Madras High Court
The Idol Of Sri Bhoologanathaswamy vs N.Kanagasabapathy Pillai on 12 July, 2024
Rev.Aplc(MD)No.131 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 25.03.2024
Pronounced on : 12.07.2024
CORAM:
THE HON'BLE MR.JUSTICE K.K.RAMAKRISHNAN
Rev.Aplc(MD)No.131 of 2015
and
C.R.P(MD).Nos.508 and 509 of 2009
1. The Idol of Sri Bhoologanathaswamy
East Bouleward Road,
Represented by its Executive Officer,
East Bouleward Road,
Tiruchirappalli.
2. The Idol of Sri Renganathaswamy,
Srirangam
Represented by its Executive Officer,
Sri Renganathaswamy Devasthanam Office,
Srirangam,
Trichy. ... Petitioners/Petitioners
Vs.
1. N.Kanagasabapathy Pillai
2. N.Kannan Pillai
3. K.Ravi @ Krishnaswamy
4. K.Rajagopal
5. K.Selvaraj
6. K.Geetha Rani
7. S.Rajalakshmi ... Respondents/Respondents
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Rev.Aplc(MD)No.131 of 2015
PRAYER : This Review Application is filed under Order 47 Rule 1 and
Section 114 of Civil Procedure Code, to review the order dated
10.01.2011 made in C.R.P.(MD).No.233 of 2009 on the file of this Court.
For Petitioners : Mr.M.Saravanan
For Respondents : Ms.J.Anandhavalli
CRP(MD).No.508 of 2009:
1. N.Kanagasabapathi Pillai
2. K.Ravi alias Krishnaswami
3. K.Rajagopal
4. K.Selvaraj
5. K.Geetharani
6. S.Rajalakshmi ... Petitioners/Petitioners/Petitioners
Vs.
N.Kannan Pillai ... Respondent/2nd Petitioner/2nd Petitioner
PRAYER : Civil Revision Petition filed under Article 227 of the
Constitution of India, praying to set aside the order dated 04.02.2008
passed in I.A.No.3051 of 2001 in Trust O.P.No.3 of 1998 on the file of the
District Court, Trichy and allow this Civil Revision Petition.
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Rev.Aplc(MD)No.131 of 2015
For Petitioners : Ms.J.Anandhavalli
For Respondent : Ms.J.Maria Roseline
CRP(MD).No.509 of 2009:
1. N.Kanagasabapathi Pillai
2. K.Ravi alias Krishnaswami
3. K.Rajagopal
4. K.Selvaraj
5. K.Geetharani
6. S.Rajalakshmi ... Petitioners/Petitioners/Petitioners
Vs.
1. The idol of Sri Bhoologanathaswamy Kovil
Trichirappalli-8.
2. The Executive Officer,
The Idol of Sri Renganathaswamy Kovil,
Srirangam, Trichy. ... Respondents/Respondents/Respondents
3. N.Kannan Pillai ... Respondent/2nd Petitioner/2nd Petitioner
PRAYER : Civil Revision Petition filed under Article 227 of the
Constitution of India, praying to set aside the order dated 04.02.2008
passed in I.A.No.601 of 2007 in Trust O.P.No.3 of 1998 on the file of the
District Court, Trichy and allow this Civil Revision Petition.
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Rev.Aplc(MD)No.131 of 2015
For Petitioners : Ms.J.Anandhavalli
For Respondent : No appearance for R1
: Mr.M.Saravanan for R2
: Ms.J.Maria Roseline for R3
COMMON ORDER
This review petition filed by the Temple Authority to review the order passed in C.R.P.(MD).No.233 of 2009.
2.The Temple Authority filed this petition. The respondent herein has filed trust Original Petition in Trust O.P.No.3 of 1998 on the file of the learned District Judge Tiruchirappalli, seeking permission to exchange the charge of the A scheduled property mentioned in the partition deed dated 21.01.1921 into the B scheduled property to do religious charities in order to fulfil the executor of Will dated 15.09.1963.
3.The case of the respondent is as follows:
One Veeramalai Pillai entered into partition deed with the sons on 21-01-1921. In the said partition deed, A scheduled property was allotted to do charities by creating specific endowments to the Petitioner Temple 4/22 https://www.mhc.tn.gov.in/judis Rev.Aplc(MD)No.131 of 2015 and Ranganathaswamy Temple. For that purpose, they allotted 18 acres of land situated in the A scheduled property.
3.1.The said Will was reaffirmed by the custodian of said specific endowments by the Will dated 15.9.1963. That being situation, due to the insufficient income and also the income was not sufficient to do the specific endowments, number of respondents filed the petition as trust O.P.No.3 of 1998, claiming that to make change in the said Will i.e., seeking permission to use the income of 'A' Schedule Property instead of 'B' Schedule Property.
3.2.In the said petition, the learned District Judge framed two issues.
One is, even though the Temple Authority was not impleaded, the Temple Authority got himself impleaded and filed the objection. As per the objection, the petition was not maintainable. Further, earlier, the respondent filed the Trustee O.P.No.3 of 1998 seeking permission to sell the property. The same was not pressed and hence, the subsequent petition was filed in SR No.1050/97 and same was returned raising question of maintainability. The same was re-presented and same was not numbered. 5/22 https://www.mhc.tn.gov.in/judis Rev.Aplc(MD)No.131 of 2015 That being the situation, now he filed a petition seeking different relief to exchange properties which is not maintainable. The said exchange of the property is not permissible as per the contents of the deed, namely, partition deed. Further, the application is not maintainable and the various charities is directly mentioned in the word, especially Religious Endowment in Preview of HR and CE Act and hence, there was no jurisdiction to try the application as a trustee OP and the Commissioner of HR and CE alone has the jurisdiction to grant any relief, if any available. The said learned trial judge to consider the said objection, framed two issues.
3.3.Further, the trust originally created by the said Veeramalai Pillai is a public trust. Further, due performance of charity warrants removal of charge over the income of A scheduled property and the imposing of charge over the B Scheduled properties. So far as the first issue is concerned, the learned trial judge gave a finding that this is private one and not public endowment Hence, there was no requirement to approach the Hindu Religious Endowment Board to change the properties. Subsequently, on the second issue, the learned trial judge dismissed the 6/22 https://www.mhc.tn.gov.in/judis Rev.Aplc(MD)No.131 of 2015 same, stating that the same was not allowed on appreciation of the facts. Challenging the said finding that the said trust was private one and not a public endowment, the Temple Authority filed the CRP. This Court dismissed the same with liberty to approach the learned trial judge to file a review petition over the finding given by the District Court. Thereafter, the review petition was filed before the learned District Judge in I.A.No.1180 of 2003 in the Trustee O.P.No.3 of 1998. It is specifically pleaded that Section 34 of the trust act has no application to decide the character and nature of the trust, and the provision of the HR and CE Act alone would apply. The review application on other grounds was also raised, when there was clear mentioning of the “Ashtavathara Kattalai and idol of Pulanathaswamy”, and feeding of devotees during the Upaswamy Kuru Puja, and performing abhisheka through the first petitioner, all are “specific endowment or religious endowment”. Therefore, the finding is not in accordance with the appreciation of the facts and also against law. In the said circumstances, he seeks for the review. The same was dismissed by the learned District Judge by passing the impugned order in I.A.No.1180 of 2003. During the pendency of IA also, the respondent filed I.A.No.3051 of 2001 seeking permission to sell the properties and to 7/22 https://www.mhc.tn.gov.in/judis Rev.Aplc(MD)No.131 of 2015 deposit the amount. Both petitions were dismissed by the learned Judge, and the temple authority alone filed the revision before this Court challenging the said dismissal order.
4. In the revision, this Court has dismissed it holding that there was no partial dedication and hence, private trust alone was created, and hence, the finding of the learned trial Judge is in accordance with the law, and hence, learned trial Judge dismissed the civil revision petition. The learned trial judge and this Court have not considered the specific question that the applicability of Section 34 of the Trust act and also the specific endowments are the religious endowment on the basis of the law available on that day. Hence, the present review petition has been filed by the temple authority.
5. The learned counsel appearing for the temple authority submitted that from the reading of the contents of the documents dated 20.01.1921, it is clear that there is absolute dedication of the properties to the temple, and if any amount is available after spending the above case, only then the remaining amount can be appropriated by the obligator under Will. In the 8/22 https://www.mhc.tn.gov.in/judis Rev.Aplc(MD)No.131 of 2015 said circumstances, the main intention of the testators is to give the properties in discharge of the endowments. Hence, this is a clear case of religious endowments, and the learned trial judge and this Court is erroneous in not holding that there was no religious endowments, and there was apparent error on the appreciation of the contents of the document, and hence, he seeks to the interference in this review petition. Further, the learned judge has not considered the maintainability of the petition under Section 34 of Trust Act. As per 34 of the trust Act, the available law on that day, the petition itself is not maintainable, and hence, the same was not considered by the learned judge. Therefore, yet another apparent error is found on record.
5.1.The learned counsel for the respondent submitted that the application of 34 is not the matter to be adjudicated in this review petition, and hence, he seeks for the confirmation of the order passed by learned trial judge. The learned single judge of this court in this Civil Revision petition correctly has held that the dedication was not absolute and trust OP is maintainable.
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6. This Court considered the rival submission made on either side and also perused the records and the impugned order passed by the District Court as well as this Court.
7.This Court perused the pleadings of the respective parties and evidence adduced on the either side, precedents relied by them and more particularly, terms of partition deed dated 21.01.1921, and it is clear that the Veeramallai Pillai entered into a registered partition deed dated 21-01-1921. In the said partition, it is understandable that since there was a dispute between his sons and himself, a unanimous decision had been taken to dedicate the “A” scheduled property for doing the charitable activities. To appreciate the same, this Court extracts the following portion of the said document:
1921k; tUlk; [dthp khjk; 22 f;F rhpahd nusj;jphp tU ij kP jpUr;rpuhg;gs;sp Nfhl;il goa ge;Njfhdj; njUtpypUf;fk; itj;jpypq;fk; gps;is Fkhuh; nts;shs [hjp kspif tpahghuKk; kpuhRk; cs;s tPukiyg;gps;is 1. Nkw;gbêh; Nkw;gb njUtpypUf;Fk; Nkw;gbahh; kf;fs; Nkw;gb [hjp Nkw;gb njhopy; t.tP.rjhrptk; gps;is
2.Nkw;gb [hjp Nkw;gb njhopy;10/22
https://www.mhc.tn.gov.in/judis Rev.Aplc(MD)No.131 of 2015 t.tP.itj;jpypq;fk; gp;s;is 3.Nkw;gb [hjp Nkw;gb njhopy; t.tP.ehfnuj;jpdk; gps;is
4.Nkw;gb [hjp rhy;l; bg;b fk;kp~dh; Mgp];
fpsh;f;F t.tP.ey;yrhkp gps;is 5.Nkw;gb [hjp kspif tpahghuKk; kpuhRk; cs;s t.tP.eNlrk; gps;is 6.Mf ehq;fs;
MWNgh;fSk; nra;J nfhz;l ghfgj;jpuk;.
2.1n\bA+ypy; fz;l nrhj;jpd; tUk;
gbapypUe;J Nkw;gb nrhj;jpd; tph;j;jpahk;
rKk; Ntyp milg;Gk; jPh;it tifawh
rpyTfs; Nghf kPjp tUk; gbapypUe;J
vq;fspy; 1 yf;fkpl;lth; jd; Mas;
cs;stiuapy; jpUr;rp fPoGypthh;L Nuhl;
Nyhfehj Rthkp Nfhtpypy;
mh;j;j[hkfl;lis cgaj;jpw;F 1f;F &.30 .
0.0 k; Nkw;gb NfhtpYf;F jpdrhp tpsf;F jPg
rpyTf;F tU~Kk; 1 f;F &.15.00 = uq;fk;
rpj;jpiu uj jpUtpohtpy; gpujp tU~Kk; %d;W ehs; jz;zhP ; ge;jy;. Jh;kj;jpw;fhf &.60 k;
rpyT nra;J elj;jp tUfpwnjd;Wk; mg;gb
elj;jptUtjpd; gpujp gpuNah[dj;jpw;fhf
tU~k; 1f;F &.100 Nkw;gbahh; vLj;Jf;
nfhs;Sfpwnjd;Wk; Nkw;gb rpyTfs; vy;yhk;
Nghf kPjpahFk;. Rfytpjkhd tUk;gb
njhif tifawhf;fs; Nkw;gb khNd[h;
cs;gl vy;yh ghf];jh;fSk; rkghfkha;
gphpj;Jf; nfhs;Sfpwnjd;Wk; Nkw;gb 1
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Rev.Aplc(MD)No.131 of 2015
yf;fkpl;lthpd; [Ptjpirf;Fg; gpwF 3
yf;fkpl;lth; Nkw;gb jh;kq;fis Nky;fz;l
fz;b~d;fSf;F cs;gl;L %d;W tU~q;fSf;F
kl;Lk; elj;jp tUfpwnjd;Wk; Nkw;gb 3
tU~q;fSf;Fg; gpwF mg;NghjpUf;Fk;
ghf];jh;fs; xd;W Nrh;e;J Nkw;gbahh;fspy;
vtiuahtJ khNd[uhf Vw;gLj;jp tu
Ntz;baJ.
,e;j jh;knrhj;jpy; milAk; iul;il (right) vt;tpj guhjPdKk; nra;af;$lhJ
8. From the perusal of the above material portion of the documents, it is clear that the specific endowments were created and the main intention of the executor is to create absolute divestiture of the property to the temple to do religious charities. It is also framed as “Specific Endowments” as per law laid down by this Hon'ble Supreme Court. The finding of the learned judge, in this case is against the law on the subject. The Hon'ble Supreme Court in the case of the Idol of Sri Renganathaswamy, Vs. J.Sriram and others reported in 2023 2 LW 577, has held as follows:
22.7.1.The Hon’ble Supreme Court in M.R.Goda Rao Sahib Vs. State of Madras reported in AIR 1966 SC 653 held as follows:
“By the instrument the settlors certainly 12/22 https://www.mhc.tn.gov.in/judis Rev.Aplc(MD)No.131 of 2015 divested themselves of the right to receive a certain part of the 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.” 22.7.2. The said principle of that case that the deed which provided for a charge on the properties for the payment of money amount to divestment reiterated by the latest Hon’ble three member bench of Supreme Court in 2019 (8) SCC 689 [M.J.Thulasiraman v. Hindu Religious & Charitable Endowment Admn.,] with further elaboration of principle held that the rock inscription made in the year 1834 with specific clause of utilization of certain amount for feeding of Brahmins during the festivals of Thiruvottiyur and Mylapore and for other charity expenses amount to a clear divestment of the right to receive a certain part of income and clearly amount to specific endowment in the following paragraph :-
“ …Following our holding that the rock inscription provides for a religious charity, it is sufficient to show that money has been endowed 13/22 https://www.mhc.tn.gov.in/judis Rev.Aplc(MD)No.131 of 2015 for the performance of the same for it to constitute a specific endowment under the Act. …………."
22.7.3. The said principles further elaborated by Hon’ble Supreme Court in 2020 (17) SCC 96 [Sri Renganathaswamy v. P.K. Thopulan Chettiar, Ramanuja Koodam Annandhana Trust] and held that whenever a deed created an obligation on the executant’s descendants to fund the charitable activities out of the income of the property dedicated, only presumption is that he had a clear intention to divest himself and his descendant of the property and endowed it for continuation of charitable activity with complete destiture and relevant portion as follows:
“16. ....that, “the settlor purchased the punja land mentioned in the schedule of property… for the performance of charity work in reference to Sri Renganathanswamy sanctum”. The property outlined in the schedule of the deed of settlement is described as, “property allotted for charity work”. With respect to the legal heirs, the deed of settlement creates an obligation on 14/22 https://www.mhc.tn.gov.in/judis Rev.Aplc(MD)No.131 of 2015 the settlor's legal heirs to continue the charitable activities at the suit property out of their business incomes. The settlor had a clear intent to divest himself and his legal heirs of the property and endow it for the continuation of the charitable activities at the suit property. The purpose of the endowment was to carry on charitable work. The deed of settlement obligates the legal heirs to continue the charitable activities at the suit property” 22.7.4. In result, scanning of the various parts of Ex.A6 Vyvastha Pathram, it is clear that schedule of properties are given; various Poojas and charities (Dharmam) have mentioned;
executant clearly obligated to utilize the whole income with complete dedication for religious purpose without any ambiguity of divestiture of title to a temple and complete denouncement of his title over the property. So, in all aspects, acceptance of the case of the first respondent by the court below that there was no divestiture of ownership with temple authority and the utilisation of money alone dedicated without divestment and grandsons got title through Ex.A6 and devolved on first respondent by inheritance is erroneous and the same was not consonance with 15/22 https://www.mhc.tn.gov.in/judis Rev.Aplc(MD)No.131 of 2015 the principle laid down the Hon'ble Supreme Court stated above.
The learned judge of this Court had relied the judgment of the Hon'ble Supreme Court in the case of M.Dasaratharami Reddi Vs. D.Subba Rao reported in AIR 1957 SC 797. Even in the said judgment, the Supreme Court has clearly stated that to decide the partial or the complete dedication, the intention of the testator is to be considered. Even the said judgment is applicable only to decide the specific clause of the trust in the deal, but the document before us is under the “partition deed”. Therefore, the principle in M.Dasaratharami Reddi Vs. D.Subba Rao reported in AIR 1957 SC 797 is applicable to trust and the same is not applicable to this case. Here, there was complete divestiture. As per the terms without any alienation of the properties, the obligator has to do charities mentioned. From that, it is clear that the entire income from the property after paying the revenues charges which remains available can be used for the temple festival. If anything is available, then only it can be appropriated by the persons interested for the doing the charity activities. As per the terms of the partition deed dated 21.01.1921, obligation to do the religious charities are created. The obligators are the respondents. They never treated either 16/22 https://www.mhc.tn.gov.in/judis Rev.Aplc(MD)No.131 of 2015 Trustee or beneficiary. They are obligated to discharge the same. Therefore, it is not partial dedication and it is the absolute dedication and complete divestiture of the property for doing the specific endowments. Hence, this Court considering the march of law holds that this is the specific endowment and hence, the finding of the learned judge is not in accordance with law
9. Apart from that, the learned trial Judge and also this Court have not considered the specific contention raised before the review petition that Section 34 of Trust Act application is not maintainable, on the basis of the precedent of this Court in the case of A.Changi and others Vs. Jagannath reported in 1997 3 LW 537, has held as follows:
6. Under Section 34 of the Indian Trusts Act, any trustee may, without instituting a suit, apply by petition to a Principal Civil Court of original jurisdiction for its opinion, advice or direction on any present questions respecting the management or administration of the trust property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal.17/22
https://www.mhc.tn.gov.in/judis Rev.Aplc(MD)No.131 of 2015 The said ratio of the learned Single Judge was reaffirmed by the Hon'ble Division Bench of this Court in the case of A.R.R.Charitable Trust Vs. Dr.Arcot Lakshmanaswami Health Care Trust and others reported in 2024 (1) CTC 316 on reference.
10.The learned trial judge has not considered the same and this Court also not considered the same and hence, the petition filed under Section 34 is not maintainable and in this aspect, the non consideration of the said ground amounts to apparent error. and the petitioner's case is come under within the following parameter laid down by the Hon'ble Supreme Court to entertain the review petition in the case of Kamlesh Verma v. Mayawati, reported in (2013) 8 SCC 320 at page 333 20.1.When the review will be maintainable:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
11.In result this Court finds that there is apparent error on the face 18/22 https://www.mhc.tn.gov.in/judis Rev.Aplc(MD)No.131 of 2015 of the record, which warrants interference in this review petition. hence, the order of this Court in C.R.P.(MD).No.233 of 2009 dated 10.01.2011 is liable to be set aside.
12. In view of the above discussion and finding that there is absolute dedication with divestiture property and the endowment is specific endowment, the respondent's prayer in I.A.No.601 of 2007 and I.A.No.3051 of 2001 are liable to be declined. Hence, the order of the learned trial Judge, in I.A.No.601 of 2007 and I.A.No.3051 of 2001, are confirmed.
13.Accordingly, this Review Application is allowed in the following terms:
13.1. Order of this Court in C.R.P.(MD).No.233 of 2009 on 10.01.2011 is hereby set aside.
13.2. The finding of the learned District Judge, Tiruchirappalli in Trust O.P.No.3 of 1998 dated 18.06.2001 that the Trust is a private one and not a Public Endowment is hereby set aside.
13.3. As squeal, the order in I.A.No.1180 of 2003 in Trust O.P.No.3 of 19/22 https://www.mhc.tn.gov.in/judis Rev.Aplc(MD)No.131 of 2015 1998, on the file of Principal District Court, Tiruchirappalli dated 04.02.2008 is set aside and the prayer of the temple authority in I.A.No. 1180 of 2003 is hereby allowed.
14.In view of the above order in the review application, this Court finds no merit in C.R.P.(MD).Nos.508 and 509 of 2009, and hence, the civil revision petitions are liable to be dismissed.
15.Accordingly, these civil revision petitions are dismissed by confirming the order dated 04.02.2008 passed in I.A.No.3051 of 2001 and I.A.No.601 of 2007 in Trust O.P.No.3 of 1998, on the file of the District Court, Trichy. No costs.
12.07.2024 NCC : yes/No Index : yes/No Internet : yes/No vsg 20/22 https://www.mhc.tn.gov.in/judis Rev.Aplc(MD)No.131 of 2015 To
1.The Principal District Judge, Tiruchirappalli.
2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.
21/22 https://www.mhc.tn.gov.in/judis Rev.Aplc(MD)No.131 of 2015 K.K.RAMAKRISHNAN,J.
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