and had never
claimed any right on the suit jewellery during his lifetime. Reference
was also made to Exhibit A-3 which indicated that the respondent/
Temple was under the administration of Devasthanam Committee
of Nagapattinam District. Thereafter, in terms of the revised scheme
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dated 16 January 1942, the Temple had come under the State
administration, which had continued under the 1959 Act with
appointment of Executive Officer and Trustees. The High Court
referred to Section 29(d) of the 1959 Act in relation to preparation
of register of every religious institution for “ jewels, gold, silver,
precious stones, vessels and utensils and other movables
belonging to the institution, with their weights and estimated value ”
and placed reliance on illustration (e) to Section 114 of the Indian
Evidence Act, 1872 concerning the presumption that an official act
has been regularly performed, to hold that the Exhibit A-1 is
unimpeachable evidence showing that the suit jewellery are
‘Adipooram Ambal Thiru Abaranam’. The High Court also made
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reference to Exhibit B-1, the family settlement dated 26 October
1969, which was entered into, after the death of Muthuthandapani
Civil Appeal Nos. 3964-3965 of 2009 Page 15 of 38
Chettiar, by the wife of Muthuthandapani Chettiar, M. Thangammal,
and his brother’s widow, which referred to the large number of
family properties dedicated for endowment to various temples by
the family of Muthuthandapani Chettiar. Exhibit B-1 records that
Muthuthandapani Chettiar and his ancestors were liberal in creating
endowments and dedicating family properties to temples and
performance of other dharmams. Exhibit B-1 referred to the
‘Adipooram Ambal Thiru Abaranam’ and the fact that after the death
of Muthuthandapani Chettiar, his wife, M. Thangammal, “ had the
keys of the Kudavarai and she will hand over the jewellery during
the festival sessions or whenever required .”
18. We are in agreement with the said findings recorded by the High
Court. The findings are supported by the legal position on the effect
of endowment, which is well settled and we would like to refer to
only a few decisions.
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19. In Deoki Nandan v. Murlidhar and Others , a bench of five Judges
of this Court has held that:
“the true beneficiaries of religious endowments are not
the idols but the worshippers, and that the purpose of
the endowment is the maintenance of that worship for
the benefit of the worshippers, the question whether an
endowment is private or public presents no difficulty.
The cardinal point to be decided is whether it was the
8
AIR 1957 SC 133
Civil Appeal Nos. 3964-3965 of 2009 Page 16 of 38
intention of the founder that specified individuals are to
have the right of worship at the shrine, or the general
public or any specified portion thereof. In accordance
with this theory, it has been held that when property is
dedicated for the worship of a family idol, it is a private
and not a public endowment, as the persons who are
entitled to worship at the shrine of the deity can only be
the members of the family, and that is an ascertained
group of individuals. But where the beneficiaries are not
members of a family or a specified individual, then the
endowment can only be regarded as public, intended to
benefit the general body of worshippers.
xx xx xx
Endowment can validly be created in favour of an idol
or temple without the performance of any particular
ceremonies, provided the settlor has clearly and
unambiguously expressed his intention in that behalf.
Where it is proved that ceremonies were performed,
that would be valuable evidence of endowment, but
absence of such proof would not be conclusive against
it.”
20. Following the above ratio in The Commissioner for Hindu
Religious and Charitable Endowments , Mysore v. Sri
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Ratnavarma Heggade (Deceased) by his L. Rs. , this Court has
observed that:
“Neither a document nor express words are essential
for a dedication for a religious or public purpose in our
country. Such dedications may be implied from user
permitted for public and religious purposes for sufficient
length of time. The conduct of those whose property is
presumed to be dedicated for a religious or public
purpose and other circumstances are taken into
account in arriving at the inference of such a dedication.
Although religious ceremonies of Sankalpa and
9
(1977) 1 SCC 525
Civil Appeal Nos. 3964-3965 of 2009 Page 17 of 38
Samarpanam are relevant for proving a dedication, yet,
they are not indispensable”
Thus, extinction of private character of a property can be
inferred from the circumstances and facts on record, including
sufficient length of time, which shows user permitted for religious or
public purposes.
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21. Earlier, in M.R. Goda Rao Sahib v. State of Madras , this Court
has observed that in an absolute dedication, the property is given
out and out to an idol or religious or charitable institution and the
donor divests himself of all beneficial interests in the property
comprised in the endowment. Where the dedication is partial, a
charge is created on the property or there is a trust to receive and
apply a portion of the income for the religious or charitable
purposes. In the latter case, the property descends and is alienable
and partible in the ordinary way, but the only reference is that it
passes with a charge upon it. The Court had relied on the provisions
of the Madras Hindu Religious and Charitable Endowments
11
Act,1951 and in particular to Section 32 thereof, to observe that:
10
(1966) 1 SCR 643
11
Section 38(1) of the 1959 Act reads- “ Section 38 - Enforcement of service or charity in certain cases
-(1) Where a specific endowment attached to a math or temple consists merely of a charge on property
and there is failure in the due performance of the service or charity, the trustee of the math or temple
concerned may require the person in possession of the property on which the endowment is a charge,
to pay the expenses incurred or likely to be incurred in causing the service or charity to be performed
otherwise. In default of such person making payment as required, the Commissioner in the case of a
specific endowment attached to a math, and the Joint Commissioner or the Deputy Commissioner, as
the case may be, in the case of a specific endowment attached to a temple, may, on the application of
Civil Appeal Nos. 3964-3965 of 2009 Page 18 of 38
“There is no dispute that in order that there may be an
endowment within the meaning of the Act, the settlor
must divest himself of the property endowed. To create
an endowment he must give it and if he has given it, he
of course has not retained it; he has then divested
himself of it. ….By the instrument the settlors certainly
divested themselves of the right to receive a certain part
of the income derived from the properties in question.
They deprived themselves of the right to deal with the
properties free of charge as absolute owners which they
previously were. The instrument was a binding
instrument. This indeed is not in dispute. The rights
created by it were, therefore, enforceable in law. The
charities could compel the payment to them of the
amount provided in Schedule B, and, if necessary for
that purpose, enforce the charge. This, of course, could
not be if the proprietors had retained the right to the
amount or remained full owners of the property as
before the creation of the charge….By providing that
their liability to pay the amount would be a charge on
the properties, the settlors emphasised that they were
divesting themselves of the right to the income and the
right to deal with the property as if it was
unencumbered. By creating the charge they provided a
security for the due performance by them of the liability
which they undertook. Further Section 32 of the Act
provides that where a specific endowment to a temple
consists merely of a charge on property, the trustees of
the temple might require the person in possession of
the properties charged to pay the expenses in respect
of which the charge was created. This section
undoubtedly shows that the Act contemplates a charge
as an endowment.”
Interpreting the said section, this Court held that specific
endowment attached to a math or a temple may consist merely of
a charge on the property. Therefore, in order to constitute specific
the trustee and after giving the person in possession, a reasonable opportunity of stating his objections
in regard thereto, by order determine the amount payable to the trustee .”
Civil Appeal Nos. 3964-3965 of 2009 Page 19 of 38
endowment it is not necessary that there must be transfer of title or
divestment of the title to the property.
22. For the sake of completeness, we must record that under the 1926
Act, the expression ‘religious endowment’ or ‘endowment’ was
defined vide sub-section (11) to Section 9 to mean
“ all property belonging to, or given or endowed for the
support of, maths or temples or for the performance of
any service or charity connected therewith and includes
the premises of maths or temples but does not include
gifts of property made as personal gifts or offerings to
the head of a math or to the archaka or other employee
of a temple ”.
The 1959 Act, on the other hand, defines ‘religious
endowment’ or ‘endowment’ in sub-section (17) to Section 6 as
under:
““ Religious endowment” or “endowment” means all
property belonging to or given or endowed for the
support of maths or temples, or given or endowed for
the performance of any service or charity of a public
nature connected therewith or of any other religious
charity; and includes the institution concerned and also
the premises thereof, but does not include gifts of
property made as personal gifts to the archaka, service
holder or other employee of a religious institution
Explanation.— (1) Any inam granted to an archaka,
service holder or other employee of a religious
institution for the performance of any service or
charity in or connected with a religious institution
shall not be deemed to be a personal gift to the
archaka, service holder or employee but shall be
deemed to be a religious endowment.
Explanation.— (2) All property which belonged to,
or was given or endowed for the support of a
Civil Appeal Nos. 3964-3965 of 2009 Page 20 of 38
religious institution, or which was given or endowed
for the performance of any service or charity of a
public nature connected therewith or of any other
religious charity shall be deemed to be a “religious
endowment” or endowment” within the meaning of
this definition, notwithstanding that, before or after
the date of the commencement of this Act, the
religious institution has ceased to exist or ceased to
be used as a place of religious worship or
instruction or the service or charity has ceased to
be performed:
Provided that this Explanation shall not be
deemed to apply in respect of any property
which vested in any person before the 30th
September 1951, by the operation of the law
of limitation; ”
Sub-section (19) to Section 6 defines ‘specific endowment’
reads as under:
“ “specific endowment” means any property or money
endowed for the performance of any specific service or
charity in a math or temple or for the performance of any
other religious charity, but does not include an inam of
the nature described in Explanation (1) to clause (17);
Explanation. — (1) Two or more endowments of the
nature specified in this clause, the administration of
which is vested in a common trustee, or which are
managed under a common scheme settled or
deemed to have been settled under this Act, shall
be construed as a single specific endowment for the
purposes of this Act ;
Explanation.— (2) Where a specific endowment
attached to a math or temple is situated partly within
the State and partly outside the State, control shall
be exercised in accordance with the provisions of
this Act over the part of the specific endowment
situated within the State; ”
Civil Appeal Nos. 3964-3965 of 2009 Page 21 of 38
In the context of the present case and the facts recorded above, it
is clear that the suit jewellery was a ‘specific endowment’ for the
performance of the specific service of adorning the deity, Sri
Neelayadhakshi Amman, to be taken out in the Temple car and
ratham in a grand procession during the Adipooram festival.
Further, as explained below, it was a charity in favour of the Temple
and was for performance of a religious charity. The involvement of
the family of the appellant was limited and restricted to retaining the
keys of the Kudavarai and the iron safe which were to be opened
at the time of the festival of Adipooram and the suit jewellery was
to be taken out for the specific purpose of adorning the deity, Sri
Neelayadhakshi Amman.
23. Lastly, we would refer to a recent judgment of this Court in Idol of
Sri Renganathaswamy represented by its Executive Officer,
Joint Commissioner v. P.K. Thoppulan Chettiar, Ramanuja
Koodam Anandhana Trust, represented by its Managing
12
Trustee and Others which draws a distinction between a
‘religious charity’ as defined in sub-section (16) to Section 6 from a
charity associated with a finite group of identifiable persons, which
is a charity of a private character. It was observed that:
12
(2020) 17 SCC 96
Civil Appeal Nos. 3964-3965 of 2009 Page 22 of 38
“for a charity to constitute a “religious charity”, there is
no requirement for the public charity to be connected
with a particular temple or a math. In terms of the
statutory definition, for a charity to constitute a “religious
charity” under the 1959 Act, two conditions must be
met. First , it must be a “public charity” and second , it
must be “associated with” a Hindu festival or
observance of a religious character. If these two
conditions are satisfied, a charity is a “religious charity
(emphasis added)
xx xx xx
Where the beneficiaries of a trust or charity are limited
to a finite group of identifiable individuals, the trust or
charity is of a private character. However, where the
beneficiaries are either the public at large or an
amorphous and fluctuating body of persons incapable
of being specifically identifiable, the trust or charity is of
a public character.”
24. This decision has referred to an earlier decision in M.J.
Thulasiraman and Another v. Commissioner, Hindu Religious
13
and Charitable Endowment Administration and Another ,
which had examined and elucidated on the words ‘endow’ and
‘endowment’ to state that they relate to idea of giving, bequeathing
or dedicating something, whether property or otherwise, for some
purpose. The purpose should be with respect to religion or charity.
In our opinion, the said tests are satisfied in the present case and
the specific endowment of the suit jewellery as religious charity is
established beyond doubt.
13
(2019) 8 SCC 689
Civil Appeal Nos. 3964-3965 of 2009 Page 23 of 38
25. Therefore, in view of the judgments quoted above and the aforesaid
statutory provisions, it must be held that the case of the appellant
that there was no endowment or specific endowment must fail and
has no legs to stand on. The dedication of the suit jewellery does
not require an express dedication or document, and can be inferred
from the circumstances, especially the uninterrupted and long
possession of the suit jewellery by the respondent/Temple. The
private character of the jewels had extinguished long back and the
appellant has no basis to claim that the suit jewellery was inherited
by him from his adoptive parents. The endowment is clearly public
in nature and for the purposes of performing religious ceremonies.
As confirmed by three courts, with which we are in agreement, the
suit jewellery was dedicated for a specific purpose and can only be
used during the performance of the religious ceremony during the
Adipooram festival.
26. The claim of the appellant based on the principle of res judicata and
14
constructive res judicata/ Order II Rule 2 of the Code as the
respondent/ Temple has earlier filed a suit for appointment of a
14
“ Order II - Suit to include the whole claim.—…
(2) Relinquishment of part of claim.—Where a plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted
or relinquished. ”
Civil Appeal Nos. 3964-3965 of 2009 Page 24 of 38
receiver for taking inventory of the suit jewellery is also without
merit.
27. The respondent had filed a civil suit in November 1981 (O.S. No.
99/1981) before the Subordinate Judge, Nagapattinam against the
present appellant, R. M. Sundaram, and his mother, M.
Thangammal. It was stated that there is a separate room in the
Temple called the Kudavarai which has an iron gate. Inside the
Kudavarai, there are two steel almirahs and an iron safe. The two
steel almirahs contain many items of gold jewellery belonging
exclusively to the respondent/Temple and the iron safe in the
Kudavarai had 26 items of jewellery, namely the suit jewellery,
which were donated to the respondent/Temple about 80 years back
by the ancestors of Muthuthandapani Chettiar. It was further stated
that the keys of the iron safe were with the family of
Muthuthandapani Chettiar while the keys of the two almirahs were
with the Joint Sub-Registrar, Nagapattinam, in the capacity as
Double Lock Officer. One set of the keys of the outer door was with
the Executive Officer and the other set was with the family of
Muthuthandapani Chettiar. The Kudavarai cannot be accessed
unless the two sets of keys were jointly operated to open the main
door. It was stated that large items of jewellery were missing from
Civil Appeal Nos. 3964-3965 of 2009 Page 25 of 38
the Temple premises for some time and the then Executive Officer
of the respondent/Temple had died under suspicious
circumstances. Some jewellery was found to be missing from the
Temple which was being investigated by the police, and shortage
of jewellery had also been discovered in other temples. In these
circumstances and on the instructions of the State Government, the
Commissioner, under the 1959 Act, had directed all temples to
verify the jewellery as per the original appraisement register. The
family of Muthuthandapani Chettiar had been requested and was
served with the notice in this regard, but had expressed their
inability to comply with the request for inspection.
28. In the written statement filed by the appellant, they had accepted
use of the suit jewellery on the festive occasions for adorning the
presiding deity but had pleaded that there was no dedication or
charity, absolute or conditional. It was submitted that the suit
jewellery was used by the family of Muthuthandapani Chettiar. The
suit jewellery was licensed to be kept in the Kudavarai under the
control of the respondent /Temple to avoid loss on account of
natural calamity or cyclone and tidal waves. The suit jewellery was
kept for safe custody with the right to revoke the license. The
appellant, therefore, contended that he was entitled to remove the
Civil Appeal Nos. 3964-3965 of 2009 Page 26 of 38
suit jewellery to a place of his choice and even to stop the
respondent/Temple from using the suit jewellery during Adipooram
festival.
29. As is evident, the prior suit of 1981 arose from a very peculiar set
of facts and circumstances and the cause of action as per the plaint
are completely unrelated to the suits being considered in the
present appeals. In our opinion, the High Court has rightly rejected
the plea of res judicata and constructive res judicata / Order II Rule
2 of the Code.
15
30. This Court in Sheodan Singh v. Daryao Kunwar (SMT) has laid
down that the following conditions must be satisfied to constitute a
plea of res judicata :
“( i ) The matter directly and substantially in issue in the
subsequent suit or issue must be the same matter
which was directly and substantially in issue in the
former suit;
( ii ) The former suit must have been a suit between the
same parties or between parties under whom they or
any of them claim;
( iii ) The parties must have litigated under the same title
in the former suit;
( iv ) The court which decided the former suit must be a
court competent to try the subsequent suit or the suit in
which such issue is subsequently raised; and
( v ) The matter directly and substantially in issue in the
subsequent suit must have been heard and finally
decided by the court in the first suit. Further Explanation
15
AIR 1966 SC 1332
Civil Appeal Nos. 3964-3965 of 2009 Page 27 of 38
1 shows that it is not the date on which the suit is filed
that matters but the date on which the suit is decided,
so that even if a suit was filed later, it will be a former
suit if it has been decided earlier. In order therefore that
the decision in the earlier two appeals dismissed by the
High Court operates as res judicata it will have to be
seen whether all the five conditions mentioned above
have been satisfied.”
31. General principle of res judicata under Section 11 of the Code
contains rules of conclusiveness of judgment, but for res judicata to
apply, the matter directly and substantially in issue in the
subsequent suit must be the same matter which was directly and
substantially in issue in the former suit. Further, the suit should have
been decided on merits and the decision should have attained
finality. Where the former suit is dismissed by the trial court for want
of jurisdiction, or for default of the plaintiff’s appearance, or on the
ground of non-joinder or mis-joinder of parties or multifariousness,
or on the ground that the suit was badly framed, or on the ground
of a technical mistake, or for failure on the part of the plaintiff to
produce probate or letter of administration or succession certificate
when the same is required by law to entitle the plaintiff to a decree,
or for failure to furnish security for costs, or on the ground of
improper valuation, or for failure to pay additional court fee on a
plaint which was undervalued, or for want of cause of action, or on
the ground that it is premature and the dismissal is confirmed in
Civil Appeal Nos. 3964-3965 of 2009 Page 28 of 38
appeal (if any), the decision, not being on the merits, would not be
16
res judicata in a subsequent suit. The reason is that the first suit is
not decided on merits.
32. In the present case, the suit filed in 1981 for appointment of the
receiver for preparing an inventory of the suit jewellery was not
decided on merits but was dismissed on the ground that the
respondent had prayed for mandatory injunction and had not made
a prayer for declaration of title. Thus, the suit was dismissed for
technical reasons, which decision is not an adjudication on merits
of the dispute that would operate as res judicata on the merits of
the matter. Further, to succeed and establish a prayer for res
judicata , the party taking the said prayer must place on record a
copy of the pleadings and the judgments passed, including the
appellate judgment which has attained finality. In the present case,
the appellant did not place on record a copy of the appellate
judgment and it is accepted that the second appeal filed by the
respondent was dismissed, giving liberty to the respondent to file a
fresh suit with a prayer of declaration of title/endowment in respect
of the suit jewellery. The liberty granted was not challenged by the
appellant. The right to file a fresh suit to the Temple, therefore,
16
Sheodan Singh v. Daryao Kunwar (SMT) AIR 1966 SC 1332
Civil Appeal Nos. 3964-3965 of 2009 Page 29 of 38
should not be denied. The bar of constructive res judicata / Order II
Rule 2 of the Code is not attracted.
33. The plea of constructive res judicata/ Order II Rule 2 of the Code
also fails as the cause of action in the first suit filed in 1981 was
limited and predicated on account of the failure of the appellant to
open the locks of the safe and the main door of the Kudavarai, the
keys of which were available with the appellant and required joint
operation. Here again, the party claiming and raising the plea of
constructive res judicata/ Order II Rule 2 of the Code must place on
record in evidence the pleadings of the previous suit and establish
the identity of the cause of actions, which cannot be established in
the absence of record of judgment and decree which is pleaded to
operate as estoppel. In this regard, we would like to refer to
17
judgment of this Court in Gurbux Singh v. Bhooralal wherein it
has been observed:
“In order that a plea of a Bar under Order 2 Rule 2(3) of
the Civil Procedure Code should succeed the defendant
who raises the plea must make out; (i) that the second
suit was in respect of the same cause of action as that
on which the previous suit was based; (2) that in respect
of that cause of action the plaintiff was entitled to more
than one relief; (3) that being thus entitled to more than
one relief the plaintiff, without leave obtained from the
Court omitted to sue for the relief for which the second
suit had been filed. From this analysis it would be seen
that the defendant would have to establish primarily and
17
AIR 1964 SC 1810
Civil Appeal Nos. 3964-3965 of 2009 Page 30 of 38
to start with, the precise cause of action upon which the
previous suit was filed, for unless there is identity
between the cause of action on which the earlier suit
was filed and that on which the claim in the latter suit is
based there would be no scope for the application of the
bar. No doubt, a relief which is sought in a plaint could
ordinarily be traceable to a particular cause of action but
this might, by no means, be the universal rule. As the
plea is a technical bar it has to be established
satisfactorily and cannot be presumed merely on basis
of inferential reasoning. It is for this reason that we
consider that a plea of a bar under Order 2 Rule 2 of the
Civil Procedure Code can be established only if the
defendant files in evidence the pleadings in the
previous suit and thereby proves to the Court the
identity of the cause of action in the two suits.
Just as in the case of a plea of res judicata which cannot
be established in the absence on the record of the
judgment and decree which is pleaded as estoppel, we
consider that a plea under Order 2 Rule 2 of the Civil
Procedure Code cannot be made out except on proof of
the plaint in the previous suit the filing of which is said
to create the bar. As the plea is basically founded on
the identity of the cause of action in the two suits the
defence which raises the bar has necessarily to
establish the cause of action in the previous suit. The
cause of action would be the facts which the plaintiff had
then alleged to support the right to the relief that he
claimed.”
34. Reiterating the above principle, this Court in Virgo Industries
(Eng.) Private Limited v. Venturetech Solutions Private
18
Limited observed that:
“ The object behind the enactment of Order 2 Rules 2(2)
and (3) CPC is not far to seek. The Rule engrafts a
laudable principle that discourages/prohibits vexing the
defendant again and again by multiple suits except in a
18
(2013) 1 SCC 625
Civil Appeal Nos. 3964-3965 of 2009 Page 31 of 38
situation where one of the several reliefs, though
available to a plaintiff, may not have been claimed for a
good reason. A later suit for such relief is contemplated
only with the leave of the court which leave, naturally,
will be granted upon due satisfaction and for good and
sufficient reasons.
xx xx xx
The cardinal requirement for application of the
provisions contained in Order 2 Rules 2(2) and (3),
therefore, is that the cause of action in the later suit
must be the same as in the first suit.”
35. There is some merit in the contention of the appellant that the
impugned judgment is contradictory as it has affirmed the decree of
the trial court, which was upheld by the first appellate court,
accepting the plea of the respondent that the suit for mandatory
injunction filed by the appellant is not maintainable in view of the
bar under the provisions of the 1959 Act. Section 63 of the 1959 Act
states that the Joint Commissioner or the Deputy Commissioner
has the power to enquire into and decide the disputes and matters
concerning “ whether any property or money is a religious
endowment ” and “ whether any property or money is a specific
endowment ”. Any decision of the Joint or Deputy Commissioner in
terms of Section 63 of the 1959 Act can thereafter be challenged in
appeal before the Commissioner under Section 69 of the 1959 Act.
Pursuant to Section 70 of the 1959 Act, a party aggrieved by an
order passed by the Commissioner in respect of any matter
Civil Appeal Nos. 3964-3965 of 2009 Page 32 of 38
specified under Section 63 (including determination of a religious or
specific endowment) can be challenged before the court within 90
days of the receipt of the order. Further, a party aggrieved by a
decree of the court, under Section 70, can within 90 days from the
date of decree, appeal to the High Court. In the light of the
aforesaid, it can be urged that the suit filed by the respondent would
not be maintainable. The appellant did not raise this plea, possibly
because he had himself filed a civil suit. In fact, this argument would
also recoil on the appellant insofar as he has raised the plea of res
judicata and constructive res judicata/ Order II Rule 2 of the Code,
for the said pleas would not be available in case the civil court had
lacked subject matter jurisdiction. We would have normally allowed
the appeal preferred by the appellant in the present case and
relegated the appellant and the Temple to take recourse to the
remedy available under Section 63 of the 1959 Act. However, we
do not think it will be appropriate and proper to permit the appellant
to do so in the present case as it would be a futile and useless
exercise. It is crystal clear that there was a specific endowment of
the suit jewellery way back in 1894 and the challenge made by the
appellant has no legs to stand on and is totally devoid of merit. It is
difficult to reconcile the testimony of the appellant, in the suit filed
by him, that the suit jewellery was kept in the Kudavarai of the
Civil Appeal Nos. 3964-3965 of 2009 Page 33 of 38
respondent/Temple only for the purposes of safe-keeping, with the
fact that the suit jewellery was only used for the purposes of
adorning the idol/ deity during the Adipooram festival. The appellant
eventually backtracked from this position and has testified, in the
later suit filed by the respondent/Temple, to the effect that he is
unaware on “ what basis, the 26 items of suit ornaments (suit
jewellery) for what purpose are kept in the kudavarai…I don’t
directly know for what reason the suit jewels were kept in the room
in the plaintiff temple ”. In these circumstances, we do not want
another round of litigation which would serve no purpose. We also
have no hesitation in holding that the findings recorded above
would operate as res judicata even if the appellant is to initiate
proceedings under the 1959 Act.
36. We have noted the decree passed by the trial court in the suit filed
by the respondent whereby the relief of injunction was declined,
albeit observing that the appellant must open the locks and make
the suit jewellery available during the festival season. The cross
appeal filed by the respondent/Temple against rejection of its
prayer of injunction was dismissed by the first appellate court
agreeing with the observations made by the trial court regarding the
endowment of the suit jewellery. The High Court, in the impugned
order, has modified the aforesaid observations of the trial court and
Civil Appeal Nos. 3964-3965 of 2009 Page 34 of 38
has also directed the appellant to hand over the keys to the Joint
Commissioner, Tanjore who would perform the necessary
responsibility of handing over the jewels during the Adipooram
festival. We feel this decree or direction is beyond what was sought
by the respondent/ Temple in the plaint. This court in Bachhaj
19
Nahar v. Nilima Mandal and Another has clearly stipulated the
limits of a court to grant reliefs beyond the prayer and pleadings of
the parties and observed that:
“ It is fundamental that in a civil suit, relief to be granted
can be only with reference to the prayers made in the
pleadings. That apart, in civil suits, grant of relief is
circumscribed by various factors like court fee,
limitation, parties to the suits, as also grounds barring
relief, like res judicata, estoppel, acquiescence, non-
joinder of causes of action or parties, etc., which require
pleading and proof. Therefore, it would be hazardous to
hold that in a civil suit whatever be the relief that is
prayed, the court can on examination of facts grant any
relief as it thinks fit. In a suit for recovery of rupees one
lakh, the court cannot grant a decree for rupees ten
lakhs. In a suit for recovery possession of property ‘A’,
court cannot grant possession of property ‘B’. In a suit
praying for permanent injunction, court cannot grant a
relief of declaration or possession. The jurisdiction to
grant relief in a civil suit necessarily depends on the
pleadings, prayer, court fee paid, evidence let in, etc.”
37. In fact, to be fair to the High Court, the impugned judgment also
records that the decree for permanent injunction as prayed for is
granted to the respondent/Temple. Accordingly, we clarify and pass
19
(2008) 17 SCC 491
Civil Appeal Nos. 3964-3965 of 2009 Page 35 of 38
a decree restraining the appellant from interfering in any manner
with the right of the Temple authorities to take out the suit jewellery
from the Kudavarai whenever the occasion demands. In other
words, the appellant would cooperate with the request(s) made by
the Executive Officer and Trustees of the respondent/Temple to
open the Kudavarai doors and take out the suit jewellery from the
iron-safe whenever required.
38. Accordingly, the final order and directions issued by the trial court
th
in its decision dated 17 October 1996 in the respondent’s suit
(Original Suit No.56/96) and the first appellate court rejecting the
Temple’s prayer for injunction is set aside, and a decree of
injunction is passed in the aforesaid terms. The respondent/Temple
would be entitled to file an application for execution of the decree
of injunction in case of non-compliance and violation of the decree.
Further, and in case the appellant fails to honour the commitment
made and followed, that is, to open the doors of the Kudavarai and
the safe to take out the suit jewellery whenever required by the
Temple, it will be open to the respondent to take steps and initiate
proceedings under the 1959 Act or by way of a civil suit as permitted
in law, in which event the authorities/court would consider passing
an order directing the appellant to hand over the keys of the door of
the Kudavarai and the iron safe; As any failure to abide by the
Civil Appeal Nos. 3964-3965 of 2009 Page 36 of 38
convention and ‘the charge’, which forms the basis of this order,
would be a fresh or recurring cause of action, and the plea of
limitation or Order II Rule 2 of the Code would not apply.
39. It is to be noted in the impugned judgment that one of the items in
the suit jewellery (item no. 14) is missing, and a review of the
evidence on record reflects that it is with the appellant. The
appellant must surrender and give physical possession of the said
item to the respondent/ Temple within 30 days from the date of
pronouncement of this judgment. In case, the appellant does not
give possession of the said item, it would be open for the
respondent/ Temple to initiate civil as well as criminal proceedings
in accordance with law. In case any such proceeding is initiated,
the same would be examined on merits, though the findings
recorded herein would be binding. The appellant would have the
right to raise all defences as are available with him under law.
40. Accordingly, we dismiss the appeals and uphold the judgment of
the High Court affirming the decree of declaration passed by trial
court in Suit No. 56/96, which was also upheld by the first appellate
court, and thereby confirm existence of specific endowment known
as Adipooram Thiruvabaranam comprising of the 26 items of
jewellery mentioned in the plaint, as endowed in favour of Sri
Civil Appeal Nos. 3964-3965 of 2009 Page 37 of 38
Neelayadhakshi Amman, the presiding deity of the Temple. The
decree of injunction as passed by the High Court, it is clarified, is in
the terms of the prayer made in the suit (OS No.56/96) and also is
in terms of this judgment. There would be no order as to costs.
......................................J.
(AJAY RASTOGI)
......................................J.
(SANJIV KHANNA)
NEW DELHI;
JULY 11, 2022.
Civil Appeal Nos. 3964-3965 of 2009 Page 38 of 38