Holding

The suit jewellery is a specific public endowment dedicated for adorning the deity, the appellant has no ownership claim, and the doctrine of res judicata does not bar the relief, so the decree restraining interference is upheld.

Summary

The appellant claimed that 26 pieces of suit jewellery kept in the temple's Kudavarai were his personal inheritance as the adopted son of Muthuthandapani Chettiar and sought exclusive possession. The respondent temple argued that the jewellery had been donated by the ancestors of Muthuthandapani as a specific endowment for adorning the deity during the Adipooram festival. The Supreme Court held that the jewellery is a specific public endowment, the dedication can be inferred from long uninterrupted use, and the appellant has no ownership rights. The Court also ruled that the earlier suit for a receiver was dismissed on technical grounds and therefore does not give rise to res judicata or constructive res judicata. Consequently, the appeals were dismissed and a decree restraining the appellant from interfering with the temple's right to use the jewellery was affirmed.

Issues considered

The nature of the suit jewellery: whether it constitutes a specific endowment under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
Whether an express dedication document is required to establish a religious endowment.
The appellant's claim to exclusive possession of the Kudavarai and the jewellery.
The applicability of res judicata and constructive res judicata (Order II Rule 2 CPC) to bar the appellant's claim.
The maintainability of the appellant's civil suit under Section 108 of the 1959 Act.
Whether the High Court's injunction exceeds the prayer sought in the suit.

Legislation cited

Code of Civil Procedure, 1908s. 11, s. Order II Rule 2
Indian Evidence Act, 1872s. 114
Limitation Act, 1963s. 113
Madras Hindu Religious and Charitable Endowments Act, 1926s. 9(11)
Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959s. 108, s. 116(2)(xii), s. 29(d), s. 32, s. 38(1), s. 6(17), s. 6(19), s. 63, s. 69, s. 70

Subjects

Specific endowmentHindu Religious and Charitable Endowments ActRes judicataConstructive res judicataCivil Procedure CodeReligious charityKudavaraiTemple jewelleryAdoption inheritance

Judgment

[2022] 11 S.C.R. 475 475

R. M. SUNDARAM @ MEENAKSHISUNDARAM A
v.
SRI KAYAROHANASAMY AND NEELAYADHAKSHI
AMMAN TEMPLE (THROUGH ITS EXECUTIVE OFFICER)
NAGAPATTINAM, TAMIL NADU
B
(Civil Appeal Nos. 3964-3965 of 2009)
JULY 11, 2022
[AJAY RASTOGI AND SANJIV KHANNA, JJ.]
Tamil Nadu Hindu Religious and Charitable Endowments
C
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, D
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
E
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 F
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
G
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
H
475
476 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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
C 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
D 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
E 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]

F 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.
G 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
H
R. M. SUNDARAM v. SRI KAYAROHANASAMY AND 477
NEELAYADHAKSHI AMMAN TEMPLE

we are in agreement, the suit jewellery was dedicated for a 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 B
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 C
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 D
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 E
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 F
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 G
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][497-
A-F] H
478 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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
C 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
D 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][497-
G-498-A-C]
5. General principle of res judicata under Section 11 of
E 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
F 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
G 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
H
R. M. SUNDARAM v. SRI KAYAROHANASAMY AND 479
NEELAYADHAKSHI AMMAN TEMPLE

and the dismissal is confirmed in appeal (if any), the decision, A
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
B
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 C
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 D
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 E
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 F
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 G
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
H
480 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
“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
C 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
D 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
E 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
F 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
G 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
H
R. M. SUNDARAM v. SRI KAYAROHANASAMY AND 481
NEELAYADHAKSHI AMMAN TEMPLE

that the suit jewellery was only used for the purposes of A
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
B
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 C
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 D
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, E
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 F
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 G
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

H
482 SUPREME COURT REPORTS [2022] 11 S.C.R.

A Kudavarai doors and take out the suit jewellery from the iron-
safe whenever required. [Paras 36 & 37][502-H; 503-A-B, F-
G]
Deoki Nandan v. Murlidhar and Others AIR 1957
SC 133 : [1956] 0 SCR 756 – followed.
B
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
C 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
D 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
E 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.

F Case Law Reference
[1956] SCR 756 followed Para 19
[1977] 1 SCR 889 relied on Para 20
[1966] 1 SCR 643 referred to Para 21
G
(2020) 17 SCC 96 referred to Para 23
[2019] 11 SCR1125 referred to Para 24
[1966] 3 SCR 300 relied on Para 30
[1964] 7 SCR 831 relied on Para 33
H
R. M. SUNDARAM v. SRI KAYAROHANASAMY AND 483
NEELAYADHAKSHI AMMAN TEMPLE

[2012] 7 SCR 933 relied on Para 34 A
[2008] 14 SCR 621 referred to Para 36
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.3964-
3965 of 2009.
From the Judgment and Order dated 30.06.2008 of the High B
Court of Judicature at Madras in S.A. No.829 of 2000.
S.Nagamuthu, Sr. Adv., G. Ananda Selvam, Mayil Samy K.
Sanchit Maheshwari, V. N. Raghupathy, Advs. for the Appellant.
Amit Anand Tiwari, AAG, Vinodh Kanna B., D. Kumanan,
Sheikh Fakhruddin Kalia, Advs. for the Respondent. C
The Judgment of the Court was delivered by
SANJIV KHANNA, J.
The dispute in the present appeals arises from two separate suits
in relation to (i) the dedication of 26 items of jewellery1, some of which D
are embedded with diamonds and precious stones, to the deity Sri
Neelayadhakshi Amman of the Sri Kayarohanasamy and Neelayadhakshi
Amman Temple;2 and (ii) the exclusive possession of the ‘Kudavarai’
(safe vaults) of the Temple which houses the suit jewellery.
2. It is the case of the appellant, R.M. Sundaram, that the suit E
jewellery was inherited by him as his personal property being the adopted
son of Muthuthandapani Chettiar and his wife, M. Thangammal. On 6 th
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 comply with
the undertaking given in the letter dated 4th October 1962 and thereby F
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 G
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
1
For short, ‘suit jewellery’.
2
Hereinafter referred to as the ‘respondent’ or ‘Temple’.
H
484 SUPREME COURT REPORTS [2022] 11 S.C.R.

A throughout his lifetime. By way of gratitude, Muthuthandapani Chettiar,
in terms of a letter of undertaking dated 4th 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, and the Temple
B
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.
C 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
D 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
E 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
F (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
G 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’
H and then taken out in a Temple car and ratham in grand procession
R. M. SUNDARAM v. SRI KAYAROHANASAMY AND 485
NEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.]

around the four streets on all ten days of the festival. The Kudavarai is A
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 B
or at will. While admitting that two keys of the external door-way of the
Kudavarai as well as 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 C
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.
4. With reference to the letter of undertaking dated 4th October
D
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. E
5. The suit filed by the appellant was dismissed by the trial court,
vide judgment dated 26th 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 the Tamil Nadu
F
Hindu Religious and Charitable Endowments Act, 1959,3 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 G
claim for possession of Kudavarai was also barred as it interfered with
the internal administration of the Temple.
6. In relation to the undertaking dated 4th October 1962, the trial
court observed that it was never acted upon by Muthuthandapani Chettiar
3
Hereinafter referred to as the ‘1959 Act’. H
486 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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 Judge,
B Nagapattinam, vide judgment dated 30th August 1993, who reiterated
that the suit was barred under the 1959 Act and the undertaking dated
4 th October 1962 was not acted upon during the lifetime of
Muthuthandapani Chettiar.
8. The appellant had, thereupon, preferred a second appeal (S.A.
C No. 1522/1993) before the High Court which has been dismissed by the
impugned judgment dated 30th 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,
D renumbered as O.S. No. 56/1996) instituted by the Temple on 11th 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.
E
10. The trial court vide judgment dated 17th 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.
F 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 out by Muthuthandapani Chettiar from the Kudavarai
for this purpose. It was observed that the undertaking dated 4th October
1962, which was marked as Exhibit B-1, was not acted upon by
Muthuthandapani Chettiar, as was recorded in the decision of the trial
G
court dated 26th 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
H suit jewellery was not made for the benefit of the family of
R. M. SUNDARAM v. SRI KAYAROHANASAMY AND 487
NEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.]

Muthuthandapani Chettiar. The suit jewellery was kept inside the vault A
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
B
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 safe
were in the possession of Muthuthandapani Chettiar and the evidence
indicated the right of possession of Muthuthandapani Chettiar to the C
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. D
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. E
No. 6/1999) before the Additional Subordinate Judge of Nagapattinam
wherein the appellant court, vide judgment dated 5th August 1999, held
that the suit filed by the respondent/Temple for declaration was barred
under Order II Rule 2 of Code of Civil Procedure, 19084 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 F
which was dismissed by the trial court on 6th 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 G
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
4
For short, the ‘Code’ H
488 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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.
C
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.

D 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,
E 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
F Chettiar or his ancestors. The administration of the Temple was originally
vested with Nagai District Devasthanam Committee. Pursuant to Order
No. G.O. 135 dated 16th January 1942, a revised scheme of Hindu
Religious and Charitable Endowment was implemented and the
respondent/Temple came under direct administration of the Hindu
Religious and Charitable Endowments under the Madras Hindu Religious
G Endowments Act, 1926 enforced with effect from 19th 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.
H
R. M. SUNDARAM v. SRI KAYAROHANASAMY AND 489
NEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.]

On the tenth day, after sacred bath, the idol of goddess Sri Neelayadhakshi A
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 B
during their lifetime. PW-3, Abadhthothranam Chettiar5, 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 C
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 never claimed rights over
the suit jewellery. PW-4, Sundarajan6, another erstwhile trustee of the
Temple during the period 1972-1977, had similarly deposed that the D
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
Temple. PW-5, Kalimuthu7, who had been closely associated with E
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 F
and had never claimed any right over the suit jewellery.
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 G
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
5
‘Abathaoranam Chettiar’ in the record of evidence
6
‘Soundarajan’ in the record of evidence
7
‘Marimuthu’ in the record of evidence
H
490 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B 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’.
C 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 course of administration of Temple
containing details and particulars of jewels of the Temple. Even in 1963,
D the suit jewellery had been shown as ‘Adipooram Ambal Thiru
Abaranam’. Muthuthandapani Chettiar died on 21st 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
E scheme dated 16th 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
F 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
G also made reference to Exhibit B-1, the family settlement dated 26th
October 1969, which was entered into, after the death of Muthuthandapani
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
H Muthuthandapani Chettiar. Exhibit B-1 records that Muthuthandapani
R. M. SUNDARAM v. SRI KAYAROHANASAMY AND 491
NEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.]

Chettiar and his ancestors were liberal in creating endowments and A
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
B
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.
C
19. In Deoki Nandan v. Murlidhar and Others,8 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, D
the question whether an endowment is private or public presents
no difficulty. The cardinal point to be decided is whether it was
the 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 E
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 F
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 G
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.”
8
AIR 1957 SC 133 H
492 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 20. Following the above ratio in The Commissioner for Hindu
Religious and Charitable Endowments, Mysorev. Sri Ratnavarma
Heggade (Deceased)by his L. Rs.,9 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
B 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 Samarpanam are relevant for proving
C 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.
D 21. Earlier, in M.R. Goda Rao Sahibv.State of Madras,10 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
E 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
Act,1951 and in particular to Section 3211 thereof, to observe that:
F 9
(1977) 1 SCC 525
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
G 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 the trustee and after giving the person in possession,
a reasonable opportunity of stating his objections in regard thereto, by order determine
H the amount payable to the trustee.”
R. M. SUNDARAM v. SRI KAYAROHANASAMY AND 493
NEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.]

“There is no dispute that in order that there may be an endowment A
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
B
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 C
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
D
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 E
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 F
endowment attached to a math or a temple may consist merely of a
charge on the property. Therefore, in order to constitute specific
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 G
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 H
494 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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:
B “”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
C 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
D 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
E given or endowed for the support of a 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
F 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
G 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:
H
R. M. SUNDARAM v. SRI KAYAROHANASAMY AND 495
NEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.]

“”specific endowment” means any property or money endowed A
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 B
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 C
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;”
In the context of the present case and the facts recorded above, D
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 E
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 F
Idol of Sri Renganathaswamy represented by its Executive Officer,
Joint Commissioner v.P.K. Thoppulan Chettiar, Ramanuja Koodam
Anandhana Trust, represented by its Managing Trustee and Others12
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 G
was observed that:
“for a charity to constitute a “religious charity”, there is no
requirement for the public charity to be connected with a particular
12
(2020) 17 SCC 96
H
496 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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)
B
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
C 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 and
D Charitable Endowment Administration and Another,13 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
E jewellery as religious charity is established beyond doubt.
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
F 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.
G 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.
13
H (2019) 8 SCC 689
R. M. SUNDARAM v. SRI KAYAROHANASAMY AND 497
NEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.]

26. The claim of the appellant based on the principle of res judicata A
and constructive res judicata/ Order II Rule 2 of the Code14 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.
27. The respondent had filed a civil suit in November 1981 (O.S.
No. 99/1981) before the Subordinate Judge, Nagapattinam against the B
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 C
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 D
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 the Temple premises for some time and the
then Executive Officer of the respondent/Temple had died under E
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 F
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 G
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,
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.” H
498 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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.
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
C 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.
30. This Court in Sheodan Singh v. Daryao Kunwar (SMT)15
D 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;
E
(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;
F (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
G first suit. Further Explanation 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
15
H AIR 1966 SC 1332
R. M. SUNDARAM v. SRI KAYAROHANASAMY AND 499
NEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.]

operates as res judicata it will have to be seen whether all the five A
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 B
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 C
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 D
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.16 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 E
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 F
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 G
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, should not be denied. The bar of
constructive res judicata/ Order II Rule 2 of the Code is not attracted.
16
Sheodan Singh v. Daryao Kunwar (SMT) AIR 1966 SC 1332
H
500 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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 judgment of this Court in Gurbux
C Singh v. Bhooralal17 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;
D (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 to start with, the precise cause of action
E 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
F 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
G 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
17
H AIR 1964 SC 1810
R. M. SUNDARAM v. SRI KAYAROHANASAMY AND 501
NEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.]

which is pleaded as estoppel, we consider that a plea under Order A
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
B
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 Limited18
observed that: C

“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 situation where one of the several
reliefs, though available to a plaintiff, may not have been claimed D
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
E
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
F
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 G
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
18
(2013) 1 SCC 625 H
502 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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
C 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
D
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
E 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,
F
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
G 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
H
R. M. SUNDARAM v. SRI KAYAROHANASAMY AND 503
NEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.]

by the respondent/Temple against rejection of its prayer of injunction A
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 B
Adipooram festival. We feel this decree or direction is beyond what was
sought by the respondent/ Temple in the plaint. This court in Bachhaj
Nahar v. Nilima Mandal and Another19 has clearly stipulated the limits
of a court to grant reliefs beyond the prayer and pleadings of the parties
and observed that: C
“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
D
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 E
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
F
also records that the decree for permanent injunction as prayed for is
granted to the respondent/Temple. Accordingly, we 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 G
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 in its decision dated 17th October 1996 in the respondent’s suit
19
(2008) 17 SCC 491 H
504 SUPREME COURT REPORTS [2022] 11 S.C.R.

A (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
B
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
C of the door of the Kudavarai and the iron safe; As any failure to abide by
the 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
D 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
E 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
F 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 Neelayadhakshi
G 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.
Ankit Gyan Appeals dismissed.
(Assisted by : Rahul Rathi, LCRA)
H