Madras High Court
S. Rajendiran vs The Executive Officer on 5 September, 2024
Author: M.Dhandapani
Bench: M.Dhandapani
W.P. No.12740 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.09.2024
CORAM:
THE HON'BLE MR. JUSTICE M.DHANDAPANI
W.P. No.12740 of 2015
and
M.P. No.1 of 2015
S. Rajendiran .. Petitioner
vs.
1. The Executive Officer,
Sevvel Kottam,
Administrative control of
Arulmigu Sri Natarajaperumal
Sivasubramania Samy Temple,
No.4/7, Sami Pillai Street,
Choolai,
Chennai – 600 112.
Having office at
No.194, Adam Sahib Street,
(Opp. To Kalmandabam),
Rayapuram,
Chennai – 600 013.
2. A. Subramani
3. Maheswari
4. A. Parimala
5. A. Vanaja
6. Aa. Vijayakumar .... Respondents
Writ Petition filed under Article 226 of the Constitution of India to
issue Writ of Certiorari, calling for the records relating to the order passed
by the 1st respondent, dated 07.03.2015 and quash the same.
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W.P. No.12740 of 2015
For petitioner : Dr.R.Gouri
For respondents : Mr.S.D. Ramalingam for R1
RR2 to 6 – No appearance
ORDER
This writ petition has been filed to call for the records relating to the order passed by the 1st respondent, dated 07.03.2015 and quash the same.
2. It is stated in the affidavit that the property situated at No.39/44, Venkatachala Mudali Street, Choolai, Chennai – 600 112 measuring an extent of 400 sq.ft., originally belongs to one Kanniammal, who purchased the said property in the year 1919. Thereafter Kanniammal executed Will on 25.07.1931, which was registered on the file of the SRO, West Madras. It is further stated that after the demise of Kanniammal, her son Appadurai shall perform the said festival and after the demise of Appadurai, his legal heirs shall continue to perform the said Festival without fail and the petitioner, who is the grandson of Appadurai is performing the said festival, till this year. According to the petitioner, from the recitals found in the Will, the subject property wholly belongs to the petitioner and thus the intention of the Testatrix Kanniammal was to perform Aani Thirumanjanam Festival at Arulmigu Sri Nataraja Perumal Sivasubramaniya Samy Thirukkovil, Samy Pillai Street, Chennai, every https://www.mhc.tn.gov.in/judis 2/12 W.P. No.12740 of 2015 year by her successor-in-title and the expenses for the said Festival to be met out from the rent received from the subject property. Therefore, it is the contention of the petitioner that the intention of the Testratrix is fulfilled by him and the subject property ought not to be claimed by any one including the said temple. More particularly, it is averred that the income fetched from the said property to be utilised for the particular festival at the said temple. There arise legal battle between the petitioner and the private respondents, who filed suit for injunction viz., O.S. No.1933 of 2007 as well as writ petition before this Court in W.P. No.17838 of 2012 seeking for direction to the respondent to take over the property due to mis-management by the petitioner and thus the enjoyment of the said property was disturbed by the private respondents. Pursuant to directions issued by this Court on 03.02.2015 in W.P. No.17838 of 2012, the impugned order, dated 07.03.2015 was passed by the 1 st respondent, for evicting the petitioner and the private respondents with direction to handover the possession of the property within the stipulated time. Aggrieved by the said eviction order, this writ petition has been filed.
3. Learned counsel for the petitioner submitted that till date, the petitioner has fulfilled the wishes of the Testatrix as a grandson of Appadurai, in whose favour the Will was executed by Kanniammal. She https://www.mhc.tn.gov.in/judis 3/12 W.P. No.12740 of 2015 submitted that the subject property is an ancestral property of the petitioner and the 1st respondent, without ascertaining any facts, passed the impugned order, treating the petitioner as an encroacher, which is erroneous and unsustainable. Further, she pointed out the specific lines of the Will executed by Kanniammal and submitted that it is the intention / wish of Kanniammal that the said Festival at Arulmigu Sri Nataraja Perumal Sivasubramaniya Samy Thirukkovil, Samy Pillai Street, Chennai to be conducted every year without fail and to meet out the expenses for the said Festival, the rental income of the said property was to be utilised. Till this year, the petitioner performed the said festival in a grand manner from the income of the subject property as well as with petitioner's own contribution. Further, she strongly submitted that the Will was executed by the Testatrix in favour of Appadurai, who was the grandfather of the petitioner, thus the petitioner derived title from his ancestors and in which, the 1st respondent cannot interfere as the subject property wholly belongs to the petitioner and not to the temple as claimed by the 1st respondent. She drew the attention of this Court to the recitals of the Will to support her case, whereby it can be clearly seen that the partial dedication made by the Testatrix is to perform the said Festival from the income received from the said property.
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4. Relying a judgment in G.Duraikannu vs. A. Natesa Pillai and others (MLJ Reports, 1978, Page 296), she submitted that the parties cannot claim right over a property, when it was a partial dedication, the intention of the author of the document has to be ascertained. Hence, the right claimed by the 1st respondent over the subject property treating the said property as a temple property is unsustainable. In view of the above, she prays for issuance of appropriate directions to the 1st respondent as well as for quashment of the impugned order.
5. Per contra, learned counsel appearing for the 1st respondent submitted that the property was endowed for the purpose of conducting Aani Thirumanjanam Utsavam regularly at the aforesaid temple and as per the Trust Deed, the said Kanniammal, who was the Trustee had performed the said Festival from the income of the said property till her life time. He also submitted that after the death of Kanniammal, her adopted son Appadurai was the Trustee and performed the said festival from and out of the income of the said property. He further submitted that it was specifically mentioned in the Will executed by Kanniammal that after the death of Appadurai, the property has to be handed over to the Trustee of the temple and they in turn have to conduct the said Festival from and out of the income of the subject property. He mainly contended that from the https://www.mhc.tn.gov.in/judis 5/12 W.P. No.12740 of 2015 recitals of the Will, it is clear that the whole income of the subject property has to be spent for conducting the said festival and no portion of rental income can be enjoyed by either the Trustees or third parties, which shows that it is the absolute dedication of the property made by the Testatrix Kanniammal.
6. Relying the counter affidavit filed by the 1st respondent, he submitted that after the demise of Appadurai, the said property has to be handed over to the temple Trustees and the petitioner cannot claim right over the said property stating a baseless claim of ancestral property. He also submitted that no individual can claim right over the said property after the demise of Appadurai as successor of Appadurai as it is an absolute dedication.
7. Reiterating the counter affidavit, he submitted that neither the petitioner nor the private respondents can claim right over the said property and the subject property is in the prime locality and if the same was let out for rent, it will fetch huge rent. Instead of doing that, the petitioner as well as private respondents are in occupation of the subject property, which was specifically endowed and enjoying the fruit, which is contrary to the said Trust Deed. Further, he submitted that pursuant to directions of this Court made in W.P. No.17838 of 2012, dated https://www.mhc.tn.gov.in/judis 6/12 W.P. No.12740 of 2015 03.02.2015, the 1st respondent passed the order, which is impugned herein and directed the petitioner to hand over the possession of the property within a period stipulated therein, which cannot be interfered with.
8. Finally, he submitted, on instructions that the market rent as per the guideline value for the year 2024 in respect of the subject property is Rs.17,428/-. Therefore, the petitioner and two others, occupants of the subject property have to pay a sum of Rs.56,36,955/- towards damages for the period from January 1995 to September 2024. A report filed by the 1st respondent in support of this contention is placed before this court. However, without paying rent, they are still occupying the subject property stating the pendency of this writ petition. Hence, he prays for issuance of appropriate directions in the above regard as well as for dismissal of this writ petition.
9. Heard the learned counsel on both sides and perused the materials placed on record.
10. It is not in dispute that originally the subject property belonged to one Kanniammal. On a perusal of genealogy chart, it is clear that petitioner's grand father Appadurai was the son of Kanniammal. Further it reveals that the said Kanniammal has executed a Will in favour of petitioner's grand father Appadurai in respect of the subject property. https://www.mhc.tn.gov.in/judis 7/12 W.P. No.12740 of 2015 From the recitals of the Will, it reveals that after the demise of Kanniammal, her son Appadurai was authorised to conduct Aani Thirumanjanam Festival at Arulmigu Sri Nataraja Perumal Sivasubramaniya Samy Thirukkovil, Samy Pillai Street, Chennai and the income of the subject property has to be utilised for conducting the said festival. It also reveals that after the demise of Appadurai, the subject property has to be handed over to the Trustee of the temple and they in turn have to conduct the said Festival from and out of the income derived from the subject property. It is therefore crystal clear that the intention of the Testatrix Kanniammal was to conduct the said Festival regularly, without fail and the income from the aforesaid property has to be utilised for conducting the said Festival. Further, it is noted from the report filed by the 1st respondent that the petitioner is in occupation of the said property and the same was not rented out.
11. Though it is the contention of the petitioner that he is conducting the said festival in the said temple, regularly, however, it is to be pointed out that the income from the above property is to be used for the benefit of the temple including conduct of the festival. However, it is borne out by record that the petitioner is in occupation of the said property for over two decades and he has to pay a huge sum towards arrears of rent and damages https://www.mhc.tn.gov.in/judis 8/12 W.P. No.12740 of 2015 for the said occupation. By means of such occupation, the petitioner has usurped the benefits, which otherwise would have devolved on the temple.
12. On a careful perusal of silasaasanaam, it is clear that the dedication made by the Testatrix is in the nature of absolute dedication, as the Testatrix had made her intentions clear by stating that the income from the property has to be utilised for the temple meaning thereby that enjoyment of the property is not vested with the heirs of Kanniammal but the property and the income from the property is absolutely dedicated to the temple.
13. This Court perused the judgment placed by the learned counsel for the petitioner, referred to supra in the case of G. Duraikannu vs. A.Natesa Pillai, wherein it has been held as follows :-
The legal position “that emerges is that to ascertain whether the dedication is partial or absolute, we have to take the instrument as a whole. The intention of the author of the document has to be gathered and that has to be done only from the words used. Where, as here the document speaks only of the income, the intention has to be ascertained from the disposal of the income. If for the maintenance of public charity, a minor portion of the income is required to be used and substantial https://www.mhc.tn.gov.in/judis 9/12 W.P. No.12740 of 2015 surplus is left in the hands of the manager for his own private purposes, there would not be a complete dedication. But if the charity is given a substantial part of the income, then, the dedication would be a complete one.
14. As stated above, the author of the document viz., Kanniammal has dedicated the property absolutely to the temple by specifically making the Will that the income of the property has to be utilised for conducting the said festival at the said temple, after the demise of Appadurai in whose favour she executed the Will. Applying the aforesaid decision to the facts of the case, it is clear that the intention of the Testatrix is to dedicate the property entirely to the temple and any income generated from the said property is to be utilised for the temple and such dedication being absolute, it is not open to the petitioner to enjoy the property by stating that the wishes of the Testatrix is being fulfilled by conducting the festival in the temple. The wishes of the Testatrix is not only for conducting the festival at the temple but the funds that is generated from the property is to be utilised for conducting the said festival. That being the case, all rest and residue of the income generated from the property is dedicated to the temple and it is not only the conduct of the festival that is material, but all the income is to be utilised for the temple, including conducting the https://www.mhc.tn.gov.in/judis 10/12 W.P. No.12740 of 2015 festival. Considering the Will (instrument) executed by Kanniammal as a whole, the only inference that could be drawn is that the dedication is an absolute dedication and no inference other than that can be drawn from that Will. Therefore, the petitioner cannot claim right over the subject property and the order dated 07.03.2015, passed by the 1st respondent, which is impugned herein is legally sustainable and no interference is warranted with the same.
15. For the reasons aforesaid, this Court does not find any merit in this writ petition and the same deserves to be dismissed and, accordingly, the same is dismissed. The petitioner is directed to hand over the possession of the said property to the 1st respondent to perform Aani Thirumanjanam Festival, regularly at Arulmigu Sri Nataraja Perumal Sivasubramaniya Samy Thirukkovil, Samy Pillai Street, Chennai, and for the benefit of the temple for which it was dedicated by the Testatrix. No costs. Consequently, connected miscellaneous petition is closed.
05.09.2024 Index : Yes / No Internet: Yes/No Speaking Order/Non-Speaking Order vsi2 https://www.mhc.tn.gov.in/judis 11/12 W.P. No.12740 of 2015 M.DHANDAPANI, J.
vsi2 To
1. The Executive Officer, Sevvel Kottam, Administrative control of Arulmigu Sri Natarajaperumal Sivasubramania Samy Temple, No.4/7, Sami Pillai Street, Choolai, Chennai – 600 112.
Having office at No.194, Adam Sahib Street, (Opp. To Kalmandabam), Rayapuram, Chennai – 600 013.
W.P. No.12740 of 2015
05.09.2024 https://www.mhc.tn.gov.in/judis 12/12