Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 – ss. 116(2)(xii), 108 – Dedication of Jewellery – Specific Endowment – Adorning the Deity – Appellant’s case that ‘M’ licensed the suit jewellery to be kept in the Kudavarai (safe vaults) of the Temple (respondent) – Appellant claimed that the suit jewellery was inherited by him as an adopted son of ‘M’ – Held: 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 and against the appellant – The dedication of the suit jewellery does not require an express dedication or document, and can be inferred from the circumstances – 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 – Suit jewellery was a ‘specific endowment’ for the performance of the specific service of adorning the deity and it was a charity in favour of the Temple – 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 – 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 – Appellant restrained 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.
Civil Procedure Code, 1908 – s. 11 – Res judicata – Constructive Res judicata – Or. II, r.2 – 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 – 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 – Hence, the bar of constructive res judicata/ Order II Rule 2 of the Code is not attracted.
Dismissing the appeals, the Court
HELD: 1. 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 f or the specific purpose of adorning the deity, Sri Neelayadhakshi Amman. [Para 22][495-D-E]
2. 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.[Para 25][496-F-G]
3. The claim of the appellant based on the principle of res judicata and constructive res judicata/ Order II Rule 2 of the Code as the respondent/ Temple has earlier filed a suit for appointment of a receiver for taking inventory of the suit jewellery is also without merit. The respondent had filed a civil suit in November 1981 (O.S. No. 99/ 1981) bef ore the Subordinate Judge against the present appellant and his mother. 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 ‘M’. It was further stated that the keys of the iron safe were with the family of ‘M’ while the keys of the two almirahs were with the Joint Sub-Registrar, 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 ‘M’. 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 the Temple premises for some time and the then Executive Officer of the respondent/Temple had died under suspicious circumstances. Some jewellery was f ound to be missing f rom 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 ‘M’ had been requested and was served with the notice in this regard, but had expressed their inability to comply with the request for inspection. [Paras 26 & 27][497A-F]
4. 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 ‘M’. 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 suit jewellery to a place of his choice and even to stop the respondent/Temple from using the suit jewellery during Adipooram festival. 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 opinion of this Court, the High Court has rightly rejected the plea of res judicata and constructive res judicata / Order II Rule 2 of the Code. [Paras 28 & 29][497G-498-A-C]
5. 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 nonjoinder 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 appeal (if any), the decision, not being on the merits, would not be res judicata in a subsequent suit. The reason is that the first suit is not decided on merits. 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, theref ore, should not be denied. The bar of constructive res judicata/ Order II Rule 2 of the Code is not attracted. 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. [Paras 31-33][499-B-G; 500-A-C]
6. 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 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 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 tem ple”. In these circumstances, we do not want another round of litigation which would serve no purpose. This Court also has 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. [Para 35][501-F-H; 502-A-G]
7. This court 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 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. 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, this Court clarify and pass 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 ironsafe whenever required. [Paras 36 & 37][502-H; 503-A-B, FG] Deoki Nandan v. Murlidhar and Others AIR 1957 SC 133 : [1956] 0 SCR 756 – followed.
The Commissioner for Hindu Religious and
Charitable Endowments, Mysore v. Sri Ratnavarma Heggade (Deceased) by his L.Rs., (1977) 1 SCC 525 : [1977] 1 SCR 889; Sheodan Singh v. Daryao
Kunwar (SMT) AIR 1966 SC 1332 : [1966] 3 SCR 300; Gurbux Singh v. Bhooralal AIR 1964 SC 1810 : [1964] 7 SCR 831; Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited (2013) 1 SCC 625 : [2012] 7 SCR 933 – relied on. M.R. Goda Rao Sahib v. State of Madras [1966] 1 SCR 643; Sri Renganathaswamy represented by its Executive Officer, Joint Commissioner v. P.K. Thoppulan Chettiar, Ramanuja Koodam Anandhana Trust, represented by its Managing Trustee and Others (2020) 17 SCC 96; M.J. Thulasiraman and Another v. Commissioner, Hindu Religious and Charitable Endowment Administration and Another (2019) 8 SCC
689 : [2019] 11 SCR 1125; Bachhaj Nahar v.Nilima Mandal and Another (2008) 17 SCC 491 : [2008]
14 SCR 621 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.