Madras High Court
Arulmighu Mahalakshmi Temple vs M.S.Srinivasa Raghavan on 7 July, 2004
Author: P.D.Dinakaran
Bench: P.D.Dinakaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07/07/2004
CORAM
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
AND
THE HONOURABLE MR.JUSTICE N.KANNADASAN
O.S.A.No.86 of 2004
and
C.M.P.No.7307 of 2004
Arulmighu Mahalakshmi Temple
rep.by the Executive Officer ... Appellant
-Vs-
1.M.S.Srinivasa Raghavan
2.M.S.Kalyanaraman
3.Sri Mahalakshmi Trust
rep.by M.S.Balaji, Trustee. ... Respondents
Prayer: Appeal against the order dated 31.12.2003 in Application No.5338 of
2000 in C.S.No.703 of 1999 on the file of the original side of this Court.
!For Appellant :Mr.R.Bharanidharan
^For Respondents :Mr.Sathish Parasaran (for caveator)
--------------
: JUDGMENT
(Judgment of the Court was delivered by N.KANNADASAN, J.) The above appeal is filed as against the order dated 31.12.2003 in Application No.5338 of 2000 in C.S.No.703 of 1999 passed by the learned single Judge.
2. The respondents herein have filed C.S.No.703 of 1999 under Section 92 of the Civil Procedure Code seeking permission to dispose of the suit schedule mentioned property by entering into joint a development agreement and pay off the liabilities of the trust. The suit is filed contending that the subject matter of the suit absolutely vests with the trust, and the respondents, who are the trustees, are entitled to deal with and dispose of the same in the best interest of the trust. It is further contended therein that the trust property is secular in character, and the same can be used for secular purposes, and it is outside the purview of the Tamil Nadu Hindu Religious and Charitable Endowment Act (hereinafter called as the Act). It is further contended that the respondents/plaintiffs have raised a dispute under Section 63(f) of the H.R. & C.E. to declare the property dedicated under the deed of settlement as a secular property, and the Joint Commissioner in O.A.No.3 of 1996, by order dated 15.11.1998, held that the property dedicated under the deed of settlement is for secular purposes which squarely comes under the secular character and as such, the temple cannot have any objection for the grant of permission. The learned single Judge of this Court by considering the evidence available on record, by order dated 24.4.2000 granted permission to the respondents/plaintiffs to dispose of the property.
3. The appellant herein filed application No.5338 of 2000 to set aside the order made in C.S.703 of 1999 dated 24.4.2000 contending that the permission granted is not in accordance with law. The learned Judge, by order dated 31.12.2003, dismissed the said application against which the above appeal is filed.
4. The learned counsel for the appellant contended that the property in question cannot be termed as 'secular' in character and the order dated 15.11.1998, passed by the Joint Commissioner, H.R.&C.E. Department under Section 63 of the Act, has not become final. The learned counsel further contended that the said order is under challenge by way of an appeal filed under Section 101 of the Act by the temple authority as well as an another worshipper in A.P.No.30 of 1999 and the same is pending. Even the recitals of the trust deed do not disclose that the property in question is secular in nature, as held by the learned Judge and accordingly the application has to be allowed.
5. Per contra, the learned counsel for the respondents contended that the intention of the applicant/appellant herein is not bona fide one and when the permission was sought for to dispose of the property, neither the worshipper nor the temple authority have resisted the said application. In fact, a Civil Suit was filed in O.S.No.2972 of 20 00 on the file of the City Civil Court, Madras, seeking for a permanent injunction and when an Interlocutory Application was filed in I.A.No.7826 of 2000, the matter was argued at length and the order passed by this Court on 24.4.2000 was marked as document No.1 and when the said application came to be dismissed on 7.9.2000, the appellant herein by engaging the very same counsel, who represented the plaintiff in the said suit, has filed the present application and the copy of which was sought to be served upon the respondents and several facts have been suppressed. The learned counsel for the respondents further contended that initially another suit was filed in O.S.No.5262 of 199 4 by Archakas who were in occupation of the property and at the instance of the respondents, the said suit came to be withdrawn. It is also contended that inasmuch as the applicant has approached the Commissioner, H.R. & C.E. Department under Section 101 of the Act, the applicant cannot pursue a parallel remedy by way of filing the above application, unless and until the order of the Joint Commissioner dated 16.11.1998 is set aside. It is also contended that as the very object of the trust deed is only for secular purpose and as such, the property in question cannot be treated that it is for religious purpose.
6. We have considered the rival contentions of the learned counsel appearing for the parties.
7. The point for determination in this appeal is as to whether the property in question is secular in nature and as such the order of the learned single Judge is correct or not?
8. In the light of the evidence available on record, it is not disputed that the Joint Commissioner for H.R.&C.E. Department as early as on 16.11.1998, pursuant to the directions of this Court in W.P.No.18 720 of 1997 has passed an order declaring that the property in question is of secular character. Though it was contended that an appeal is filed before the Commissioner for H.R.&C.E. Department, the Department has not passed any orders as on today, setting aside the order of the Joint Commissioner. It is not disputed that the Joint Commissioner has passed an order in terms of Section 63 of the Act, while discharging his statutory duties. The appellant has not produced any materials to show that the said order came to be passed contrary to the provisions of Section 63 of the H.R.&C.E. Act. Inasmuch as the said statutory authority has already taken the view that the property is secular in nature, it is not known as to how the executive authority functioning under the control of the very same Joint Commissioner for H.R.&C.E. Department has independently taken a decision to file an application to withdraw the permission already granted by this Court. That apart, no material is placed before us that the learned Judge has violated the provisions embodied under Section 92 of the Code of Civil Procedure Code while granting permission by order dated 24.4.2000. Equally, the applicant/appellant cannot raise a plea that the Civil Suit is not maintainable in view of the principles laid down by the Apex Court in Ramesh Chand Ardawatiya vs. Anil Panjwani (2003 (7) SCC 350) wherein it is held as follows:-
"Where there is a special tribunal conferred with jurisdiction or exclusive jurisdiction to try a particular class of cases even then the civil court can entertain a civil suit of that class on availability of a few grounds. An exclusion of jurisdiction of the civil court is not to be readily inferred."
Thus we are proceeding on the footing that the learned Judge is entitled to entertain the civil suit while considering the grant of permission as sought for by the respondents.
9. An argument was advanced by the learned counsel for the appellant that if the suit property is held to be a secular in nature, the temple authority would not have any right to oppose the grant of permission to deal with the property in question. If that is so, it would be necessary for us to look into the trust deed dated 7.6.1972 and the deed of settlement dated 7.8.1979 which are relevant for the purpose of deciding the issue. Admittedly, the property concerned forms the subject matter of the deed of settlement referred to above. A perusal of the trust deed discloses that the trust has both religious and secular objects to achieve. The religious objects include construction of a temple for goddess Mahalakshmi; carrying out such incidental and ancillary activities for the construction of the Temple and completion of the same. The secular object of the trust is "to open, establish, maintain and run educational institutions or to donate for such institutions, which work for dissemination of knowledge, education and culture, particularly of Indian philosophy with special reference to Hindu Dharma and phases of Hindu Culture".
10. A perusal of the secular objects would show that it is neither religious, nor sacred nor spiritual. A Division Bench of this Court in The State of Madras vs. Seshachalam Chettiar Charities (1960 (2) MLJ 591) held that unless the benefit of the endowment is confined wholly to Hindus, it would not be a charitable endowment as defined under the H.R.&C.E. Act. The said judgment has been followed by another Division Bench of this Court in Ponnuswamy Nadar vs. State of Tamil Nadu (1985 (2) MLJ 492).
11. In the light of the above decisions, the relevant recitals of the trust deed has to be looked into which are extracted as hereunder:-
" (ix) Rendering monetary help to deserving persons or families for the performance of marriage and other religious functions and rites.
(x) To provide medical relief for the poor including construction of hospitals, equipments, upkeep and maintenance of dispensaries, nursing homes, convalescence homes and asylums for orphans, aged, small and blind, injured and destitutes."
A perusal of the above recitals makes it clear that the property in question cannot be treated as non-secular in character, inasmuch as the object of the trust itself is to ensure medical relief for poor, construction of hospitals, construction of ashrams, performance of marriages etc., apart from other religious functions.
12. In the light of the recitals contained in the trust deed, we have no hesitation to hold that the trust is not exclusively made for religious purpose, but it has secular objects as well.
13. While construing the recitals contained in the trust deed as well as the deed of settlement, as held by the Constitution Bench of the Supreme Court in its judgment in Ramkishorelal and Another vs. Kamalanarayan (AIR 1963 SC 890), it has to be borne in mind that the golden rule of construction is to ascertain the intention of the parties by perusing the entire document and also to take into account the circumstances under which the particular words were used.
14. Similarly, the Apex Court in its decision rendered in Naramadaben Maganlal Thakker vs. Pranjivandas Maganlal Thakker ((1997 ) 2 SCC 2 55) has held that the document has to be read harmoniously as a whole giving effect to all the clauses contained in the document which manifest the intention of the person who executed the document.
15. In the light of the above principles, if the recitals of the trust deed as well as the deed of settlement are examined, it is clear that the object of the trust is not only for religious purposes, but also to carryout other charitable purposes, and the property in question was settled to carryout the other charitable purposes. Accordingly, there is no hesitation for us to hold that the property in question is secular in character.
16. Even though the temple had been declared as a public temple, there is no legal bar for the trust to own a temple declared to be a public temple with property attached to it and also possess the property which are not religious, but are secular in character. In fact, the property in question was settled by a settler under the settlement deed referred to supra by a third party in favour of the trust called 'Sree Mahalakshmi Trust'. In the deed of settlement, it is specifically mentioned therein that the settlee shall construct a building or buildings and run educational institutions and other charitable institutions as contemplated in the trust deed. Thus, the settlement deed itself contemplates a specific object to be achieved by the trust viz., for the construction of a building or buildings and to run educational institutions and other charitable institutions.
17. In the backdrop of the above factual aspects, the learned Judge has concluded as follows:-
"(i) The Trust has both religious and secular objects;
(ii) The Executive Officer will have no role to play when the trust decides to achieve its secular objects;
(iii)The settlement of properties in favour of the trust under the settlement deed referred to earlier is solely with a view to enable the trust to achieve its secular objects and therefore, the beneficiary - the Trust, cannot utilise the properties for achieving any of its religious objects;
(iv) The permission sought for before this Court and granted on 24.4.2000 is only to enable the plaintiffs to reach its secular objects;
(v) As the relief asked for in the suit is only with regard to secular objects of the Trust, the Hindu Religious and Charitable Endowments Act would not apply and consequently, the Executive Officer would not have jurisdiction or right to oppose the request of the plaintiffs.
(vi) There is no legal bar for a public religious trust to own a temple declared to be a public temple with properties attached to it and also to own properties for its secular objects.
(vii) In view of my finding that the civil court has jurisdiction to go into the character of the properties as it is essential in this case to decide the controversy between the parties and since the properties secular in nature are attempted to be parted with to achieve the secular goals of the trust, the various materials stated to have been suppressed by the plaintiffs before this Court earlier would not have any impact on the decision making process of this Court."
18. The reasoning of the learned Judge, in our opinion is perfectly valid in law and based on material evidence on record. We do not have any hesitation to hold that the property in question is secular in nature and if that is so, as conceded by the learned counsel for the appellant, the temple cannot pursue the application to set aside the order dated 24.4.2000 in the suit.
19. For the reasons stated above, the appeal is dismissed.. However, there will be no order as to costs. Consequently, connected CMP is also dismissed.
Index : Yes KST To
1.The Sub-Assistant Registrar (Judicial), High Court, Chennai.
2.The Sub-Assistant Registrar (Original Side), High Court, Chennai.