Andhra HC (Pre-Telangana)
Kolluri Suryanarayana Murthy Choultry vs Kolluri Lakshmana Rao And Ors. on 23 July, 1998
Equivalent citations: 1998(5)ALD507, 1998(5)ALT606
JUDGMENT
1. The Manager of Gudala Group of Temples, Amalapuram filed OS No.51 of 1977 as per the instructions of the Assistant Commissioner, Endowment Department, Rajahinundry in his Proceedings in Rc.No.A-2, 23554/76, 4 Adm, dated 29-12-1976, marked as Ex. A-l in the suit, for taking possession of the properties belonging to the Choultry, for rendition of true and correct accounts of the income on the plaint 'A' and 'B' Schedule Properties for the last three years, for future profits and for the costs of the suit, against the defendants who are the lineal descendants of Sri Kolluri Suryanarayana Murthy, who is established a choultry under the name and style of 'Kolluri Suryanarayana Murthy Choultry' in 1946.
2. The plaint allegations are that late Kolhiri Suryanarayana Murthy established a Charitable Institution in the Year 1946 and he was feeding the wayfarers, over a number of years. As he became old he executed a registered Will with regard to his properties on 1-3-1960. In that Will he has set apart a tiled house Schedule 'A' in which he was living as choultry and the immovable property for maintenance of the choultry as shown in B Schedule was set apart from movable properties shown in 'C' Schedule to the plaint. As per the terms of the Will, during his life time the testator retained absolute right to manage the choultry and after his death his wife and thereafter all his children in turn have to maintain the choultry keeping the respect and prestige attached to the choultry. It is also the case of the plaintiff that the Defendants registered the choultry as a Charitable Institution under Section 38 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 (hereinafter referred to as "the Act") in the Office of the Assistant Commissioner, Endowments Department at Rajahmundry vide his Proceedings in R. Dis No. B2, 9587/74 and a copy of the same was marked as Ex.A8. After the death of the testator and his wife, the sons of the testator and their children were looking after the affairs of the choultry. At the same time, as the defendants were not submitting proper accounts to the Department, Hence the Asst. Commissioner directed the plaintiff to file a suit for accounts and possession of the choultry against all the trustees and to; report compliance. While defendants 1 to 9 are the lineal descendants of late Suryanarayatia Murthy, the 10th defendant is a lessee of 'B' Schedule property and it is the case of the plaintiff that in spite of repeated requests he was not paying the. rents to the plaintiff. Stating so the suit was filed seeking the above reliefs.
3. The 2nd defendant filed written statement contending that the suit schedule properties are not charitable properties as the ownership of these properties were never transferred to the Department. The chouhry is being maintained purcly as a private choultry and no endowment was created as such by the testator and the same cannot be treated as a charitable trust. As per the Will executed by the founder the choultry has to be managed by his wife and thereafter his sons and their progeny. As such the choultry cannot be termed as a charitable institution as defined under Section 2(4) of the Act and the same has no application. The testator prescribed in the Will the method and manner in which the trust and its properties have to be administrated and the line of succession was given in the Will. Hence, the question of appointing an Executive Officer or a Manager to the choultry by the Assistant Commissioner docs not arise. The suit schedule properties being joint family properties everyone of the co-parceners are having a right in the property and as such the founder has no power to constitute a trust with the joint family properties without the consent of the co-parceners. As such even if it is presumed to be a public trust that cannot be acted upon as the testator has no power to bequeath the properties for a charitable purpose. It is also his case that the High Court in WP No.1479 of 1971 by an order dated 12-10-1972 declared that the suit schedule properties were always treated as private properties belonging to the joint family of late Suryanarayana Murthy and his sons. As the Management, Administration and enjoyment of the suit properties are all internal matters between the sons and the grand-sons of the founder and neither Endowment Department nor any of the Officer, more so the plaintiff has no concern with the administration of the properties and the suit itself is misconceived and not maintainable in law. The provisions of the Act do not apply to the suit properties or their management and enjoyment and as such the Assistant Commissioner or any other Officer has no power to initiate any proceedings or pass any orders under Section 26(3) of the Act.
4. The 5th defendant filed a separate written statement contending that the income on the suit schedule properties is less than Rs.5,000/- and as such the provisions of the Act are not applicable to the choultry. With regard to payment of Court-Fee, his case is that under Section 27 of the A.P. Court Fee and Suits Valuation Act the dispute should be between Trustees or a person who is ceased to be a trustee or between trustees and rival claimants to the office of the trustee. As the present plaintiff is neither a trustee nor a rival claimant to the office of trustee, Section 27 docs not apply.
5. The defendants 7 and 8 filed separate written statement by contending that the suit itself is a speculative one and the same was filed in collusion with some of the defendants who are working against the interest of the plaintiff choultry. Further, it is their case that the procedure to take possession of the properties is provided under the Act and the Manager has no right to file a suit. As the choultry being a private one the Department has no right to appoint a fit person to the choultry. On other aspects these defendants adopted the writ statement filed by defendants 4 to 6, 9 and 10.
6. The first defendant by memo dated 1-7-1978 adopted the written statement filed by the 2nd defendant.
7. After completion of the pleadings the learned Subordinate Judge, Amalapuram framed as many as 12 issues and the parties were put to trial.
8. On behalf of the plaintiff PWs.1 and 2 were examined and 9 documents i.e., Exs.Al to A9 were marked. On behalf of the defendants none were examined except marking a copy of the Order No.902/79, dated 8-12-1979 in OA No.93 of 1976 filed by the 2nd defendant hereinunder Section 77 (1) (i) of the Act for a declaration that he is entitled to succeed to the 6th respondent turn of office of Trusteeship of the Choultry from 1-6-1976 to 31-5-1977 and for appointing a fit person for immediate custody, administration and management of the said choultry during the said period and for such other reliefs. From this order it is evident that the petition was dismissed on 8-12-1979 as the parties have failed to appear before the Dy. Commissioner and to adduce evidence in support of their contentions. While the Executive Officer, Gudala Group of Temples, who is in office, was examined as PW1; the Manager, who filed the suit in that capacity was examined as PW2. After the trial is over the Sub-Judge by his Judgment and decree having held all the issues in favour of the plaintiff dismissed the suit by holding that the plaintiff was not appointed as Executive Officer of the choultry on the ground that the plaintiff failed to produce any orders appointing him as Executive Officer of the choultry or a Manager for managing the plaintiff-choultry suspending and dismissing the hereditary trustees. In other words the Court meant that as the hereditary trustees were neither suspended nor dismissed and there was no appointment of the plaintiff as an Executive Officer under Section 27 of the Act the suit is not maintainable.
9. Aggrieved by the said finding the Endowment Department filed this appeal but the defendants have not choosen to file any cross appeal against the judgment and decree to the extent that went against them. But Sri C. Poornaiah tried to re-agitate the matter on all issues that were framed for the purpose of trial. The arguments of the respondents Counsel are liable to be rejected on two grounds. Firstly, though his clients have taken various pleas whether consistent or inconsistent as per the terms of the Will they did not choose to come to the witness box and prove their allegations. With the result whatever they might have said in the written statement they remained only as pleadings and they cannot be looked into and they are liable to be ignored/rejected as the respondents failed to discharge burden caste on them to prove the contentions raised by them. Next question that falls for consideration of the Court would be whether the respondents can be permitted to attack the findings of the trial Court without filing cross appeal.
10. It is useful to extract Order 41, Rule 22(1) of the Code of Civil Procedure, which is as follows:
"Order XLI Rule 22 (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection) to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit it allow''
11. Under this Rule the respondent is given liberty to support the decree he may also take cross objection to the decree to which he would have taken by way of appeal. There seems to be a conflict prior to amendment in the year 1977 where such a course is open to the respondent without filing a cross-objection but after amendment of the Rule and by virtue of the explanation incorporated the position is made clear that though the respondent can support the decision of the Court on any other finding which is sufficient for the decision in the suit, the decree, is wholly or in part, in favour of the respondent has to file cross-objection in respect of the decree insofar as the finding that went against him. But, Sri. C. Poornaiah contends that the superior Courts have taken the view that as the word used is 'may' and as such even without filing the cross-objection also he can canvass the correctness of the finding of the Court below that went against him. But, no such decision was placed before me. Even assuming what Sri. Poornaiah contends is correct the view taken by me on the first issue i.e., non-examination of the witnesses and non-production of the documentary evidence in support of their case by the respondents goes to the root of the matter. I need not seriously delve upon the issue in this case. The only issue to be adjudicated is whether the suit filed by the Manager of Gudala Group of Temples is maintainable in law.
12. In this appeal two issues arises for consideration. They are (1) whether the provisions of the Act are applicable to the charitable institutions under the Management of the Respondents? and (2) Whether the suit filed by the Manager of Gudala group of temples is maintainable in law?
13. Under Section 2(4) of the Act a "charitable institution' is defined as any establishment, undertaking, organisation or association formed for a charitable purpose and includes a specific endowment and dharmadayam.
14. Under Section 2(25) of the Act 'Specific Endowment' means any property or money endowed for the performance of any-specific service or charity in a charitable or religious institution or for the performance of any other charity, religious or otherwise.
15. From the above two definitions it is seen that the testator established an institution for charitable purpose and endowed the suit schedule properties for performance of charitable purposes for which the charitable institution was established. But, under Section 1(3) (a) of the Act, the Act applies only to public charitable institutions and endowments. Now from the material available on record can it be said tliat it is a public charitable trust and the provisions of the Act are made applicable to the Trust.-
16. Ex,A3 is the registered Will executed by the founder of the Institution. In the said Will he categorically stated that there was a partition between him and his brothers and the properties that he got in the family partition were again partitioned between him. and his sons under a compromise decree in OS No.31 of 1952 on the file of Subordinate Judge, Amalapuram and he was executing the Will for the properties belonging to him. In the light of the above facts it is seen that the testator is having not only title to the property but he is empowered to dispose of the properties as he likes as the properties under his enjoyment have fallen to his share in the family partition between himself and his sons and the sons have no right whatsoever over the property. He has also made it clear tliat he has set apart the suit schedule properties i.e., 'A', and 'B' and 'C' schedule properties for carrying out the charitable purpose for which he founded the institution. It is only the Management of the institution that was entrusted to his wife after his death and thereafter to his sons in rotation. It is true that the appellant has not taken the necessary care to prove that the charitable institution is a public charitable institution by adducing proper evidence. At the same time, I am not inclined to remand the matter on that ground for the simple reason that the respondents (Defendants 4 to 6) filed an application before the Assistant Commissioner of Endowments, Rajahmundry in 1974 and got the choultry registered as a public charitable institution. After conducting the necessary enquiries the Assistant Commissioner by his order dated 27-5-1974 registered the choultry as a public charitable institution under Section 38(4) of the Act under Registration No. 121, dated 27-5-1974 and the same was marked as Ex.A8 in the case. In fact, none of the other legal heirs of the founder raised any objection for getting the institution registered as a public charitable institution. In fact, though the defendants filed separate written statement none of them attacked the registration of the choultry as a public charitable institution by defendants 4 to 6. It is also interesting to note that they themselves got Ex.Bt marked an order passed by the Deputy Commissioner, Endowments on an application filed under Section 77(1)(i) by the 2nd defendant wherein he categorically alleged that he is entitled to succeed to the turn of office of trusteeship of Kolluri Rama Subramanyam who seem to be one of the sons of the founder. The said Rama Subramanyam seem to have been died during the pendency of the proceedings before Dy. Commissioner and his sons were brought on record as legal representatives. But the fact remains none of the parties came forward to give evidence in this case and ultimately the OA was dismissed for non prosecution on 8th December, 1979. If the respondents are having any doubt about the character of the charitable institution i. e., it is private or public they would not have resorted to these acts. Hence I hold it is a public charitable trust and governed by the provisions of the Act.
17. Under Section 27(5) of the Act every Executive Officer or Manager appointed under the Section shall be the employee of the Government and the conditions of his service shall be such as may be determined by the Government. From this it is evident that a person appointed as a Manager also forms part of the cadre strength of the Endowment Department. As the Asst.Comniissioner's head-quarters is at Rajahmundry the Manager of Gudala Group of Temples was directed and authorised to file the suit for recovery of the possession of the properties of the choultry and for rendition of the accounts by placing the records before the Department Advocate and report compliance. As the Manager of Gudala group of Temples was not appointed as Manager of the Trust in question the Assistant Commissioner categorically directed him to carry out the instructions given by him and report compliance to him. But the trial Court on misinterpretation of the provisions of the Act held that as the plaintiff failed to produce any orders appointing him as an Executive Officer by suspending or dismissing hereditary trustees the suit filed by him is not maintainable in law. In arriving at the finding the trial Court relies upon the entries in Ex.A7 the Registration Book and the arrangement for the Management of the Choultry mentioned thereunder under Ex.A4. A reading of the provisions of the Act makes it clear that an Executive Officer or Manager can be appointed to function under the hereditary trustee or the Trust Board constituted for management of the affairs of the charitable institution. While there can be hereditary trustee or Trust Board without an Executive Officer for a charitable institution the Executive Officer or Manager cannot function on his own under the provisions of the Act. Further, the right of the Endowments Department to appoint trustees in addition to the hereditary trustee or a Manager to assist the hereditary trustee even if there is no mis-management of the affairs of the institution by the trustee is well recognised under the provisions of the Act. It is suffice to state that in Kakinada Avmadana Samajam v. Commissioner, Hindu Religious & Charitable Endowments, Hyderabad, the Supreme Court observed as follows:
"We may add that even if it was held that the rights in question constituted "property" their regulation by the relevant provisions of the Act would undoubtedly be protected by Article 19(5). We have no hesitation in concurring with the decision of the High Court that restrictions which have been imposed by the provisions of the Act on the hereditary trustees are reasonable and arc in the interest of the general public. The power to appoint non-hereditary trustees or Executive Officers where there is already a hereditary trustee or trustees notwithstanding there is no mismanagement is only for the purpose of ensuring better and efficient administration and management of the institution or endowment."
18. From the above it is seen that the appointment of 'a, Manager or an Executive Officer to manage the affairs of the institution under hereditary trustee is well recognised. In this case, it is not the case of any of the respondents that their right to manage the affairs of the institution was interfered by the Department, more so without conducting any enquiry. To my mind it is not the case of appointing an Executive Officer or a Manager to manage the affairs of the institution. But it is only an authorisation to the Manager of Gudala Group of Temples to file a suit on behalf of the Department for taking the possession of the properties and rendition of accounts and to assist the Department Advocate to pursue the suit to its logical end. In the light of the view taken by me the reasoning given by the learned Subordinate Judge for dismissing the suit cannot be sustained in law and the finding to the extent it went against the interest of the appellant, is set aside and it is held that the suit as filed by the Manager of Gudala Group of Temples is maintainable in law. If once that position is considered the appellant has to succeed in the suit.
19. In the result the judgment and decree of the Subordinate Judge, Amalapuram to the extent that it went against the interest of the Appellant is set aside and the suit is decreed as prayed for. But in the circumstances of the case no order as to costs.