MANU/TN/0106/1987

Equivalent Citation: AIR1987Mad187, 1987-100-LW240, (1988)IMLJ8

IN THE HIGH COURT OF MADRAS

Second Appeal Nos. 42 and 43 of 1986
Decided On: 30.01.1987
Appellants: The Assistant Commissioner, Hindu Religiousand Charitable
Endowment, Salem and Ors.
Vs.
Respondent: Nattainai K.S. Ellappa Mudaliar and Ors.
Hon'ble Judges/Coram:
Srinivasan, J.
Counsels:
For Appellant/Petitioner/Plaintiff: S. Krishnaswami, Govt. Adv.
For Respondents/Defendant: G. Subramaniarn, Adv. for K. Jayaraman, Adv., S.
Sivasubramanian and O.V. Balaswami, Advs.
Case Note:

Constitution - protected temple - Article 26 of Constitution of India and

Order 1 Rule 8 of Code of Civil Procedure, 1908 - suit for declaration of
temple as denominational temple protected under Article 26 - common faith
of community be based on religion so as to render it as religious
denomination - plaintiff's community not to be treated as religious
denomination for not being based on religion - document adduced by
plaintiff which provided for turn wise management of temple insufficient to
prove that suit temple was established by their community - conditions for
claiming protection under Article 26 not proved - suit dismissed.

JUDGMENT
Srinivasan, J.
1. Defendants 1, 2 and 4 in O. S. No. 19 of 1984 on the file of the District Munsif,
Salem have preferred Second Appeal No. 42 of 1980 while the fifth defendant in the
same suit has preferred the other Second Appeal No. 43 of 1986.
2 . The suit was filed originally by two persons for a declaration that Arulmighu
Kannatfur Mariarnman temple situated in Tharamangalarn village is a denominational
temple entitled to the protection conferred by Art. 26 of the Constitution and that the
provisions contained in the Tamil Nadu Hindu Religious and Charitable Endowments
Act, 1959 could be applied only subject to the constitutional rights recognised by S.
107 of the said Act, for a direction to the Assistant Commissioner, H.R. & C.E.,
Salem-7 to remove the hundial installed by him illegally on 7-7-1982 by means of a
mandatory injunction and to restrain the defendants and their men from installing a

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hundial or directing the plaintiffs to instal a hundial or by appointing trustees or in
any other manner interfering with the possession and management of the temple by
the plaintiffs by means of a permanent injunction. During the pendency of the suit,
the second plaintiff died and plaintiffs 3 to 9 were added as his legal representatives.
Some time thereafter, the 10th plaintiff was added as a party on the footing that he
succeeded to the rights of the second plaintiff as the chosen representative of a
section of the community called Peria Katchi. According to the Plaint, Arulmigu
Karmanur Mariamman temple situated in Tharamangalam village, Omalur Taluk,
Salem District was established and managed by the members of religious
denomination of Sengutha Mudaliar residing a Tharamangalarn and the actual
management was attended to by the chosen representative of the two sections of the
community known as Periajatchi and Chinna Katchi, There was an agreement between
the members of the two Katchis in 1933 with regard to the terms of management and
the same was upheld in a Suit O. S. No. 780 of 1958 on the file of District Munsif,
Sankari at Salem. The judgment of the District Munsif was confirmed on appeal by
the Additional District Judge. Salem in A.S. No. 288 of 1959 and the Second Appeal
against the same, viz., S.A. No. 877 of 1900 was dismissed. It is stated in the plain
that the first plaintiff and the second plaintiff originally and after his death the 10th
plaintiff are chosen representatives of the two Katchis. In the year 1973, when the
Assistant Commissioner, H.R. & C.E., Salem issued a notice No. R.C. 11821/7,1/A3
dated 1-12-1973 inviting application for appointment of nonhereditary trustees for
the temple, the first plaintiff filed a revision petition before the Commissioner and the
same was allowed by order dt. 10-5-1975 on the ground that the temple is a
denominational temple. The first defendant ordered to instal a hundial in the year
1978 without giving notice to or calling for objections from the plaintiffs or any of
the Community people. The said order was challenged in W.P. No. 2969 of 1978 and
this Court quashed the order and directed the first defendant to give notice to the
plaintiffs before proceeding further. Subsequently, notice was issued and objections
were called for and overruling the plaintiffs' objections, the first defendant passed an
order on 30-7-1981, directing the plaintiffs to instal a hundial. The second defendant
viz., the Inspector of H.R. & C.E., Omalur attempted to instal a hundial even on 31-7-
1981 itself bringing the, same from Siddar Koil illegally. On intervention by the
Police, the second defendant took away the hundial without installing the same. The
plaintiffs have submitted that the temple is a denominational temple exclusively
belonging to and managed by the denomination of Senguntha Mudaliars of
Tharamangalarn and that the provisions of Art. 26 of the Constitution govern the said
temple. The plaint alleged further that after the receipt of the summons in the suit
and notice in the injunction petition, the first defendant appeared to have appointed
the third defendant as fit person to the temple by ante-dating the order. Even while
the suit was pending, the fourth defendant viz., the Commissioner, H.R. & C.E.,
Madras gave a direction to the first defendant to appoint trustees for the temple. In
pursuance of the same, the first defendant appointed the fifth defendant as the
trustee in utter disregard of the pending suit. The defendants had no Tight to
interfere with the possession and management of the plaintiffs, and the reliefs
referred to earlier are prayed for on that basis.
3 . Written statements were filed by the first defendant, third defendant, fifth
defendant and seventh defendant. Additional written statements were filed by the first
defendant and the same were adopted by second and the fourth defendants. The
common case of the defendants is that the allegation that the temple was established
by the religious denomination of Senguntha Mudaliars is false and that the suit
temple does not belong to any particular religious denomination. Article 26 of the
Constitution is not applicable to the suit temple. The allegation that the management

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of the temple has been with the chosen representatives of the two Katchis of the
Senguntha Mudaliar community is not true. In one of the additional written
statements filed by the first defendant it is stated that applications were called for
only from the Senguntha Mudaliar community of Tharamangalam and the fifth
defendant who belonged to the said community was appointed as trustee. As, such,
the rule laid down in S. 51 of the Tamil Nadu Hindu Religious and Charitable
Endowments Act is fulfilled. In the additional written statement filed by the fifth
defendant it is stated that the allegation that Senguntha Mudaliar community of
Tharamangalarn had common faith in Goddess Kannanur Mariyamman is false and
that it is false to allege that the suit temple was established by the said community
for purpose of worship of their community people. In the said additional written
statement it is also stated that the Senguntha Mudaliar community have common faith
in "Periyandachi" situated opposite to Panchayat Union Office, Omalur Road, where
there are two pathis for their exclusive worship. The defendants also contested the
maintainability of the suit in view of the provisions of S. 108 of the Tamil Nadu Hindu
Religious and Charitable Endowments Act.
4 . On these pleading, the trial Court framed issues with reference to the
maintainability of the suit and the bar, under S. 108 of the Hindu Religious and
Charitable Endowments Act and the entitlement of the plaintiffs to the reliefs prayed
for by them. The trial Court also framed additional issue on 23-4-1984 as to whether
there was proper notice under S. 80, Civil P.C. The trial Court held that the suit was
not maintainable as the rights put forward by the plaintiffs were those of Senguntha
Mudaliar community of Tharamangalam and the community was not before the Court.
It was also held that there was no notice under S. 80, Civil P.C. and consequently,
the suit was not maintainable on that ground too. The trial Court held that the
plaintiffs did not prove that Senguntha Mudaliar community was a religious
denomination and that the temple was established and maintained by that
community. The trial Court also upheld the plea of the bar of suit by virtue of the
provisions of S. 108 of the Hindu Religious and Charitable Endowments Act. Based on
those findings, the trial Court dismissed the suit.
5. Plaintiffs 1 and 3 to 10 preferred an appeal to the District Judge, Salem. When the
appeal was pending, the plaintiffs filed I.A. No. 277 of 1984 praying for leave to file
the suit in a representative capacity under O. 1, R. 8, Civil P.C. The said application
was dismissed on 20-11-1985 on the ground that the allowing of the petition would
change the nature of the suit which would put the clock back so as to necessitate a
retrial. After the main appeal was heard, the learned Judge allowed the same,
reversing the conclusions of the trial Court. The appellate Judge took the view that
Ex. A-6 dt. 1-7-1981 by which objections were filed by plaintiffs 1 and 2 before the
Assistant Commissioner, Hindu Religious and Charitable Endowments, Salem in reply
to his notice relating to the installation of hundial would serve the purpose of a
notice under S. 80, Civil P.C. and there was no necessity for a separate notice, and
therefore, the suit was maintainable. As regards the, representative capacity of the
plaintiffs, the learned Judge held that the suit was not filed in a representative
capacity and there was no necessity for the plaintiffs to do so as they were claiming
rights as elected representatives of the community and the dismissal of the suit as
not maintainable was erroneous. Thirdly, the learned Judge held that the community
of Senguntha Mudaliars of Tharamangalam was a religious denomination having
common faith in the temple of Karmanur Mariamman and they were entitled to
protection under Art. 26 of the Constitution. The learned Judge further held that the
defendants were not entitled to instal a hundial or interfere with the management and
possession of the plaintiffs. Consequently, the suit was decreed by the learned

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appellate Judge as prayed for by the plaintiffs.
6. In these second appeals, Sri. O. V. Balaswami appearing for the appellants in S.A.
No. 43 of 1986 and the Additional Government Pleader appearing for the appellants
in S.A. No. 42 of 1986 made the following submissions : -
(1) The suit is not maintainable as there was no notice under S. 80, Civil P.C.
(2) The suit having been filed by individuals putting forward the rights of the
community as such, cannot be maintained without complying with the
provisions of O.1, R. 8, Civil P.C. As admittedly leave was not obtained under
O. 1, R. 8, Civil P.C. in the trial court and the application therefore was
dismissed by the lower appellate Court, the suit has to be dismissed.
(3) The Senguntha Mudaliar community is not a religious denomination
within the meaning of Art. 26 of the Constitution.
(4) The plaintiffs have not proved that the suit temple was established and
administered by the Senguntha Mudaliar Community.
7 . As regards the objection under S. 80, Civil P.C., learned counsel for the
respondents drew my attention to an order passed by the District Munsif, Mettur
before whom the suit was originally filed as O.S. No. 750 of 1981. An application I.A.
No. 627 of 1981 was filed before the District Munsif, Mettur for dispensing with the
issue of notice under S. 80, Civil P.C. and by order dt..1-8-1981 the learned District
Munsif dispensed with the said notice by virtue of the power conferred by S. 80(2),
Civil P.C. Under the provisions of S. 80(2), Civil P.C., the suit may be instituted with
the leave of the Court without serving any notice as required by sub-sec. (1) of S.
80, if an urgent or immediate relief against the Government or any Public Officer is
sought. The subsection prevents a Court from granting any relief in the suit, whether
interim or otherwise, without giving to the Government or Public Officer, as the case
may be, a reasonable opportunity of showing cause in respect of the relief prayed for
in the suit. In the present case, the notice has been dispensed with on 3-8-1981. It is
rather unfortunate that neither the District Munsif, Salem who tried the suit ultimately
nor the Second Additional District Judge of Salem, who heard the appeal, took note
of the order of the District Munsif, Mettur dispensing with issue of notice. The
counsel' who appeared in the proceedings had, obviously not brought the said order
to the notice of the two Judges. After the learned counsel for the respondents
referred to the order dispensing with the issue of notice, learned counsel for the
appellants contended that the said order was a nullity inasmuch as there was no
urgency at the time of the filing of the suit and there is no record to show whether
any urgent interim order was prayed for by the plaintiffs. I cannot accept this
contention. The defendants never challenged the validity of the order dt. 3-8-1981
dispensing with the issue of notice. In none of the written statements or the
additional written statements, the plea of non-maintainability of the suit for want of
notice under S. 80, Civil P.C. was taken. That is a good reason to infer that the
defendants were aware of the order dispensing with the issue of notice Even
otherwise, the presumption under S. 114(e) of the Evidence Act that judicial and
official acts have been regularly performed should apply and nothing has been placed
before me to dislodge that presumption. Hence, I hold that the plaintiffs cannot be
non-suited for want of notice under. S. 80, Civil P.C.
8. Turning to the second point urged by the appellants, a reading of the plaint makes
out that the right put forward therein is that of the community and not any individual

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right of the plaintiffs. In para III of the plaint it is alleged that the temple was
established and managed by the members of the religious denomination of
Senguntha Mudaliar residing at Tharamangalam and the actual management of the
temple was attended to by the chosen representatives of the two sections of the
community known as Peria Katchi and Chinna Katchi. In Para IV, the denominational
character of the institution is reiterated. In Para VII it is stated that the temple is a
denominational temple exclusively belonging to and managed by the denomination of
Senguntha Mudaliar community of Thararnangalam. In the same para the following
averments are found : -
"So it is clear, neither the defendants nor any of the authorities are entitled
to interfere in any manner under the guise of regulating the administration
either by directing instal Hundial or by appointing trustee. The plaintiffs
submit that the temple as already stated is being exclusively belonging to
and managed by the Mudaliar Community. The entire funds are collected only
from the Mudaliar community of Tharamangalarn and not even a single pie is
ever collected or donated or contributed from any other community The
defendants now openly proclaim that they will install the Hundial even if it is
contrary to law at any cost and appoint trustee for the temple so as to
interfere with the management of the Mudaliar Community."
In para VII(a), it is alleged that the appointment of the third defendant as fit person
has transgressed the rights of the management of the community as guaranteed
under Art. 20 of the Constitution of India read with S. 107 of the Hindu Religious and
Charitable Endowments Act. Again, the main relief prayed is for declaring the temple
as a denominational temple entitled to the, protection under Art. 26 of the
Constitution and the other reliefs are only prayed as consequential reliefs. Thus, it is
clear that the plaintiffs are putting forward the rights of the community as such and
claiming themselves to be the chosen representatives of the two sections of the
community.
9 . Order 1, Rule 8, Code of Civil Procedure enables one or more persons to sue on
behalf of numerous persons having the same interest with the permission of the
Court. If an individual seeks to advance the claim of it group of persons, he is
enabled to do so, by virtue of the provisions of O. 1, R. 8, Civil P.C., but the
procedure prescribed therein should be strictly followed. The benefit of the rule is
available only to persons who fulfil the requirements thereof. It is well known that
there is a clear legislative concern in the entire Code indicating the Court should
make judicial orders only after hearing the persons likely to be affected by any
decision in any cause. If a person is permitted to sue as a representative of another,
or a group of persons, it is a matter of far reaching effect as it is likely to affect the
interests of those who may not participate at the hearing of the suit. Such persons
are obviously entitled to put forth their objections to the filing of the suit and to the
capacity of the representative who seeks either to be the plaintiff or defendant and
even to the merits of the cause. All that will be possible only if the party sought to be
represented is given an opportunity to raise objection, if any. It is only in accordance
with the said salutary principle, the procedure in O. 1, R. 8, Civil P.C. has been
prescribed. The object of the rule is to avoid unnecessary tedium and expense of
litigation and to give a binding force to the decision which may be ultimately passed
in the suit. A person cannot seek to advance the claims of a group of persons or
community without adopting the procedure under O. 1, R. 8, Civil P.C., if the relief is
prayed for only on the basis of the rights of the community as such. It is no doubt
true that O.1, R. 8, Civil P.C. presupposes that each one of the numerous persons by

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himself has a right of suit. If a person himself has no such right to sue, he cannot be
permitted to sue on behalf of toe others who have a fight. But, the distinction has to
be maintained between cases where the individual puts forward a right which he has
acquired as a member of a community and cases where the right of the community is
put forward in the suit. If it is the former, the individual is not "debarred from
maintaining the suit in. his own right in respect of a wrong done to him even though
the act complained of may also be injurious to some other persons having the same
right. If it is the latter, the procedure under O. 11 R 8 Civil P.C. has to be followed
and without doing so, no relief could be granted to the individual concerned.
10. Learned counsel for the respondents invited my attention to the decision of the
Privy Council in Bhagwanpuri v. Secretary of State MANU/PR/0038/1930where Sir
Lancelot Sanderson observed that Order 1, Rule 8 contains provisions which enable
the Court to grant the permission therein mentioned in a case which comes within the
scope of the rule. On the facts of that case, the Privy Council held that the plaintiff in
that suit had no necessity to have recourse to the rule. Apart from the observation
referred to above, there is nothing in that decision which helps the respondents in
this case.
11. The next decision relied upon is that of the Privy Council in Kumaravelu Chettiar
v. Ramaswami Ayyar MANU/PR/0030/1933. In that case it was held that the decision
in a former suit will operate as res judicata in a subsequent suit filed under O. 1, R.
8, Civil P.C. unless the formalities prescribed by the rule were complied within the
former suit. The only exception to the same was pointed out to be a case where the
former suit having been litigated bona fide on behalf of the plaintiff and others with a
common right, the omission to comply with the rule had been inadvertent, and no
injury there from was sustained by the plaintiff in the second suit. On the facts of the
case, it was held that the former suit was filed without the permission of the Court
and it as not instituted or conducted as a representative suit and, therefore, no
question of res judicata arose in the second suit. The Observation of the Privy Council
on which learned counsel places reliance is as follows,....."
".......... It is an enabling rule of convenience prescribing the conditions upon
which such persons when not made parties to a suit may still be bound by
the proceedings therein. For the section to apply the absent persons must be
numerous; they must have the same interest in the suit which, so far as it is
representative, must be brought or prosecuted with the permission of the
Court. On such permission being given it becomes the imperative duty of the
Court to direct notice to be given to the absent parties in such of the ways
prescribed as the Court in each case may require; while liberty is reserved to
any represented person to apply to be made a party to the suit."
I am unable to understand as to how the aforesaid observation helps the learned
counsel for the respondents.
1 2 . The next decision that is relied upon is that of the Calcutta High Court in
Taraprasanna Ganguly v. Naresh Chandra Chakrabarthy, MANU/WB/0004/1933 :
AIR1933Cal329 . The question which arose before the Division Bench of the Calcutta
High Court in that case was whether a decree obtained against the managing
committee of an unincorporated association, viz., a school, with a direction that the
members of the managing committee were not personally liable could be construed to
be a decree against them in their representative capacity so as to bind the school
even after a change in the personnel of the managing committee after the decree. It

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was held on a construction of the decree that it was passed against the members of
the managing committee in their representative capacity and as such it could be
executed against the subsequent committee. It was held by the Bench that the
provision of O. 1, R. 8, Civil P.C. did not have any application to the case as all the
members of the managing committee at the date of the suit were sued and that the
managing committee stood in law for the school and the decree against them was
binding on the school. That decision cannot apply to the facts of the present case.
13. Learned Counsel relies upon the decision of the Patna High Court in Ramghulam
v. Ramkhelawan, MANU/BH/0242/1936 : AIR1937Pat481 , wherein a single Judge of
that Court held that O. 1, R. 8, Civil P.C. is an enabling section entitling one party to
represent many having a common cause of action, but it does not force one to
represent many if his action is maintainable without the joinder of other, persons.
That case related to the rights of the public to use a certain well and a right of way,
over some land appurtenant to the well. The suit was instituted without complying
with the provisions of O. 1, R. 8, Civil P.C. and the plaintiffs asserted their rights to
the use of the well and the right of way. The learned Judge held that the suit was
maintainable and the plaintiffs were entitled to get a decree on proof of their rights.
The learned Judge observed as follows : -
"There is no doubt with regard to the facts of this case in spite of the loose
pleadings and it is quite clear that the plaintiff is one of the limited members
who enjoys the use of a certain well. The user of that well has been
obstructed by the action of the defendants, and the short question is whether
an action in those circumstances would lie at the instance of the plaintiff
alone. O. 1, R. 8, Civil P.C., has nothing to do with the matter at all. O. 1, R.
8, as has been pointed out by a number of decisions, is an enabling section
which entities one party to represent many who have a common cause of
action; but it does not force one to represent many if his action is
maintainable without the joinder of other persons."
In fact, the learned Judge has himself referred to the types of cases where an action
by an individual will not lie. After referring to the decision of the Privy Council in
Manzur Hassan v. Muhammed Zaman, MANU/PR/0008/1924 and some other decisions
of the Bombay High Court and Calcutta High Court, the learned Judge observes thus
:-
"............ In my judgment the law in India is precisely the same in this
regard as it is in England and it does not depend on the technical question of
whether in the circumstances of the case an indictment could be maintained.
Technical objections of that kind do not obtain in India. But the main
principle upon which this question is to be discussed and upon which the
whole matter rests is that where all members of the public have suffered
inconvenience or damage, an action by an individual will not lie excepting as
indicated by S. 91, Civil P.C."
Far from supporting the contentions of learned counsel for the respondents this
decision of the Patna High court can be made use of by the defendants in this case.
14. Learned counsel placed strong, reliance on the decision of a Full Bench of Lahore
High Court in Masjit Shahid v. Shiromani Gurdwara Purbandak Committee, Amritsar,
AIR 1938 Lah 369. The Full Bench took the view that the omission to follow the
procedure under 0. 1, R. 8, Code of Civil Procedure was only a technical irregularity

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which caused no prejudice to the concerned parties. That decision in effect follows
the decision of the Privy Council in Kumaravellu Chettiar v. Ramaswami Ayyar,
MANU/PR/0030/1933 already referred to. That turned on the facts of that case and
will not have any applicability to the case on hand.
15. Learned counsel for the respondents draws my attention to the decision of the
Calcutta Bench in Surendra Kumar Basu v. District Board, Nadia,
MANU/WB/0207/1941 : AIR1942Cal360 . That was a case where a suit was filed for
removal of an alleged encroachment made by the District Board, Nadia, upon a public
thoroughfare in front of the plaintiff's premises. The plaintiff alleged that his rights as
a rate-payer and as a member of the public were infringed by the encroachment by
the District Board which deprived him of the user of the full width of the public road
Though the encroachment was found by the subordinate Judge, he dismissed the suit
on the ground that it was not maintainable at the instance of the plaintiff without
proof of special damage. The subordinate Judge further expressed his opinion that
the proper course for the plaintiff was to bring a representative suit in conformity
with the provisions of O, 1, R. 8, Civil P.C., thus obviating the necessity of proving
special damage. Though the decree was affirmed by the Bench on appeal, B. K.
Mukherjea, J. who was a member of the Bench disagreed with the view of the
subordinate Judge that if a suit is filed, under the provisions of O. 1, R. 8, Civil P.C.,
there would be no necessity to prove special damage. His Lordship observed that if it
is necessary to prove special damage in a suit by private individuals, the necessity is
not obviated by bringing the suit under O. 1, R. 8, Civil P.C. While dealing with that
aspect of the matter, the learned Judge observes that O. 1, R. 8, Civil P.C. is a purely
enabling section entitling under certain circumstances some of the interested persons
to bring a suit on behalf of all and that it does not force one to represent many if his
action is maintainable without the joinder of those persons. The said observations
made in that case will not take the respondents far.
16. Learned counsel also made reference to the Full Bench decision of, this Court in
Kodia Gounder v. Valandi Gounder, MANU/TN/0139/1955 : AIR1955Mad281 ,
wherein the excitability of a decree obtained in a representative suit filed under O. 1,
R. 8, Civil P.C. against persons who are not economic parties to (he suit was
considered. The Full Bench answered the question in the negative and held that a
decree obtained in a representative suit cannot be executed personally against
persons who were not economic parties to the same. The full Bench made some
general observations with regard to the object of the rule in the following terms:-
"The object for which this provision is enacted is really to facilitate the
decision of questions in which a large body of persons are interested without
recourse to the ordinary procedure. In cases where the common right or
interest of a community or members of an association or large sections is
involved there will be insuperable practical difficulty in the institution of suits
under the ordinary procedure, where each individual has to maintain an
action by a separate suit. To avoid numerous suits being filed for decision of
a common question,, O. 1, R. 8, has come to be enacted. The nature of the
claim whether it is a suit for a declaration of a right, or an injunction or an
action for money on contract or on tort is not very material in considering
whether a suit could be filed under the simplified procedure of 0. 1, R. 8.
But, as already observed, it is the existence of a sufficient community of
interest among the persons on whose behalf or against whom the suit is
instituted that should be the governing factor in deciding as to whether the
procedure provided under O. 1, R. 8, could properly be, adopted or not."

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These general observations will not help the respondents in the present case. On the
other, hand, they make it clear that the object of the rule is to avoid numerous suits
being filed for the same relief.
17. The last of the decisions relied upon, by learned counsel for the respondents is
that of Andhra Pradesh High Court in B. Venkayya v. L. Narasayya, AIR 1957 Andh Pra
975, wherein Viswanatha Sastri, J. held that a suit by a villager for a declaration for
his easementary right to a. way over the lands of the defendants and for a mandatory
injunction directing the defendants to remove the obstruction put up by them could
be maintained dehors; the provision of O. 1, R. 8, Civil P.C. The learned Judge held
that the injury alleged in the case was one which was individual to the plaintiff and
he could bring a suit for the removal of the obstruction and for injunction restraining
the defendants from repeating it and the fact that others might have suffered a
similar injury and might have joined the plaintiff in a representative suit with the
sanction of the Court under O. 1, R. 8, Civil P.C. did not stand in the way of the
plaintiff himself instituting a suit for redressing the wrong. While holding so, the
learned Judge observed that O. 1, R. 8 was merely permissive and unless the plaintiff
has an individual right of his own to vindicate, the mere grant of permission by the
Court under O. 1, R. 8, Civil P.C. will not clothe him with a right of suit. I am afraid
that this decision cannot help the respondents.
18. It is no doubt true that the plaintiffs have alleged in the plaint in more than one,
place that they are the chosen representatives of the two sections of the community.
But there is absolutely no record produced in the case in support of the said claim.
Even in the deposition of the first plaintiff, who is the only witness examined on the
side of the plaintiffs, there is nothing to show as to when and how the plaintiffs were
chosen by the members of the community to be their representatives. Even though
the first plaintiff asserts in his deposition that there are accounts for the temple and
the community, he has not chosen to produce the same before Court to prove that he
was authorised to represent the community in the management of the temple. Nor
has he produced any record to show that he has been authorised by the community
to institute the present suit.
1 9 . Learned counsel for the appellants invites my attention to the decision of
Ratnam, J. in H. R. and C.E. rep. by its Commissioner, Madras-34 v. N. Ramakrishna
Pillai, (1986) 99 Mad LW 295 wherein the relief of declaration that the temple is a
private denominational trust for the benefit of the plaintiff and the members of the
Nair Community was refused on the ground that the suit was instituted by the
plaintiff in his individual capacity and not in a representative capacity. That case
arose out of a suit filed under S. 70 of the Tamil Nadu Hindu Religious and Charitable
Endowments Act for setting aside an order passed by the Deputy Commissioner,
Hindu Religious and Charitable Endowments Department, Tirtmelveli II and confirmed
by the, Commissioner, Hindu Religious and Charitable Endowments, Madras declaring
that Chembaka Koothan Kandan Sastha Temple in Sasthamangalam, Kalkulam village,
Kanyakumari District was a public temple. The trial Court granted the reliefs prayed
for by the plaintiff. But, on appeal, Ratnam, J. deleted the declaration of the
denominational character of the temple from the decree while maintaining the decree
relating to the setting aside of the order passed by the Commissioner. While dealing
with the question of the denominational character of the temple, the learned Judge
observed as follows : -
"A reading of the plaint clearly makes out that the complaint voiced therein
is, in relation to the character of the temple. No doubt, it is stated in

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 paragraph 1 of the plaint that the ancestors of the plaintiff founded the,
Sastha temple for the benefit of their family as Well as the members of their
community. Relief (A) in the plaint also refers to the declaration of rights as
a private denominational trust. However, the cause of action for the suit is
stated to be the passing of the order, by the Commissioner on appeal on 21st
Sept., 1977 and the receipt thereof on 27th Nov., 1977. Obviously therefore,
even according to the plaintiff, he was aggrieved by the order passed by the
Commissioner affirming the order of the Deputy Commissioner holding that
the temple in question is a public temple. It has also to be remembered that
the proceedings originated out of an application under S. 63(a) of the Act
filed by the second defendant in the suit. Under S. 63(a) of the Act, the
power of the Deputy Commissioner is confined to a decision on the question
whether an institution is a religious institution. No power is conferred under
S. 63 on the Deputy Commissioner to go into the question whether the
temple is a denominational one or not. That there is no such power is also
laid down in the decision in R. Chinna Bhoyan v. Commr., H.R. and C.E.,
Madras, (1975) 2 Mad U 294, relied on by the learned counsel for the
contesting respondents. Therefore, the adjudication of the Deputy
Commissioner on an application under S. 63(a) of the Act cannot be read as
one relating to the rights of the Nair community as a religious denomination.
Under S. 69 of the Act, a right of appeal to the Commissioner is conferred on
a person aggrieved by an order of the Deputy Commissioner. Under S. 70(l)
of the Act, any party aggrieved by an order of the Commissioner, is enabled
to institute a suit against that order in a Civil Court. In this case, Neelakanta
Pillai was impleaded as a party to the proceedings in O.A. 7 of 1975 only in
his individual capacity and the plaintiff in. O. S. 18 of 1978, Sub Court,
Padmanabhapuram was also not impleaded in a representative capacity on
behalf of the religious denomination. Thus, taking into account the manner in
which the dispute had originated under the relevant statutory provisions
referred to earlier, it seems to me that the agitation of rights of a religious
denomination could not have been done at all within the scope of a petition
under S. 63(a), of the Act, or the appeal there from or even in a suit
thereafter under S. 70 of the Act. Therefore, the question of determination of
rights of a religious denomination cannot arise at all. In view of this, it is not
necessary to consider the question whether a common faith among the
members of the Nair community had been established to enable them to
claim the benefits as a religious denomination. Those rights, if any, have to
be agitated and adjudicated in other appropriate proceedings and not here
and that matter is left open."
20. The principle enunciated by Ratnam, J. in the aforesaid decision will clearly apply
to the present case. I respectfully adopt the said principle and hold that the suit from
out of which these second appeals arise is not maintainable inasmuch as the plaintiffs
have failed to follow the procedure prescribed in O. 1, R. 8, Civil P.C.
21. I have to refer to the contention urged by learned counsel for the respondents
that the objection as to the maintainability of the suit for want of compliance with the
provisions of O. 1, R. 8, Civil P.C. was not taken specifically in the written statement
and that there was no issue regarding the same in the trial Court. Though there is no
specific issue framed by the trial Court, I find that the matter has been argued before
the trial Judge and it has been dealt with in Para 21 of his judgment. He has given a
categorical finding that the suit is not maintainable as the community which claims
the relief is not before the Court. The objection under O. 1, R. 8, Civil P.C. has also

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been considered by the learned appellate Judge, though he comes to a different
conclusion from that of the trial Judge. It is too late in the day to shut out the said
objection on the ground that there was no specific pleading in the written statement.
As pointed out earlier, R. 8 of O. 1, Civil P.C. constitutes a glaring exception to the
general rule -and if it is not strictly complied with, it may result in a flagrant
departure from the salutary practice of not proceeding with an 'adjudication in the
absence of the parties affected thereby. The foundation of O. 1, R. 8, Civil P.C. lies in
a principle which transcends the personal or parochial nature of the combatants who
are arrayed as parties to the suit. It affects the rights of the persons not present
before the Court. Hence, a duty is cast on the Court itself to follow meticulously the
procedure prescribed by O. 1, R. 8, Civil P.C. and it is immaterial whether the
defendants raised the objection in the written statement or not. I do not see any
substance in the objection of learned counsel for the respondents that the trial Court
ought not to have considered the matter in the absence of a pleading and an issue,
Hence, the suit has to be dismissed on that ground.
2 2 . I will now proceed to consider the question whether Senguntha Mudaliars of
Tharamangalam form a religious denomination within the meaning of Art. 26 of the
Constitution. Before referring to the evidence available on record with reference to
this question, I am obliged to point out that very often the real question which arises
for consideration is not understood or considered by the subordinate judiciary or the
persons who conduct the cases before the subordinate Courts. In most 6f the cases, it
is taken for granted that if a temple is owned and administered by a community the
latter could be treated as a religious denomination automatically and the only
question with reference to which evidence is let in by the parties is whether the
community established and maintained the temple concerned. And if that question is
answered in the affirmative, the Court comes to the conclusion that such temple is a
denominational temple. It must also be noted that a denominational temple is
confused with a private temple and the tests which are laid down for deciding the
character of the temple as private or public' are applied while determining the
denominational character thereof. The fact that a temple would become a
denominational: temple only if it is established and maintained by a religious
denomination or any section thereof is forgotten in many of the cases. That has led to
some wrong decisions which create an impression in the minds of litigants that once
the ownership and administration of a temple are proved to be resting with a
particular community or a section thereof, that would be sufficient to declare. it to be
a denominational temple. In fact, the trial Court has in Para 26 of its judgment
framed the following question which proves that the real: controversy has not been
understood by it :
"The question, therefore, is whether it is a private temple, that too a
denominational temple or a public temple. If it is latter as argued by the
defendants, the Act is applicable. In the instant case that position of whether
it is a public temple at all is the main question."
The above extract from the judgment of the trial court illustrates the misconception
prevailing among many of the members of the subordinate judiciary.
23. The lower appellate Court framed point No. 2 for determination as follows : -
"Whether the suit temple is a denominational temple exclusively belonging to
Senguntha Mudaliar community of Tharamangalam?"

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Here again, the two independent questions whether Senguntha Mudaliar community
of Tharamangalam is a religious denomination and whether the suit temple belongs
exclusively to that community have been telescoped into one which proves that even
the learned Second Additional District Judge Salem did not have a correct idea of the
legal position. It is seen in Para 16 of his judgment that he refers to the argument of
learned counsel for the plaintiffs to the effect that they had never disputed the fact
that the temple was a religious temple, but that their grievance was that it was
managed and administered by the Senguntha Mudaliars of Tharamangalam for several
decades and therefore, the authorities of Hindu Religious and Charitable Endowments
had no right to interfere with the administration of the temple by the community. This
again shows that the counsel for the plaintiffs who appeared before the learned
Additional District Judge was under the impression that the only basic relevant factor
to be taken into account was the ownership of the temple by the community. It is no
doubt true that an argument had been advanced before the learned Additional District
Judge that the community of Senguntha Mudaliars of Tharamangalarn are
worshipping a peculiar idol known by the peculiar name Kannanoor Mariamman
which was a clear indication to show that they had common faith in the said idol. In
spite of the fact that the learned Additional District Judge refers to the definition of
'religious denomination' found in the decision of the Supreme Court in the Shirur
Mutt case (The Commr., Hindu Religious Endowments, Madras v. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt, MANU/SC/0136/1954 : [1954]1SCR1005 the
learned Judge did not consider the issue in the proper perspective. Of course, he
cannot be blamed, therefore, when it is seen that some reported decisions of this
Court create an impression that proof of establishment and maintenance of temples
by a community or a section thereof would be sufficient to support a finding that
such temples are denominational temples.
24. It is needless to point out that the Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959, or any of its predecessors did not use or define the term
'denominational temple' as such. Section 6(20) of the Act of 1959 defines a 'temple'
as a place by whatever designation known used as a place of public religious worship
and dedicated to or for the benefit of, or used as of right by, the Hindu community or
any section thereof, as a place of public religious worship. Section 107 provides that
"Nothing contained in this Act shall, save as otherwise provided in S. 106 and in cl.
(2) of Art. 25 of the Constitution, be deemed to confer any power or impose any duty
in contravention of the rights conferred on any religious denomination or any section
thereof by Art. 26 of the Constitution". Section 106 provides for removal of
discrimination in the distribution of prasadams and theerthams in any religious
institution on grounds only of caste, sex, place of birth or any of them. Section 51 of
the Act provides that "in making appointments of trustees under S. 47 or S. 49, the
Commissioner or the Area Committee, as the case may be, shall have due regard to
the claims of persons belonging to the religious denomination for whose benefit the
institution concerned is chiefly intended or maintained." It is seen that S. 107 deals
with the rights of any religious denomination or any section thereof as conferred by
Art. 26 of the Constitution which means that the section relates to religious
institutions established and maintained by a religious denomination or any section
thereof. But, S. 51 of the Act would apply even to cases where the religious
institutions were not established or maintained by the religious denomination or
section thereof but to such religious institutions which are intended or maintained for
the benefit of persons belonging to any religious denomination. Apart from Ss. 51
and 107 there is no reference in the Act to a religious denomination. If the members
of a religious denomination claim that the religious institution in question has been
established and maintained by them, their rights are governed by Art. 26 of the

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Constitution and the same are left untouched by the Tamil Nadu Hindu Religious and
Charitable Endowments Act on account of S. 107 thereof. Hence, the first question to
be considered invariably in every case in which a temple is claimed to be a
denominational temple is whether that community is a religious denomination or any
section thereof. Though there is no definition of the term 'religious denomination'
either in the Act or i n the Constitution, it has been judicially interpreted in
unmistakable terms by the Supreme Court of India in the famous Shirur Mutt case
Commr., Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of
Sri Shirur Mutt, MANU/SC/0136/1954 : [1954]1SCR1005 . Mukherjea, J observed as
follows : -
"As, regards Art. 26, the first question is, what is the precise meaning or
connotation of the expression "religious denomination" and whether a Math
could come within this expression. The word "denomination" has been
defined in the Oxford Dictionary to mean "a collection of individuals classed
together under the same name; a religious sect or body having a common
faith and organisation and designated by a instinctive name". It is well
known that the practice of setting up Maths as centres of theological teaching
was started by Shri Sankaracharya and was follow6d by various teachers
since then. After Sankara, came a galaxy of religious teachers and
philosophers who founded the different sects and sub-sects of the Hindu
religion that we find in India at the present day.
Each one of such sects or sub-sects can certainly be called a religious
denomination, as it is designated by a distinctive name, in many cases it is
the name of the founder and has it common faith and common spiritual
organization. The followers of Ramanuja, who are known by the name of Shri
Vaishnabas, undoubtedly constitute a religious denomination; and so do the
followers of Madhwacharya and other religious teachers. It is a fact well
established by tradition that the Udipi Maths were founded by Madhwacharya
himself and the trustees and the beneficiaries of these Maths profess to be
followers of that teacher. The High Court has found that the Math in question
is in charge of the Sivalli Brahmins who constitute a section of the followers
of Madhwacharya. As Art. 26 contemplates not merely a religious
denomination but also a section thereof, the Math or the spiritual fraternity
represented by it can legitimately come within the purview of this Article."
25. While the decision referred to above was rendered with reference to a Mutt, the
question arose before the Supreme Court with reference to a temple in
Venkataramana Devaru v. State of Mysore, MANU/SC/0026/1957 : [1958]1SCR895 .
Venkatarama Aiyar, J. dealing with the question whether the temple dedicated to Sri
Venkataramana in the village of Mannampady, was a denominational temple, referred
to the relevant aspects of the evidence which would help the Court to conclude that
the temple in question is a denominational one in Para 15 of the judgment, which
reads thus : -
"The next question is whether the suit temple is a denominational institution.
But the Courts below have concurrently held that at the inception the temple
was founded for the benefit of Gowda Saraswath Brahmins, but the
Subordinate Judge held that as in course of time public endowments came to
be made to the temple and all classes of Hindus were taking part freely in
worship therein it might be presumed that they did so as a matter of right,
and that, therefore, the temple must be held to have become dedicated to the

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 Hindu public generally. The learned Judges of the High Court, however, came
to a different conclusion. They followed the decision in Davaraja Shenoy v.
State of Madras, MANU/TN/0098/1953 : AIR1953Mad149 , and held that the
temple was a denominational one. The learned Solicitor-General attacks the
correctness of this finding on two grounds. He firstly contends that even
though the temple might have been dedicated to the Gowda Saraswath
Brahmins, that would make it only a communal and not a denominational
institution, unless it was established that there were religious tenets and
practices special to the community, and that that had not been done. Now,
the facts found are that the members of this community migrated from
Gowda Dess first to the Goa region and then to the south, that they carried
with them their idols, and that when they were first settled in Moolky, a
temple was founded and these idols were installed therein. We are therefore
concerned with the Gowda Saraswath Brahmins not as a section of
community but as a sect associated with the foundation and maintenance of
the Sri Venkataramana Temple, in other words, not as a mere denomination,
but as a religious denomination. From the evidence of P.W. 1, it appears that
the Gowda Saraswath Brahmins have three Gurus, that these in Moolky Petah
are followers of the head of the Kashi Mutt, and that is he that performs
some of the important ceremonies in the temple. Ex. A is a document of the
year 182627. That shows that the head of the Kashi Mutt settled the disputes
among the Archakas, and that they agree to do the puja tinder his orders.
The uncontradicted evidence of P.W. 1 also shows that during certain
religious ceremonies, persons other than Gowda Saraswath Brahmins have
been wholly excluded. This evidence leads irresistibly to the conclusion that
the temple is a denominational one, as contended for by the appellant."
26. The Supreme Court had occasion to reiterate its view on the interpretation of the
words "religious denomination" in Acharya Jagdishwaranand Avadhuta v. Commr. of
Police, Calcutta, MANU/SC/0050/1983 : 1983CriL J1872 . The question which arose
for consideration in that case was whether Ananda Marga could be accepted as a
religious denomination. While answering the question in the affirmative, the Court
made a reference to the test laid down by Mukherjea, J. In the Shirur Mutt case
MANU/SC/0136/1954 : [1954]1SCR1005 referred to earlier and observed as follows
:-
"This test has been followed in the Durgah Committee, Ajmer v. Syed
Hussain Ali, MANU/SC/0063/1961 : [1962]1SCR383 . In the majority
judgment in S. P. Mittal v. Union of India, : [1983]1SCR729 reference to this
aspect has also been made and it has been stated :"
"The words 'religious denomination' in Art. 26 of the Constitution must take
their colour from the word 'religion' and if this be so, the expression
'Religious denomination' must also satisfy three conditions :
1 . It must be a collection of individuals who have a system of beliefs or
doctrines which they regard as conducive to their spiritual well-being, that is,
a common faith;
2. Common organisation; and
3. Designation by a distinctive name."
27. In view of the clear pronouncement made by the Supreme Court in the aforesaid

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case laying down three conditions to be satisfied by a community to fall within the
expression 'religious denomination', it is unnecessary for me to deal with the various
decisions of this Court cited by learned counsel for the respondents. It is enough if I
give a reference to the citations. They are : -
1. Muthia Asari v. Madasami Asari, (1965) 78 Mad LW 288,
2 . R. China Boyan v. Commr. for Hindu Religious and Charitable
Endowments, Madras MANU/TN/0576/1975 : (1975) 2 MLJ 294 ,
3 . V. Balakrishnan v. Asst. Comnr., H.R. and C.E., (Admn.) Department,
Tirunelveli, 1978 TLNJ 359,
4. Madurai Sourashtra Sabha v. Commr., H.R. and C.E. (Admn. Department)
Nungambakkam, Madras, (1971) 84 Mad LW 86 and
5 . A. Palaniandi Pillai v. Commr., Hindu Religious and Charitable
Endowments, Madras MANU/TN/0258/1980 : AIR1980Mad166
2 8 . Learned counsel for the respondents submits that if the three conditions laid
down by the Supreme Court in S. P. Mittal's case : [1983]1SCR729 and reiterated in
Jagdishwaranand's case MANU/SC/0050/1983 : 1983CriL J1872 are to be satisfied
strictly, then some of the communities referred to in the decisions of this Court cited
by him would not be religious denominations, but they have been held to be so by
this Court. It is the contention of the learned counsel for the respondents that the
scope of the definition of 'religious denomination' has been widened by the decisions
of this Court cited by him and the Senguntha Mudaliar community of Tharamangalam
would, therefore, be a religious denomination as per the definition culled out from
the decision of this Court. In other words, learned counsel submits that if the
communities involved in the aforesaid decisions of this Court can be said to be
religious denominations, then Senguntha Mudaliar Community of Tharamangalam
should automatically be treated as a religious denomination. I am unable to agree
with this contention of learned counsel for the respondents. As far as I am able to see
the decisions of this Court cited by him turned on the facts of those cases and in
every case there is a finding of fact that the community involved therein was proved
to be a religious denomination. It is not within my province to probe further and find
out whether the conditions laid down by the Supreme Court were satisfied by the
evidence in each of those cases.
29. There are two decisions of this Court not referred to by either of the learned
counsel, but in which the relevant test has been correctly pointed out and applied. In
K. V. Vaidyanatha Sastrigal v. K. S. RamaswAmi Iyer, 1972 TLNJ 404, Sadasivam, J.
observed as follows : -
"When the question arises as to whether or not a temple has been dedicated
to a particular sect, the performance of the worship of the idol in accordance
with the rites of the sect for whose benefit it was held might be treated as
evidence of dedication. There was no evidence to show that the Chozhia
Brahmins of Kadayanallur worshipped Neelamaninathar as their family Deity,
or that the suit temple was originally installed to propagate the tenets of
their religion." (underlining mine)
Again in Kuppuswami Chetty v. Commr. of H.R. & C.E., 1972 TLNJ 443,
Ramaprasada Rao, J. held that the sect called the Beri Chetty community was

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 a religious denomination inasmuch as the members of the community were
followers of Sri Abhinava Dliarma Sivacharya Math which had peculiar
concepts in the matters of religion. In any event, the position is made clear
by the latest pronouncements of the Supreme Court in S. P. Mittal v. Union of
India, : [1983]1SCR729 and Acharya Jagdiswaranand Avadhuta v. Commr. of
Police, Calcutta, MANU/SC/0050/1983 : 1983CriLJ1872 .
3 0 . As seen from the decision of the Supreme Court, the words 'religious
denomination' must take their colour from the word 'Religion'. It is, therefore, clear
that the common faith of the community should be based on religion. It is essential
that they should have common religious tenets. The basic cord which connects them
should be religion and not anything else. If the aforesaid tests are applied in the
present case, it will be seen that Senguntha Mudaliar community of Tharamangalam
cannot claim to be a religious denomination. There is absolutely no evidence on
record to prove that the members of the community have common religious tenets
peculiar to themselves other than those which are common to the entire Hindu
community. The only witness examined on the side of the plaintiffs is the first
plaintiff who speaks repeatedly about the temple being owned by the community and
administered by the two sections called Chinna Katchi and Periya Katchi. Though he
asserts in the cross examination that there is no person in Tharamangalam who does
not belong either to Chinna Katchi or Periya Katchi, there was no such averment in
the plaint to that effect. He is not able to explain the absence of such an averment in
the plaint. One significant fact is brought out in the admission of P.W. 1 that the
person who performs the pujas in the temple is a Gounder and not a Senguntha
Mudaliar. Though the pujari is said to be a paid employee of the community, it is a
matter of admission that before the present pujari his father was doing pujas. P.W. 1
pleads ignorance as to who was doing puja prior to 1966. Though he states that
accounts are available for the periods both prior to and after 1966, no such accounts
have been produced. He admits that there is a street in Tharamangalam for Karkatha
Vallalars. Obviously, his assertion that there is nobody in the village who does not
belong either to Chinna Katchi or Periya Katchi is false. In another place, P.W. 1
admits that 90% of the Mudaliars of Tharamangalam belong to Chinna Katchi and
Periya Katchi. That proves that there are other Mudaliars not belonging to either
Chinna Katchi or Periya Katehi. D.W. 1, who was appointed as a trustee by the
Department, also belongs to Senguntha Mudaliar Community. According to him, the
persons who carried the deity in procession are Padayachi Gounders and Karkatha
Vellalars. According to him, members of all communities will take part in festivals
and will do "fire walking". According to him, Gounders were doing pujas in the
temple for 30 or 40 years, and that contributions for festivals are made by members
of all communities. Even if it can be urged that the evidence of D. W. 1 having been
rejected by the learned appellate Judge as thoroughly unsatisfactory and that I should
not place any reliance thereon, I do not find any necessity to rely upon the oral
evidence of D.W. 1 in the present case. In my opinion, neither the oral evidence of
P.W. 1 nor the documentary evidence produced by the plaintiffs would be sufficient to
prove that the three conditions laid down by the Supreme Court are satisfied in the
present case. In fact, there is no iota of evidence to sustain the claim that the
members of Senguntha Mudaliar Community have a common religious faith. The
ingenious argument advanced by learned counsel for the plaintiffs before the lower
appellate Court is that the common faith peculiar to Senguntha Mudaliars of
Tharamangalam is evident from their worshipping a peculiar idol known by the
peculiar name Kannanoor Mariamman. I do not find any peculiarity in worshipping
the idol of Mariamman which is a common deity to several sections of the Hindu
Community. There is no evidence on record as to how the idol got the name

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Karmanoor Mariamman. In all probability the idol might have been brought from a
place called Kannanoor or the deity of Mariamman in Kannanoor is so famous that the
people in Tharamangalam named the idol which they worshipped after that deity. It is
very common in these days to see the idols of Sabarimalai Ayyappan being installed
in every city, town and village in this country. In the absence of any evidence that
there are religious tenets and practices special to the community, the plaintiff cannot
succeed in proving that the community of Senguntha Mudaliars of Tharamangalarn is
a religious denomination. There is also no evidence to show that the members of
other communities have been excluded during certain religious ceremonies performed
by Senguntha Mudaliars. On the other hand, there is an admission on the part of P.W.
1 that the idol of Kannanoor Mariamman is worshipped by members of other
communities also, though he adds that they would do so with the permission of the
plaintiffs.
31. It is well-known that communities were formed in this country on account of
various reasons under several circumstances. It is not as if religion is the only
common bond for the members of the communities found in this country. Instances
are not wanting where communities were formed on the basis of profession or
business or calling. It is seen from the Tamil Lexicon published by University of
Madras that "Sengunthars" were persons of Kaikkola caste, the spearmen of ancient
times. The word "Senguntham" means "a red spear" that is a spear,, which became
red on account of the blood of the enemies. History reveals that Kaikkolars were able
warriors serving as personal body-guards of ancient Chola Kings. The Tamil Lexicon
describes "Kaikkolars" as members of a caste, now mostly weavers found in all Tamil
Districts. As regards the term "Mudalier" it is described as a caste title to a sect of
Vellalars, i.e., Sengunthars and a sect of Jains in Tanjore. The Tamil word "Mudali" is
defined as "Head" or "chief". It is a matter of common knowledge that in the present
days Senguntha Mudaliars have adopted weaving as their calling. It is quite probable
that the ancient warrior community chose to settle in different places pursuing
different professions when they could not find any use for their proficiency in martial
arts. It is unnecessary for me to consider as to why the plaintiff's community came to
be called as Senguntha Mudaliar community. Suffice it to say that the evidence on
record does not make out that the plaintiffs belong to a religious denomination or
that the Senguntha Mudaliar community of Tharamangalam is a religious
denomination, in order to get the benefits of Art. 26 of the Constitution.
32. The last question that remains to be considered is whether the suit temple has
been proved to be established and maintained by the Senguntha Mudaliar community
of Tharamangalam. The earliest document filed in support of the claim of the
plaintiffs is Ex. A-21 which is an unregistered agreement between Chinna Katchi and
Periya Katchi dt. 9th Aug., 1933. The agreement provides for turn management in the
alternate years by the two factions. Significantly, the agreement does not state that
the temple was established by the community. The agreement relates to two temples,
Matam, a Nandhavanam and a tamarind those. The rights of the two factions flowing
under the agreement were upheld in a litigation in the year 1958. When the members
of the Periya Katchi contended that the two Katchis had sunk their differences and
ceased to exist after 1957, the Court rejected the same and upheld the claim of the
Chinna Katchi that the agreement of 1933 governed the right of the management of
the institutions mentioned therein. That decision was upheld by this Court in S.A. No.
877 of 1960 as evident from Ex. A-3. Apart from the civil proceedings referred to
above and the agreement of 1933, the plaintiffs have produced some electricity bills
ranging from 1960 to 1983 to show that they have been continuously in management
of the temple. The case of the plaintiffs that they have been continuously in

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management of the temple from 1933 onwards has been proved beyond doubt. But,
there is no acceptable evidence to prove that the temple was founded by the
members of the community. Learned counsel for the respondents invites this Court to
draw an inference that the temple was established by the members of the community
from the fact that the management and administration have been continuously with
the members of the community for over 50 years. The temple is claimed to be 200
years old by the plaintiffs. The first plaintiff is only 56 years old and no other elderly
person has been examined to speak about any fact relating to a prior period. It is not,
possible to draw an inference of the establishment of the temple by the community
from the fact that the members of the community have been managing the temple for
about, 50 years.
33. For the purpose of invoking Art. 26 of the Constitution the plaintiffs have got to
prove two facts, (1) that they established the temple and (2) they maintain the
temple. In fact, learned counsel for the respondents himself referred to the decision
of the Supreme Court in Azeez Basha v. Union of India, MANU/SC/0039/1967 :
[1968]1SCR833 , where the Supreme Court held that the word "establish and
maintain" in Art. 26(a) of the Constitution 'must be read conjunctively and it is only
those institutions which a reli0ous denomination establishes which it can claim to
maintain and that the right under Cl. (a) of Art. 26 will only arise where the
institution is established by a religious denomination. In view of the same, the
burden is on the plaintiffs to prove that the temple in question was established by the
community of Senguntha Mudaliars of Tharamangalam and it is not sufficient if it is
proved that the temple was being maintained by the community. I am of the opinion
that the entire evidence let in by the plaintiffs in the present case will only go to the
extent of proving that the temple in question was being maintained by the members
of Senguntha Mudaliars of Tharamangalani community and it will not prove that the
temple was established by them.
34. In the result, the second appeals are allowed and the judgment and decree of the
learned Second Additional District Judge of Salem are set aside. The suit O. S. No. 19
of 1984 on the file of the District Munsif, Salem is dismissed. However, in the
circumstances of the case, there will be no order as to costs.
35. Appeals allowed.

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