Madras High Court
C. Raghavalu Chettiar (Died) G.V. ... vs The Commissioner, H.R. And C.E. And Anr. on 11 December, 1995
Equivalent citations: 1996(1)CTC670, (1996)IMLJ477
ORDER Govardhan, J.
1. The plaintiff is the appellant.
2. The averments in the plaint arc as follows: The plaintiffs grandfather Cheetalla Venkatachalam Chetty was the founder of Cheetalla Venkatachalam Chetty Charities and he was the sole trustee of the same for the performance of Thandhiarathanai services in Perumal Temples located in Madras. The house bearing new door No. 61, Govindappa Naicken Street, Madras-1 was set apart by him for the performance of the private trust in the partition deed of the family dated 2.11.1985. He had not executed any trust deed, with an absolute endowment of any properties for the performance of any specific endowment in any religious institution. There was a 'silasasanam' embedded on the walls of the house indicating the private nature of the trust in question. The object of the founder to perform the 'Thadhiarathanai services' is not with reference to any particular temple. So as to constitute a specific endowment or a Religious Charity. In view of the peculiar nature of the dedication, the plaintiff and his ancestors could not perform the 'Thadhiaradhanai services'. But the plaintiff has been continuing the services of distributing 'Thadhiarathanai' to desanthiris in the house set apart by the founder. The Deputy Commissioner, H.R. & C.E., Madras has initiated suo motu proceedings in OA. No. 19 of 1969 to frame a scheme for the private trust in question as if it has come under the purview of the Hindu Religious and Charitable Endowments Act (hereinafter called as the Act). The plaintiff has filed a petition under Section 63(a) of the Act in O.A. No. 30 of 1969 for a declaration that the above charity docs not constitute either as a specific endowment or a religious charity to attract the provisions of the Act. The Deputy Commissioner dropped the proceedings initiated in O.A. No. 19 of 1969, but dismissed the O.A. No. 30 of 1969 filed by the plaintiff. The plaintiff preferred an appeal in A.P. No. 100 of 1975 to the Commissioner to set aside the impugned order of the Deputy Commissioner. The appeal was dismissed. The plaintiff has therefore filed the suit under Section 70(1) of the Act to set aside the order of the first defendant viz. The Commissioner, H.R. & C.E. Board in A.P. No. 100 of 1975. There is no specific direction for the performance of the services in question in any particular religious institution. Therefore, it will not come under the purview of the Act. The plaintiff is a sole trustee and he prays a decree may be passed setting aside the order of the Commissioner.
3. The first defendant is his written statement contends as follows: The slab inscription dated 22.9.1982 embedded in old door No. 174, Govindappa Naicker Street has been clandestinely removed by de facto trustee Raghava Chetty and he is keeping it in his custody. He is also residing in the said building without paying any rent. The charities founded have not been performed. The intention of the founder had been nullified. The plaintiff contends that it is a private trust managed by the hereditary trustee and it is secular character. It is also contended by him that there was no provision for any kind of religious charity public or private and the trust was a failure on account of the vagueness and uncertainty, Deputy Commissioner heard both O.A. No. 19 of 1969 and O.A. No. 30 of 1969, simultaneously. The plaintiff has preferred an appeal against the dismissal of O.A. No. 30 of 1969 filed by him. The performance of Thathiarathanai in perumal temples in the City of Madras is a religious endowment or a specific endowment coming under the purview of the Act. The petition before the Deputy Commissioner and the appeal before the Commissioner were disposed of on merits. The suit is therefore liable to be dismissed.
4. On the above pleadings, the trial court has held that the suit endowment is of public nature connected with temples and the orders passed by the Deputy Commissioner and the Commissioner are perfectly valid and dismissed the suit.
5. Aggrieved over the same, the plaintiff has come forward with this appeal.
6. During the pendency of the appeal, the sole appellant died and his legal representative has been brought on record.
7. The suit has been filed by the plaintiff- appellant under Section 70 of the Act on account of the dismissal of his appeal to the Commissioner in A.P. No. 100 of 1975 against the order of the Deputy Commissioner in C.A. No. 30 of 1969 filed by him for a declaration that the suit charity does not constitute either as a specific endowment or a religious charity to attract the provisions of the Act and to enable the Deputy Commissioner to frame a Scheme holding that it is a private Trust. The learned Assistant Judge, City Civil Court, Madras has held that the property has been endowed by the donor for the performance of the service of feeding the pilgrims in Vaishnavite temples of Madras city and he is of opinion that the said endowment is of public nature connected with temples and therefore, it cannot be considered as a private endowment and the order passed by the Deputy Commissioner is perfectly valid.
8. The learned counsel appearing for the appellant-plaintiff would argue that the founder has not created any document of endowment and it is only in the partition deed, the premises bearing new No. 61, Govindappa Naicken Street, has been set apart for the performance of 'Thadhiaradhanai services' in Perumal temples located in Madras city and this endowment cannot be considered either as a religious endowment or as a specific endowment, since it is not specific in stating the name of the temple in which the charity is to be conducted and the time in which it has to be conducted, the period, duration etc. According to the learned Advocate for the Hindu Religious and Charitable Endowment, Ex. A-1 the partition deed shows that the property has been dedicated for the specific endowment of 'Thadhiaradhanai' charities. But, the learned counsel appearing for the appellant would contend that there is no such dedication of the property for any specific endowment. According to the learned counsel appearing for the appellant, unless the specific name of the temple in which the charity is to be performed is stated, the dedication cannot be said to be clear and it cannot be stated as to what has been stated in the partition deed, would show that there is a specific endowment. Specific endowment has been defined in Section 6(19) of the Act is as follows:
"specific endowment" means any property or money endowed for the performance of any specific service or charity in a math or temple, or for the performance of any other religious charity, but does not include an inam of the nature described in Explanation (1) to clause (17);"
The very wording in section shows that the property or money should be endowed for the performance of any specific service or a charity in a math or temple. In the present case, the recitals in the partition deed being to the effect that 'thadhiaradhanai services' is to be performed in Perumal temple located in Madras City, it cannot be stated that the endowment is specific and clear. It cannot be stated that the provisions of Section 6 (19) of the Act is attracted to the present case. In the decision reported in Arjunan alias R. Umamaheswaran v. The Idol of Sri. Kaliyuga Varadaraja Perumal, 1988 (2) L.W. 251, there is an indication for us to decide what is 'specific endowment'. It has been held in the above decision that 'specific endowment' means a property or money given in endowment for the purpose of performing a specific service or religious charity in a temple or math. In the present case, as we have already seen the document relied by the respondents does not specify the temple or math in which the specific service of 'thadhiaradhanai' is to be performed. It is very vague. Therefore, when we consider the point at issue in the light of law laid in the decision reported in Arjunan alias R. Umamaheswaran v. The Idol of Sri Kaliyuga Varadaraja Perumal, 1988 (2) L.W. 251, which gives us an indication as to what is 'specific endowment', it is seen that the suit charity cannot be considered as a specific endowment. The decision reported in R.M.AR. AR.RM. AR. Ramanathan Chettiar v. Commissioner, H.R and C.E., Madras, 1978 (91) L.W. 337, shows what is not a specific endowment as defined under Section 6(19). It was a case in which also, the endowment was not in a particular temple. The endowment was for the performance of Abhishekam in the Shiva Temples in the Country. A Division Bench of this Court has held that this endowment bristles with vagueness, the choice is left to the trustees for the time being of the endowment to choose the temple and the temple authorities are not even informed of such a performance of service, the found is controlled by the trustees and the abhishekam is performed in the name and Jenma Nakshatram of the donor and the members of the family and that the temple authorities cannot enforce the performance of the service because they are unaware of the fact that whether in one particular temple such abhishekam is going to be performed at all during the Mahasivarathri day. Their Lordships have held in the above decision that solitary clement that the members of the family of the donor arc vested with the discretion to utilise the funds for performing the abhishckam in any Siva temple and therefore choice would not make it a public endowment. In our case, the endowment is in the form of the property bearing old No. 174 and new No. 61, Govindappa Naicken Street. The charity to be performed is "thadhiaradhanai" in vaishnavat temples located in Madras City. The endowment suffers the same defects as in the case reported in R.M.AR. AR.RM. AR. Ramanathan Chettiar v. Commissioner, H.R. and C.E., Madras, 1978 (91) L.W.337, in that it is very vague and the choice is left to the trustees for the time being of the endowment to choose the Vaishnava temple. There is no evidence that any of the Vaishnava temple's have been informed of such a performance of 'Thadhiaradhanai service. The fund is controlled by the trustees. Atleast in the reported case, it is seen that the charity is to be performed in the name and Jenma Nakshatram of the donor. In the case on hand, it is not stated when the charity of "thadhiaradhanai" is to be performed. The endowment being very vague, the contention of the learned counsel appearing for the appellant tht it cannot be stated that it is a specific endowment as defined under Section 6(19) is well-founded.
9. The learned counsel appearing for the appellant has gone one step further and has argued that it is not stated that the endowment is exclusively for the Hindus and there are instances in which non-Hindus like Jains also visit Vaishnavite temples and it cannot be stated that the intention of the donor is feeding them also. The learned counsel has referred to a decision reported in Ponnuswamy Nadar v. State of Tamil Nadu, 1985 (1) M.L.J. 492, in which it has been held that in a case where endowment is created with the object of lighting of lights with oil in the memorial erected in memory of king George's Coronation to do water pandal charities in the month of chitrai every year on the occasion of Brahmothsavam of Arulmigu Meenakshi Sundareswarar Temple in Vilanthikulam Town and perform other dharmams as decided by the trustees the endowment cannot be said to be exclusively for Hindus. This proposition canvassed by the learned counsel appearing for the appellant is a far reaching one which need not be taken into consideration by us for the simple reason that the endowment in Ex. A-1 itself cannot be said to be a specific endowment since it is very vague. In that view, I am of opinion that the judgment and decree of the trial court that the order passed by the Deputy Commissioner and by the first defendant arc perfectly valid on the ground that the endowment cannot be deemed to be a private endowment is erroneous and is liable to be set aside.
10. In the result, the appeal is allowed setting aside the judgment and decree of the trial court and the suit is decreed as prayed for with costs throughout.