Kerala High Court
Babu vs Ashokan on 23 February, 2016
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
"CR"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
MONDAY, THE 30TH DAY OF JANUARY 2017/10TH MAGHA, 1938
OP(C).No. 2401 of 2016 (O)
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AGAINST THE JUDGMENT IN OS 939/2013 of SUB COURT, CHAVAKKAD
DATED 23-02-2016
PETITIONERS/DEFENDANTS:
----------------------
1. BABU, AGED 43 YEARS, S/O.VALLASSERY VELAYUDHAN,
KARNAMKOTTU BAZAR, THAIKKAD VILLAGE, NENMINI DESOM P.O.,
CHAVAKKADA TALUK, PIN-680 104.
2. SURESH K., AGED 40 YEARS,
S/O.KANNEPADATH VELAYDHAN, MANTHALA VILLAGE/DESOM,
CHAVAKKADA P.O/TALUK, PIN-680 506.
BY ADV. SRI.RAJIT
RESPONDENTS/PLAINTIFF & 1ST DEFENDANT & DEFENDATNS 5 TO 17:
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1. ASHOKAN, AGED 64 YEARS,
S/O.VALLASSERY NARAYANAN, THAIKKAD VILLAGE, GURUVAYUR
DESOM/P.O., CHAVAKKAD TALUK-680 101.
2. SREEDHARAN, AGED 72 YEARS,
S/O.VALLASSERY NARAYANAN, THAIKKAD VILLAGE, GURUVAYUR
DESOM/P.O., CHAVAKKAD TALUK-680 101.
3. CHANDRU, AGED 65 YEARS
D/O.VALLASSERY NARAYANAN,W/O.KANDIRUTHI SUSEELAN,
PUTHOOR DESOM, KAIPARAMBU AMSOM, THRISSUR TALUK.
4. KAMALA, AGED 62 YEARS,
D/O.VALLASSERY NARAYANAN, W/O.NJEZHUVANGAD SUBRAMANIAN,
PERUVALLUR AMSOM/DESOM, CHAVAKKAD TALUK.
5. VALSALA, AGED 60 YEARS
D/O.VALLASSERY NARAYANAN, W/O.KARIPPOTTU SREEDHARAN,
ANJOOR AMSOM/DESOM, THALAPPILLY TALUK.
6. RATHNA, AGED 58 YEARS,
D/O.VALLASSERY NARAYANAN, W/O.OOTTUMADATHIL BALAN,
GURUVAYUR AMSOM/DESOM, CHAVAKKAD TALUK.
7. PREMAN, AGED 46 YEARS,
S/O.VALLASSERY MADHAVI AND OOTTUMADATHIL BALAN,
GURUVAYUR AMSOM/DESOM, CHAVAKKAD TALUK.
8. PREMA, AGED 39 YEARS,
D/O.VALLASERY MADHAVI, W/O.POOVANTHARA VINOD, PULLOOR
DESOM, PERUVALLUR AMSOM, CHAVAKKAD TALUK.
9. KARTHIAYANI, AGED 70 YEARS
W/O.MALLASSERY RAGHAVAN, GURUVAYUR DESOM, THAIKKAD
VILLAGE, CHAVAKKAD TALUK.
10. SANTHA AGED 42 YEARS
W/O.PANNIYATH PRABHAKARAN, GURUVAYUR DESOM, THAIKKAD
VILLAGE, CHAVAKKAD TALUK.
11. SURESHBABU, AGED 50 YEARS
S/O.VALLASSERY RAGHAVAN, GURUVAYUR DESOM, THAIKKAD
VILLAGE, CHAVAKKAD TALUK.
12. SHEEJA, AGED 48 YEARS
W/O.ERIYIL SUDHAKARAN, IRINGAPRAM AMSOM/DESOM, CHAVAKKAD
TALUK.
13. SHEELA SURENDRAN, AGED 46 YEARS,
W/O.MANTHRAMKOT SURENDRAN, PERAKAM DESOM,
CHAVAKKAD AMSOM/TALUK.
14. SHEEBA SUNILKKUMAR, AGED 44 YEARS,
W/O.MOOTHEDATH SUNILKUMAR, KARAKKAD DESOM, GURUVAYUR
VILLAGE, CHAVAKKAD TALUK.
15. SHEENA SAJU, AGED 42 YEARS,
W/O.KANNOTIL SAJU, GURUVAYUR AMSOM, DESOM,
CHAVAKKAD TALUK.
R1 BY ADV. SRI.M.R.RAMESH
R1 BY ADV. SMT.A.N.SUJATHA
R1 BY ADV. SMT.M.R.REENA
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14-10-2016,
THE COURT ON 30.1.2017 DELIVERED THE FOLLOWING:
OP(C).No. 2401 of 2016 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1. TRUE COPY OF THE PLAINT IN OS NO.939/2013.
EXT.P2. TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE
PETITIONERS PLAINT IN OS NO.939/2013 OF SUB COURT,
CHAVAKKAD.
EXT.P3. TRUE COPY OF THE ORDER DATED 23/2/2016 IN OS
NO.939/2013 OF SUB COURT, CHAVAKKAD, THRISSUR.
RESPONDENTS' EXHIBITS: NIL
-----------------------
/TRUE COPY/
P.S TO JUDGE
cl
"CR"
K. RAMAKRISHNAN, J.
.......................................
O.P.(C).No.2401 of 2016
........................................
Dated this the 30th day of January, 2017.
JUDGMENT
Defendants 2 and 3 in OS.No.939/2013 on the file of the Sub Court, Chavakkad has filed this petition challenging Ext.P3 order passed by the Court below under Article 227 of the Constitution of India.
2. It is alleged in the petition that the first respondent herein filed Ext.P1 suit for declaring the co-ownership right of the plaintiff over plaint A and B schedule properties and for injunction restraining defendants 2 and 3 or their men from trespassing into the plaint A and B schedule properties and preventing the plaintiff from conducting the poojas in the temple in the plaint schedule properties and restraining the first defendant from alienating plaint A and B schedule properties to defendants 2 and 3 or any other person or doing anything meddling with the right of the plaintiff over plaint A and B schedule properties. It is alleged in the plaint that plaintiff, defendants 1, 4 to 8 are siblings and defendants 9 and 10 are the children of their deceased sister. The second defendant is a distant relative and a member of the Tharavadu of the plaintiff and third defendant is the person helping the first defendant in the temple. Plaint A and B schedule properties were jointly kept O.P.(C).No.2401 of 2016 2 in common for the plaintiff and defendants 1, 4 to 8 and their sister who is the mother of defendants 9 and 10 for the purpose of administration of the temple as per Registered Will No.6 dated 30.1.1989 of Sub Registrar Office, Chavakkad by their predecessor Vallassery Narayanan and they were in joint possession of plaint A and B schedule properties for the purpose of administration of the temple. After the death of Narayanan, S/o. Vellassery Pankurakutty they were managing the properties for the purpose of administration of the temple. The property was part of 21 cents in R.Sy.No.156/6 of Thykkad village excluding 10 cents given for kudikiddapu and 3 cents set up for a temple and this is shown as plaint A schedule property. Another 8 cents of property was also set apart for the administration of the temple, which is shown as plaint B schedule property and plaint A and B schedule properties are lying as a single plot bounded by compound wall. The plaintiff's father Narayanan, for the purpose of doing poojas and worship, constructed a temple in 1970 and the plaintiff's father and his family members were doing poojas and lighting lamps in the temple and the plaintiff, defendants 1, 4 to 8, 9 and 10 are in joint possession of the same. Defendants 2 and 3 have no right over plaint A and B schedule properties. The property is having an approximate value of Rs. 22 lakhs. The first defendant is trying to sell the same to defendants 2 and 3 O.P.(C).No.2401 of 2016 3 without the consent and knowledge of other members. When the plaintiff went to the property on 10.12.2013 and enquired about the same with the first defendant, he had threatened him and he had also claimed that the paint B schedule property belongs to him exclusively. So that prompted him to file the suit seeking the above reliefs.
3. Court fee was paid under Section 28 of the Kerala Court Fees and Suit Valuation Act (hereinafter referred to as 'the Act') namely a fixed court fee of Rs.200/- mentioned therein.
4. Defendants 2 and 3 entered appearance and filed written statement contending that the suit is not maintainable. It was a frivolous and vexatious suit filed by the plaintiff and he had no locus standi to file the suit as well and the same has to be rejected. They also contended that the property worth more than Rs.22 lakhs but the court fee has been paid only Rs.200/- and the court fee paid is not proper and the court fee has to be paid on the market value of the property and the question regarding court fee has to be decided as a preliminary point. It is also contended that the first defendant is behind the suit. He filed OS.No.1128/2013 before the Munsiff Court, Chavakkad against these defendants and also filed I.A.5061/2013 for interim injunction which was dismissed by the Munsiff with cost of the respondents in that case. So in order to harass these defendants O.P.(C).No.2401 of 2016 4 and also take over possession and management of Vellassery temple that the suit has been filed through the plaintiff as an experimental basis in collusion with the plaintiff and other defendants. It is also contended in the written statement that on the basis of the description, the plaint schedule property is not identifiable. The entire property having an extent of 21 cents is lying within the compound as a single plot and the Vellassery Bhagavathy Temple and its sub temples of Vishnumaya, Mutthappan, Kappiri, Hanumanthara and Nagaprathishta, Vanadurga, Nadappura, Thidappilly and office buildings, the temple well and another well are all situated in a scattered manner in the 21 cents of property. Vellassery Revaunni, as per Sale Deed No.144/2002 of Sub Registrar Office, Chavakkad, purchased the property in respect of 10 cents of property and this property is also included in the 21 cents and all the constructions mentioned above are situated in the 10 cents of property purchased by Ravunni. Even prior to that, it was under the kudikidappu right of one Vellassery Lekshmi and there was a gate provided in the compound wall for entry to the plot from the road. There was no road facility from the mud road to the temple earlier. As permitted by Ravunni, through the property purchased by him, the present way was provided to the temple and two third of the way belongs to Ravunni which cannot be identified from the plaint O.P.(C).No.2401 of 2016 5 schedule property. The allegation that the second defendant is a distant relative of the plaintiff is not correct and hence denied. In fact, he is a close relative of plaintiff and other defendants and the third defendant is the priest of the Vellassery temple and not a person helping the second defendant. The allegation that plaint A and B properties belonged to father of plaintiff and defendants 1, 4 to 8, the predecessors of defendants 9 and 10 and it was given to them jointly by their father for the purpose of the temple administration as per the Will is not correct and hence denied. It was never obtained as a co-ownership property by them and they have never been in possession of the property as well. The allegation that the father of the plaintiff Narayanan had constructed a temple in 1970 and Narayanan and his family members were lighting the lamps and conducting the poojas etc and after his death, the plaintiff and defendants 4 to 10 obtained the same as co-ownership and defendants 2 and 3 have no right over the property is not correct and hence denied. The allegation that the first defendant is trying to alienate the property to defendants 2 and 3 by getting huge consideration and when he went to the property on 10.12.2013 to enquire with the first defendant, he prevented him from entering the property and claimed exclusive right over plaint B schedule property and threatened that if he comes there, he will break his legs etc is not O.P.(C).No.2401 of 2016 6 correct and denied and these allegations were made only for the purpose of creating a cause of action for filing the suit. The plaintiff or the other defendants have no right over the plaint schedule property. The entire right to manage the properties is vested with the second defendant and he is managing the same for the last five years. He is taking the collections in the coffers (bhandaram) and the income from the temple and keeping the keys of the buildings and this was never in the possession of the plaintiff or his siblings. But he is not preventing them from doing their worship in the temple. None had prevented them from conducting worship as well. The entire property originally belonged to Vellassery Kundu and he was a God fearing person and long ago he had constructed a small temple in which he had installed the statues of Bhagavathy, Vishnumaya, Muthappan, Kappiri, serpents etc. Out of this property, plaint A schedule property having an extent of 3 cents was dedicated to this purpose. During the life time of Kundu, he himself was managing the temple and its properties and it was known as Vellassery temple. The festival was also conducted in the temple annually. After the death of Kundu, Vellassery Thorayakutty was managing the temple and its properties. Pankurukutty, the brother of Thorayakutty predecessed him. Thorayakutty is the father of the grandfather of the second defendant namely Sankarankutty. O.P.(C).No.2401 of 2016 7 Pankurukutty's son is the father of plaintiff, Narayanan. After the death of Kundu and Pankurukutty, except the plaint schedule properties, the other properties were in the joint possession of Thorayakutty and Narayanan. During 1941, some family decisions were taken and on the basis of the same, Thorayakutty had executed release deed No.1584/1941 and it was omitted to be mentioned regarding the 3 cents of property which has already been dedicated for the temple. But even after that document, the temple and the 3 cents of properties which is shown as plaint A schedule was under the management of Thorayakutty. Due to his old age, the temple administration was done by his son Sankarankutty and thereafter he was in possession and enjoyment of the same. Sankarankutty's male children Velayudhan and Ravunni were working abroad, but Velayudhan used to come once in 28 days and Ravunni used to come occasionally and due to old age of Sankarankutty, administration of the temple was managed by Velayudhan and Ravunni. Thereafter Velayudhan had come to the native place after winding up his activities in abroad in 1995 and thereafter he was managing the properties exclusively. In 2006 Ravunni also came to the native place and thereafter from 2012 onwards said Ravunni and Velayudhan were spending their own money for developing the temple and also doing renovation work of the temple and constructed small O.P.(C).No.2401 of 2016 8 temples to the upadevadas namely Vishnumaya, Muthappan and Kappiri and reconstructed the Hanumanthara, Nagaprathishtas and Vanadurga. They also put up a gate in the compound wall and the renovation work was completed in 2013 and Ravunni had purchased some portion of the land as per Document No.144/2002 and he had constructed a building which was permitted to be used as office of the temple and another building was constructed for the kitchen of the temple and a portion of the nadappura of the temple is situated in that property. Since he was suffering from some disease, temple management was entrusted to the second defendant, who is the son of Velayudhan in 2008 and thereafter he has been in possession and enjoyment of the property and managing the same. The allegation that 3 cents and 8 cents of property shown as plaint A and B schedule properties were in the joint possession of the plaintiff and defendants 4 to 10 as per Will No.6/1989 executed by Narayanan is not correct and hence denied. Even as per the contents of the Will, it is clear that 3 cents of the property belongs to the temple and that was never in the possession and enjoyment of the plaintiff or any other person mentioned therein. Velayudhan had employed the third defendant as poojari of the temple and the temple has become famous and suppressing these facts, the present suit has been filed. The plaintiff is not entitled to get of the other reliefs O.P.(C).No.2401 of 2016 9 claimed. So he prayed for dismissal of the suit.
4. The question regarding payment of court fee was considered as a preliminary issue and the Court below by Ext.P3 order found that the plaint schedule property is a religious endowment coming under the definition of Religious Endowment as defined under the Hindu Religious and Charitable Endowment Act 1951 and thereby the court fee is payable only under section 28 of the Act and the court fee paid is correct. This is being challenged by the petitioners by filing this petition.
5. Heard Sri.Rajit, learned counsel appearing for the petitioners and Sri.M.R. Ramesh, learned counsel appearing for the respondents.
6. The learned counsel appearing for the petitioners submitted that there is no allegation in the plaint that it is a public religious institution or a public trust so as to come within the purview of section 28 of the Act. In the absence of such an allegation, the court fee payable is under Section 25 of the Act and not under section 28 of the Act. A reading of the impugned order of the court below will go to show that there is no averment in the plaint that it is a public endowment and the nature of allegations are not clear regarding the dedication to the public. But the court below had relied on the allegations in the written statement for the purpose of coming to the conclusion O.P.(C).No.2401 of 2016 10 that it will come under Section 28 of the Act. The court below had failed to note the fact that for the purpose of computing the court fee, the allegation in the plaint alone has to be considered. So under such circumstances, the impugned order of the court below is not justifiable.
7. On the other hand, learned counsel appearing for the first respondent submitted that the property was dedicated to the temple and even a private temple will come under the purview of the Act in view of the proviso to the section. So under such circumstances, the learned counsel has relied on the definition of endowment and religious purpose as defined under the Hindu Religions and Charitable Endowment Act in support of their case.
8. The case of the plaintiff in the plaint was that the father of the plaintiff and defendants 1, 4 to 8 and the predecessor of defendants 9 and 10 namely Narayanan had constructed a temple and plaint A and B schedule properties were used for the management and administration of the temple and after the death of Naryanan, the plaintiff and the defendants mentioned above have become the co-owners of the property and this was allotted jointly to them as per the Will executed by the said Narayanan for the above said purpose. The first defendant with the connivance of defendants 2 and 3 is trying to alienate the property to defendants 2 and 3 and they have no right over the O.P.(C).No.2401 of 2016 11 same and the suit was filed for declaring the joint ownership and possession of plaint A and B schedule properties of the plaintiff and also for consequential injunction restraining defendants 2 and 3 or their men from trespassing into plaint A and B schedule property or obstructing the right to conduct rituals by the plaintiff and restraining the first defendant from alienating plaint A and B schedule to defendants 2 and 3 or any other person in such a way as to affect the right of the plaintiff. No where it is mentioned as to the nature of endowment that has been made in the plaint. It is not clear from the allegations in the plaint as to whether it is a private endowment or a public endowment or the temple is a private temple or public temple and whether the plaintiff is filing the suit as a trustee in management of such endowment etc. The suit was valued for the purpose of jurisdiction at Rs.22 lakhs but the court fee was paid under section 28 of the Act.
9. Section 28 of the Act deals with suits relating to trust property which reads as follows:
28. Suits relating to trust property:-In a suit for possession or joint possession of trust property or for a declaratory decree, whether with or without consequential relief in respect of it, between trustees or rival claimants to the office of trustee or between trustee and a person who has ceased to be trustee, fee shall be computed on one-fifth of the market value of the property subject to a maximum fee of rupees two hundred or where the O.P.(C).No.2401 of 2016 12 property has no marked value on rupees one thousand:
Provided that, where the property does not have a market value, value for the purpose of determining the jurisdiction of Courts shall be such amount as the plaintiff shall state in the plaint.
Explanation:- For the purpose of this section, property comprised in a Hindu, Muslim or other religious or charitable endowment shall be deemed to be trust property and the manger of any such property shall be deemed to be the trustee thereof".
10. The word trustee or religious or charitable endowment has not been defined under this Act. So we will have to consider the definition in other enactments dealing with Religious Charitable Endowment for this purpose.
11. Section 6(4) of Madras Hindu Religious and Charitable Endowments Act, 1951 defines Charitable endowment which reads as follows:
"Charitable endowment means all property given or endowed for the benefit of, or used as of right by, the Hindu or the Jain community or any section thereof, for the support of maintenance of objects for utility to the said community or section, such as rest-houses, choultries, patasalas, schools and colleges, houses for feeding the poor and institutions for the advancement of education, medical relief and public health or other subjects of a like nature; and includes the institution concerned".
12. Section 6 (14) of the above said Act defines"religious endowment" or "endowment" which read as follows: O.P.(C).No.2401 of 2016 13
"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 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 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 religious endowment.
Explanation (2):-All property which belonged to, or was 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 he meaning of this definition, notwithstanding that, before or after the commencement of this Act, the religious institution has ceased t exist or ceased t 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 apply in respect of any property which vested in any person O.P.(C).No.2401 of 2016 14 before the commencement of this Act, by the operation of the law of limitation."
13. Section 6(15) of the Act defines "religious institution"means a math, temple or specific endowment".
Section 6(16) of the Act defines "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 (14)."
Section 6(17) of the Act defines "temple"means a place by whatever designation known, used as a place of public religious worship and dedicated to , or for the benefit of or used as of right by the Hindu Community or any section thereof, as a place of public religious worship".
14. In the decision reported in Sencottai Swami Mela Arasalwar Trust v. State of Tamil Nadu [2000 (2) KLT Mad. SN 53 (C.No.61)] it has been held that: "The institution must be used as a public religious worship and it must be dedicated to the Hindu Community or any section, shall be for the pubic religious worship and it must be used as a right of the Hindu Community or any section thereto as a place of public religious worship".
15. In the decision reported in Gopinathan v. Raman (2004 (2) KLT 511) it has been held that:
"Private temple owned by a family can also be a place for O.P.(C).No.2401 of 2016 15 public worship but do not make such a private religious institution into a public religious institution unless the intention of the settler is clear that it is intended for pubic worship and not to be used as a family temple".
16. In the decision reported in Goswami Shri Mahalaxmi Vahuji v. Shah Ranchhoddas Kalidas (AIR 1970 SC 2025) it has been held that:
"There are instances of private temples becoming public temples in the course of time. Some of the private temples have acquired great deal of religious reputation either because of eminence of its founder or because of other circumstances".
17. In the decision reported in Kidangazhi Manakkal Narayanan Nambudiripad and others v. State of Madras, rep. by the Secretary, Firka Development and another (AIR 1954 Madras 385), it has been held that:
"Section 76(4) of Madras Hindu Religious and Charitable Endowments Act was valid and it is not affecting the right of the parties to exercise religion by a person or religions denomination protected by Article 25 and 26 of the Constitution of India but if the administration of the properties endowed for religious institution is a public purpose and some exercise on the supervision of such religious endowment is valid".
18. In the said decision relying on the decision reported in O.P.(C).No.2401 of 2016 16 Income-tax v. Premsel (1891 AC 531) where Lord Macnaughten observed:
"Charity" in its legal sense comprises four principal divisions; trust for relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads".
19. In Tudor on Charities 5th edition at page 31 it has been observed that:
"It is equally well established that under the English Law there cannot be a charitable purpose unless it is also of a public character; and that public character; and that public charitable trusts are synonymous expressions".
20. It is also observed in the same Book that:
"It may be laid down as a universal rule that the law recognizes no purpose as charitable unless it is of a public character".
21. In the decision reported in Kuldip Chand and another v. Advocate General to Government of Himachal Pradesh and others (AIR 2003 SC 1685) while interpreting the word religious institution or religions for charitable purpose occurring in Himachal Pradesh Hindu Religious Institution Charitable Endowment Act it has been observed that:
" A Hindu is entitled to dedicate his property for religions and charitable purposes even no instrument in O.P.(C).No.2401 of 2016 17 writing is necessary. A Hindu, however, in the event, wishes to establish a charitable institution must express his purpose and endow it. Such purpose must be clearly be specified. For the purpose of creating an endowment, what is necessary is a clear and unequivocal manifestation on intention to create a trust and vesting thereof in the donar and another as trustees. Subject of endowment, however, must be certain. Dedication of the property either may be complete or partial. When such dedication is complete, a public trust is created in contradistinction to a partial dedication which would only create a charity. Although the dedication to charity need not necessarily be by instrument or grant, there must exist cogent and satisfactory evidence of conduct of parties and user of the property, which show the extinction of a private secular character of the property and its complete dedication to the charity".
22. It is further held in the same decision that:
"Mere long user of a property as Dharmasala by itself would not lead to an inference that dedication of the property by the owners in favour of the public was complete and absolute. Had such a dedication been made, the same was expected to be recorded in the revenue records. Complete control is retained by the owner be it be appointment of a chowkidar for appropriation of rents, maintenance thereof from his personal funds dedication cannot be said to be complete. Premises is not public trust.
23. It is further held in the same decision that: O.P.(C).No.2401 of 2016 18
Following tests are sufficient guidelines to determine on the facts of each case whether endowment is a public or private nature:
i. Where the origin of endowment cannot be ascertained, the question whether the user of the temple by member of public is as of right;
ii. The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied this may be circumstance where the evidence shows that there is a provision for a scheme to be framed for associating the member of the public at large;
iii. Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with founder or his descendants, and that extensive properties are dedicated for the purpose of maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature;
iv. Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by the members of the public to the temple, this would be an important intrinsic circumstance to engage the private nature of the endowment.
24. This was so held relying on the various decisions of the Apex Court and Privy Council in this regard namely Mahant O.P.(C).No.2401 of 2016 19 Ram Saroop Dasji v.S.P. Sahi Special Officer-in-charge of Hindu Religious Trust and others (AIR 1959 SC 951), Menakuru Dasaratharami Reddi v. Duddukuru Subba Rao (1957 (1) SCR 1122), Bihar State Board Religious Trust, Patna v. Mahant Sri Biseshwar Das (1971 (1) SCC 574), Sri. Radhakanta Deb and another v. Commissioner of Hindu Religious endowments, Orissa (1981 (2) SCC 226).
25. The same view has been reiterated in the decision reported in Deoki Nandan v. Murlidhar and others (AIR 1957 SC
133) where it has been held that :
"The question as to the scope of dedication is a mixed question of law and fact, the decision of which depend on the application of legal concept of a public and a private endowment to the facts found".
26. It is also held in the same decision that:
"The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. A religious endowment must, therefore, be held to be a private or public according as the beneficiaries thereunder are specific persons or the general public or sections thereof".
27. The same view has been reiterated in the decisions O.P.(C).No.2401 of 2016 20 reported in Gangadharan Nair v. Commissioner, Malabar Devaswom Board (2013 (3) KLT 1017), The Commissioner, Madras Hindu Religious Charitable Endowments, Madras v. Narayana Ayyangar and others (AIR 1965 SC 1961), Parasamaya Kolerinatha Madam v. Natesa Ahari [2011 (4) KLT SN 45 (C.No.44) SC], Goswami Shri Mahaalaxmi Vahuji v. Shah Ranchhoddas Kalidas (Dead) and others (AIR 1970 SC 2025), Pichai v. The Commissioner for Hindu Religious and Charitable Endowments (Administration Dept.) Madras and others (AIR 1971 Madras 405), T.V. Mahalinga Iyer v. The State of Madras and another (AIR 1980 SC 2036), Pratapsinhji N. Desai v. Deputy Charity Commissioner, Gujarat and others (AIR 1987 SC 2064), Bihar State Board Religious Trust v. Mahant Sri. Biseshwar Das (1971 (1) SCC 574), Radha Kanta Deb v. Commr. of Hindu Religious Endowments (1981 (2) SCC
226), Gurpur Guni Venkataraya Narashima Prabhu and othersv. B.C. Achia, Asstt. Commissioner, Hindu Religious and Charitable Endowment, Mangalore and another (AIR 1977 SC 1192), Sankaran Nambudiripad v. Parameswaran Nambudiri (1958 KLT 1005) and Bhanunni A.C and others v. Commissioner, Hindu Religious & charitable Endowments (Admn.) Department, Kozhikode and others (2011 (3) KHC
900)=(2011 (4) KLT 230).
O.P.(C).No.2401 of 2016 21
28. So it is clear from the above decisions that in order to attract the definition of religious endowment or religious charitable purpose for the purpose of attracting "the trust" mentioned in Section 28 of the Act, it must be in the nature of a public trust. Benefit has been given to pay a fixed court fee in order to protect the interests of the administration of the public trust and not the private trust. Further in order to attract section 28 of the above said Act, it must be established by pleadings by the plaintiff that by virtue of endowment a public trust has been created and the plaintiff is a trustee appointed either by the founder or by way of an instrument created by the founder or inherits that right by virtue of the provision of the dedication in the document or by custom and the defendant against whom the relief is claimed is also a trustee or a former trustee or claims to be a trustee of such a trust and the suit is filed for the benefit of the trust and not for individual benefit. Unless such things are made clear in the plaint, it cannot be said that the relief claimed in the plaint by the plaintiff will fall under Section 28 of the Act for the purpose of getting the benefit under that provision. It is not intended to settle the dispute between individuals regarding the management of a private or family temple.
29. Further in the decision reported in Karia Nachi Bivi v. Allapichai and others (AIR 1937 Mad 402), Mathew Mathews O.P.(C).No.2401 of 2016 22 Kathanar and others v. Kuriakose Easus Kathanar and others (AIR 1954 Travancore-Cochin 178) and Rajagopla Naidu v Ramasubramania Aiyar and another (1923 ILR 46 Mad 782) it has been held that:
"The allegations in the plaint alone has to be taken for the purpose of computing the court fee payable for the relief claimed and the defence of the defendant in the written statement need not be taken into consideration for that purpose".
30. In the decision reported in Abdul Razack v.Anjaneyan (2002 (2) KLT 670) it has been held that for the purpose of consideration of the question for payment of court fee, the averment in the plaint have to be prima facie accepted and denial in the written statement has no bearing on the question of considering the court fee that is payable on the plaint.
31. In the decision reported in Thankamma (Plaintiff) v. Unniamma Antharjanam (Defendant) (1964 KLT 529), it has been held that:
"There can be no controversy that for purposes of court fee the averments in the plaint will have to be prima facie accepted. A denial or other controversy raised in the written statement by the defendants has absolutely no bearing on the question of considering the court fee that is payable on the plaint; and for that purpose the court will have exclusively to confine its attention to the averments made in the plaint itself. O.P.(C).No.2401 of 2016 23 The truth or otherwise of the allegations in the plaint will not arise at the time of deciding the question of the correct court fee to be paid."
32. The same view has been reiterated in the decision reported in Hameed v. Abdulla Haji (2007 (3) KLT 840).
33. So it is clear from the above decisions that what is required to be considered for the purpose of ascertaining the court fee payable on the relief claimed in the plaint is the allegations in the plaint and not the allegations in the written statement. Further in order to attract the benefit under section 28 of the Act, it must be pleaded by the plaintiff and it must be clear from the allegations in the plaint that the dedication is to the public and the plaintiff is a trustee filing the suit in the capacity of trustee for the benefit of the trust of public nature. Such allegations are absent in the present plaint which is clear from the observation made by the court below itself in the impugned order. So under such circumstances, the court below was not justified in coming to the conclusion that the suit has been properly valued and the court fee paid under section 28 of the Act is perfectly correct is unsustainable in law and the same is liable to be set aside. Since the necessary allegations or averments required to get the benefit of section 28 of the Act are absent in the plaint and if it is not clear from the allegations as to O.P.(C).No.2401 of 2016 24 whether it is a public trust or a private trust or it is a private temple or a public temple and whether the plaintiff is a trustee either appointed as per the instrument or otherwise and the suit is for establishment of the right of a trustee in the management of public trust, then the plaintiff is not entitled to get the benefit under section 28 of the Act and he will have to pay court fee on the advolurem rate on the market value as required under section 25 of the Act and not the fixed court fee as provided under section 28 of the Act. So the order passed by the court below is set aside and the plaintiff is not entitled to pay court fee under section 28 of the Act and he is liable to pay court fee on the market value for the relief claimed as provided under section 25 of the Act and not under section 28 of the Act. The plaintiff is directed to pay court fee accordingly. The court below is directed to give an opportunity to the plaintiff to pay court fee and amend the plaint accordingly within the time specified by that court for this purpose. The interim order of stay granted is hereby vacated.
With the above observation and direction, the petition is disposed of accordingly. Registry is directed to communicate a copy of this judgment to the court below at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl