Madras High Court
Arya Kshaytriya Rajakula Nandhavana vs The Commissioner on 16 September, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.22076 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 30.08.2022
Pronounced On 16.09.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.No.22076 of 2018
Arya Kshaytriya Rajakula Nandhavana
Madalaya Paripalana Sangam,
116, Chinnashop Street,
Thiruvannamalai 606 601
Rep.by President,
K.Radhakrishanan ... Petitioner
vs.
1. The Commissioner,
Hindu Religious and Charitable Endowments,
Nungambakkam, Chennai 34.
2.The Assistant Commissioner,
Hindu Religious and Charitable Endowments,
Thiruvannamalai.
3.The Joint Commissioner,
Hindu Religious and Charitable Endowments,
Villupuram.
4.Fit Person/Executive Officer,
Arya Kshatriya Rajakula Nandhavana
Madalaya Paripalana Sangam,
Thiruvannamalai. ... Respondents
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Page No 1 of 48
W.P.No.22076 of 2018
Prayer:- Writ Petition filed under Article 226 of the Constitution of India,
for issuance of a Writ of Certiorarified Mandamus, calling for the records
in Na.Ka.No.240/2012/A1 dated 2.3.2018 on the file of the 2 nd
respondent and quash the same and directing the respondents 1 to 3 to
remove the seal of the petitioner sangam and grant such other relief.
For Petitioner : Mr.R.Rajarajan
For R1 to R3 : Mr.M.R.R.Arun Natarajan
Spl.Govt.Pleader.
For R4 : Mr.A.K.Sriram
for M/s.A.S.Kailasam Associates
ORDER
The petitioner has challenged the impugned order dated 02/03/2018 passed by the second respondent Assistant Commissioner.
2. By the impugned order, the fourth respondent has been appointed as a fit person under Section 49 of "the Hindu Religious and Charitable Endowments Act 1959" [hereinafter "H.R &C.E Act"] .
Relevant portion of the impugned order reads as under:-
______________ https://www.mhc.tn.gov.in/judis Page No 2 of 48 W.P.No.22076 of 2018 Tamil English (1) nkw;go Mhpa \j;jphpa uh$Fy It is stated that the ee;jtd klhya ghpghyd r';f Thanipadiyar Mutt was epht ; hfpahy; jhdpg;hhoahh; klk; vd;gJ dedicated to Arya Kshatriya Mhpa rj;jphpa uh$Fy rK:fj;jpw;fhf Rajakula Nandavan Monastery 1899k; tUlj;jpy; brl;oy;bkz;l; K:yk;
vGjp bfhLj;jJ. 1900k; tUl Paripalana Sangam by a fy;btl;oYk; cs;sJ vd member belonging to the bjhptpf;fg;gl;ljid ghprPyid bra;jjpy; community Arya Kshatriya nkw;go brl;oy;bkz;l; Mtzj;jpYk; Rajakula in the year 1899 fy;btl;oYk; jhdpg;ghoah; klk; Mhpa through a settlement deed, and rj;jphpa uh$Fy rKfj;jpw;F kl;LkhdJ the same was mentioned in the vd bjhptpf;fg;gltpy;iy vd inscription of 1900. Meanwhile Mtz';fspd; mog;gilapy; mwpa there was no such fact that the tUfpwJ/ math belonged to a particular community in the settlement deed or in the inscription.
(2) nkw;go r';f eph;thfpahy;.
brd;id cah;ePjpkd;w tHf;F The petitioner had stated that W.P.No.17171/2012– d; the decision of the Hon’ble Madras High Court in W.P No 25/08/2017 njjp jPh;g;gpYk; jhdpg;ghoahh; klk; Mhpa rj;jphpa klj;jpw;F 17171 of 2012 dated brhe;jkhdJ vd cj;jputplg;gl;Ls;sJ 25.08.2017, that the math vd neuo tprhuizapy; Twpajid belongs to the said community.
bjhlh;eJ; . nkw;go jPh;g;gpid goj;J But after a precise reading of
fhz;gpj;J ghprPyid bra;jjpy; the verdict there was no such
mt;thwhd thrfk; ,y;iy vd bjhpa statement as mentioned by the
tUfpwJ/ petitioner.
muirnah. ,j;Jiwianah
gpujpthjpahf nrh;f;fhky; brhj;jpw;F The petitioner claims the title
chpik ,y;yhj nkw;go r';fKk;. over the property through the
jdpg;gl;l egUf;Fk; ,ilna bjhlh;e;j suit filed by the petitioner in
tHf;Ffspy; nkw;go r';fj;jpw;F which the department or the
rhjfkhf cj;jput[ bgw;wjid government were not included
ePjpkd;wj;jpy; ,Wjp ghpfhuk; bgw;wjhf as party/defendants. This
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Page No 3 of 48
W.P.No.22076 of 2018
Tamil English
TwtJ Vw;fj;jf;fjy;y vd;w bray; cannot be considered as a valid mytYh; thf;FK:yk; Vw;fg;gLfpwJ/ claim over the title.
(3) jpUtz;zhkiy. mUs;kpF mUzhr;rny!;tuh; jpUf;nfhapYf;F For dedication of garlands to g[\;g if';fh;aj;jpw;fhf cUthf;fg;gl;l the Thiruvanamalai Arulmighu fl;lis brhj;jhd ee;jtdk; Kamatchiamman Temple a jpUtz;zhkiy lt[d; rh;nt property nandhavanam vz;/81/12-y; 4/48 Vf;fh; brd;l; epyk; measuring an extent of 4.48 nkw;go r';fj;jpduhy; tpw;gid acres in survey No 81/2 was bra;ag;gl;L brd;id cah;ePjpkd;w maintained by the trust. The tHf;F W.P.No.17171/2012 cj;jput[ said land was sold by the ehs;/ 25/08/2014-d; go ,j;Jiw petitioner association. As per mYtyh;fshy; kPl;fg;gl;Ls;sjhy; nkw;go the direction of this Hon’ble fl;lis brhj;J Vw;gLj;jg;gl;ljd;
nehf;fj;ij rpijj;J nkw;go Mhpa court in W.P No 17171 of 2012 rj;jphpa uh$Fy ee;jtd klhya dated 25.08.2014, the ghpghyd r';fk; bray;gl;Ls;sjhy;. ,e;j possession of the land was mwepiyaj;jpd; eph;thfj;jpid taken back by the department.
kDjhuUf;F tH';f njitapy;iy vd;w As the petitioner association
jpUtz;zhkiy ruf Ma;th; kw;Wk; has destroyed the core purpose
mUs;kpF fhkhl;rpak;kd; jpUf;nfhapy; of the math, it is not mandatory
bray; mYtyh; Mfpnahhpd;
vGj;Jg{h;tkhd thf;FK:yk; epyj;ij for the department to handover
jhdk; mspj;jthpd; nehf;fk; the management to the
epiwntw;Wk; bghUl;L Vw;fg;gLfpwJ/ petitioner’s Association as per
the report of the fit person. The
petitioner has failed to fulfill
the purpose for which the
dharmashala was dedicated.
(4) nkYk; nkw;go jhdpg;ghoahh;
klj;jpy;. klj;ij Vw;gLj;jpathpd;
nehf;fj;ij epiwntw;Wk; bghUl;L. As per the written statement of
nkw;go r';fj;jhh; bray;gltpy;iy vd the Executive officer, the
bray; mYtyh; kw;Wk; Ma;thpd; purpose of the Math was not
vGj;Jg{h;tkhd thf;FK:yj;jpd; fulfilled by the petitioners
mog;gilapy; neuo tprhuizapy; association.
bjhpatUfpwJ/
(5) nkw;go jhdpg;ghoahh; klk; The Math was founded in the
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W.P.No.22076 of 2018
Tamil English
1899k; Mz;L Vw;gLj;jg;gl;L. 1974k; year 1899 and the association
Mz;L Jt';fg;gl;l nkw;go Mhpa was started in the year 1974
rj;jphpa uh$Fy ee;jtd klhya and the income and expenses
ghpghyd r';fj;jpd; tut[ bryt[
fzf;Ffspy; nkw;go jh;k of Arya Kshatriya Rajakula
fhhpa';fSf;fhf bryt[ Nandavan Monastery
bra;ag;gl;ljw;fhd tut[ bryt[ Paripalana Sangam and debit
fzf;Ffs; rkh;g;gpf;fg;glhjjhy; VJk; and expenditure on charitable
mwpag;gltpy;iy/ works were not submitted by
the petitioner before the
department.
(6) nkw;go r';fk; Vw;gLj;jg;gl;L
jPh;khdk; ,aw;wg;gl;ljhf tHf;fhWfspy; Further the association was
bjhptpf;Fk; rhd;whtzkhf jPh;khd formed, resolutions were
ngnuL gf;fk; 12-y; 19/03/1976-y; passed, in Minutes book page
jPh;khdk;- ,r;rj;jpuj;ij ifg;gw;Wtjw;F 12 dated 19.03.1976
( ifg;gw;WtJ vd;gJ jpUj;jk;
Resolution - 2 a legal
bra;ag;gl;L ghpghydk; bra;a vd
vGjg;gl;Ls;sJ) Mtzk; bra;tj document, to take over the
bjhlh;ghf kjuh!; fth;dhplk; brd;W possession of the Math the
mDkjp bgw;W Mtz bra;a members of the association
jPh;khdpf;fg;gl;lJ/ jPh;khdk;-5 y; have decided to meet the
rj;jpuj;ij ifg;gw;w mDkjp nfl;ly; governor and the resolution
rk;ge;jkhf jkpH;ehL MSeiu re;jpf;f was passed. In resolution 5
Kot[ bra;ag;gl;Ls;sjhf dated 27.03.1979 to meet the
Fwpg;gplg;gl;Ls;sJ/ 27/03/1979 jPh;khdg; governor for taking over the
ngnuL gf;fk; 23-y; ek; rj;jpuk;
possession of the choultry.In
tp\akhf brd;id brd;W khz;g[kpF
jkpH;ehL Kjy;tiu re;jpj;J RK:fkhd page 23 of the Minutes book,
jPh;t[ fhzyhkh my;yJ Mnyhrpj;J the members of the petitioner
RK:fkhd jPh;t[ fhzyhk; vd;W association have decided to
Fwpg;gplg;gl;Ls;sJ/ 2/07/1979 jPh;khd meet and discuss the issues
ngnuL gf;f vz; 25-y; jPh;khdk; 3 with the Chief Minister and
kw;Wk; 4-y; rj;jpuj;ij gw;wp tf;fPy; come to a convenient solution.
K:yk; nf!; nghlt[k;. rj;jpuj;ij gw;wp In Page 25 resolution 3 and 4 a
tf;fPy; K:ykhf ke;jphpfis re;jpj;J suit to be filed for the choultry
Mtz bra;tJ rk;ge;jkhf and to meet ministers along
tpthjpf;fg;gl;ljhf Fwpg;gplg;gl;Ls;sJ/ nkw;Fwpg;gpl;l Mtz';fspy; ,Ue;J with lawyers with regard to the ______________ https://www.mhc.tn.gov.in/judis Page No 5 of 48 W.P.No.22076 of 2018 Tamil English ,e;j jh;krj;jpuk; MdJ ,th;fSila documents and deeds. mDgtj;jpy; kw;Wk; guhkhpg;gpYk; ,y;iy vd;gJ jpUtz;zhkiy ruf Ma;th;
vGj;J g{h;tkhd thf;FK:yj;jpd; go bjhpatUfpwJ/ (7) nkw;go jh;krj;jpuj;jpw;F brhe;jkhd efu g[y vz;/1646/1 kw;Wk; The total extent of land in 1646/2 bkhj;j gug;gst[ 6160 r/m dharamshala is 6160 sq. ft ,lj;jpy; 23/03/1992 Mtz survey no 1646/1 and 1646/2 vz;/1456/1992-y; rj;jpauh$d; and on 23.03.1992 as per vd;gtUf;F 20 Mz;L fhyj;jpw;F document 1456/1992 a lease Fj;jiff;F jh;krf;fuj;jpd; xU was granted to sathyarajan for gFjpapid (1000 r/mo) ,lj;jpid 1899 an extent of 1000 sq.ft for a fz;o\*d; cld;gof;if kw;Wk; period of 20 years. The grant of rpyhrhrd fy;ypy; bjhptpf;fg;gl;Ls;s lease of land in Dharamshala is mwnehf;fpw;F vjpuhf Fj;jif Mtzk;
Vw;gLj;jg;gl;lJ/ ,jd; fhuzkhf against the settlement deed and jh;krj;jpuj;jpy; FoapUe;jth;fSf;Fk;/ inscription. Due to some issues ,th;fSf;Fk; tHf;fhW Vw;gl;ljhf with the lessee the lease bjhpatUfpwJ. 29/07/1993-y; Fj;jif agreement was cancelled on uj;J bra;J jpUk;g bgwg;gl;Ls;sjhf 29.07.1993. This act of the gjpt[ Mtz';fspy; fhzg;gLfpwJ/ petitioner association is against ,e;j mwepiyaj;jpd; nehf;fj;jpid the purpose of the endowment. rpijf;Fk; tifapy; nkw;go r';fj;jpdh;
bray;gl;ldh; vd;w jpUtz;zhkiy
ruf Ma;th; kw;Wk; bray; mYtyuJ
vGj;Jg{h;tkhd thf;FK:yk;
Vw;fg;gLfpwJ/
nkw;go tprhuizapd; nghJ Further the oral and written
bjhptpj;j neuo kw;Wk; vGj;Jg{h;tkhd statement, documents, and
thf;FK:y';fspd;goa[k;. rkh;g;gpj;j
foj';fs; kw;Wk; Mtz';fis tpUg;g[ letters submitted by the
btWg;gpd;wp ,e;J rka mwepiyaj;Jiw petitioner during the enquiry
rl;lk; 1959-d; go ftdKld; ghprPyid were considered without
bra;j fPH;fhZk; tptug;ggo prejudice and were scrutinized
cj;jputplg;gLfpwJ. as per Hindu Religious &
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W.P.No.22076 of 2018
Tamil English
Charitable Endowment Act
1959.
jpUtz;zhkiy efh;. mUs;kpF
jhdpg;ghoahh; klk; vd;w jh;krj;jpuk; Vw;gLj;jg;gl;l nehf;fj;ij epiwntw;Wk; The purpose of the bghUl;Lk;. nkw;go mwepWtdj;jpd; Dhamrmashala was not brhj;Jf;fis ghuhjPdk; bra;ahky; fulfilled by the pestitioner ghJfhf;Fk; bghUl;Lk;. kDjhuhpd; association and the assets of nfhhpf;if epuhfhpf;fg;gLfpwJ/ ,e;J the math were not maintained rka mwepiyaj;Jiw rl;lk; 1959-d;go in a proper manner by the jpUtz;zhkiy. mUs;kpF petitioner association. fhkhl;rpak;kd; jpUf;nfhapy; bray;
Therefore the claim of the mYtyiu jf;fhuhf epakdk; bra;J cj;jutplg;gLfpwJ/ petitioners association is rejected. As per Hindu Religious & Charitable Endowment Act 1959 a fit person.
3. Earlier, the second respondent vide proceedings dated 24.08.2012 bearing reference No.240/2012/A1 appointed a “Fit person” to manage the affairs of the property in question which was looked after by the members of the petitioner society.
4. The correctness of the decision taken by the second respondent in the aforesaid order dated 24.08.2012 bearing reference No.240/2012/A1 was put to test in W.P.No.25776 of 2012.
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5. W.P.No.25776 of 2012 was disposed by this Court vide its order dated 06.11.2017 with the following observations:-
9. It appears from the impugned proceedings that the second respondent had not appreciated the claim of the petitioner in a proper perspective, particularly when civil litigation was pending for several years between the petitioner society and the third party, which litigation has ended in favour of the petitioner society. While that being the case, the sudden action by the second respondent when the civil litigation had attained the finality in favour of the petitioner society without following the proper procedure as contemplated in the Act, cannot be countenanced both in law and on facts. The learned counsel for the petitioner would draw the attention of this Court to Section 3 of the Act, 1959, which provides the procedure to be followed in making appointment of Fit person in respect of charitable endowment. The said procedure as envisaged under the Act, has not been followed admittedly. Moreover, it is seen that while appointing Fit person, no reasons had been spelt out in the order.
The impugned order does not disclose any detailed consideration of the petitioner's claim vis-a-vis third party. Such being the case, the impugned order cannot be justified in law and the same was passed contrary to the provisions of the Act, 1959.
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10. In view of the above, this Court has no hesitation to allow the Writ Petition by setting aside the impugned proceedings. Accordingly, the Writ Petition is allowed and the impugned Letter No.240/2012/A1 dated 24.8.2012 issued by the second respondent is set aside. The matter is remanded to the second respondent for fresh consideration of the petitioner's claim vis-a-vis the assertion of the respondents/department by following due provisions of the Act, 1959 in its letter and spirit. The second respondent/department is directed to afford an opportunity of personal hearing to the petitioner, receive all the materials if any being placed by the petitioner in support of their claim and thereafter proceed to pass appropriate orders in accordance with law and on merits. This direction shall be complied with by the second respondent or any other competent authority as the case may be, under the provisions of the Act, 1959 by passing final orders within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected MPs are also closed.
6. Aggrieved by the above order of the learned single judge, the petitioner filed W.A.No.714 of 2018.W.A.No.714 of 2018was disposed of by the Hon'ble Division Bench of this Court vide order dated 25.06.2018 ______________ https://www.mhc.tn.gov.in/judis Page No 9 of 48 W.P.No.22076 of 2018 with the following observations:-
11. In that view of the matter in order to comply with the principles of natural justice, the nature of the property-in-question as to whether it is given for public charity or not, has to be ascertained. However, without emphasizing much on this aspect, as ordered by the learned Single Judge, a fresh enquiry has also to be conducted with regard to the claim of the property by the appellant and also by the department of HR & CE by following the due provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 in its letter and spirit.
It is also to be noted that since the property- in-question is situated adjacent to Sri Arunachaleswarar Temple, Tiruvannamalai, it is meant only for the pilgrims to come and stay and not to misuse in any other form. Therefore, we are of the fond hope that the appellant and the department will place all the materials in letter and spirit before the 2nd respondent to protect the property as per the content of the Will/declaration, who in turn, dispose of the matter without being influenced by any of the observations made by this Court.”
7. While disposing of the Writ Appeal, the Hon'ble Division Bench of this Court has also made certain observations in paragraphs 4 and 7, which are reproduced below:-
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4. A perusal of the typed set of papers would go to show that the appellant is a Registered Society and the members of the society are belonging to Arya Kula Kshatriya Community.
The Society has been managing the properties belonging to the community. One of the properties-in-question is the property comprised in T.S.No.1646/1, Door No.34/116, ChinnaKadai Street, Tiruvannamalai District in which a Choultry was put up for the benefit and charity of the community people. The said property is located close to Sri Arunachaleswarar Temple, Tiruvannamalai, which temple was frequented by the members belonging to the community for which the society was founded and whenever such visit takes place, the choultry provides the pilgrims free accommodation and other amenities.
5. .....
6. ....
7. Further, the Stone Inscription alleged to be a Will in connection with the appellant Sangam also discloses that the pilgrims can come and stay in the Chathiram and it does not create any type of succession. Any such succession claimed by anyone be a sinner and their act is equivalent to do the sin of killing a cow in Kasi. Therefore, it is undoubtedly clear that the property neither belong to any watchman nor to any caretaker.”
8. The case of the petitioner is that a patch of land measuring to an extent of 6160 square feet was dedicated for construction of Dharmashala ______________ https://www.mhc.tn.gov.in/judis Page No 11 of 48 W.P.No.22076 of 2018 in the year 1856 by Muthialnaicker alias Muthuialraj. After his life time, the said property was maintained and enjoyed by one Krishnasamy Raj and legal heirs of Muthialraj. A reference was made to an alleged Shilasana stone (stone inscription) wherein it is said to have stated as follows:-
Tamil English
v';fs; ,Utuhy; fl;lg;gl;l jh;k This "Dharmasala" has been built by
rj;jpuk; ,jpy; ahj;jpiu thjpfs; ,u';fp both of us. In this "Dharmasala" thrk; bra;ahky; ,e;j rj;jpuj;ij pilgrims may sojourn. This ehkhrptk; ek; thhpRfshfpYk; ,u';fp "Dharmasala" shall not be sold either thrk; bra;ayhk;/ ,e;j rj;jpuj;ij ehkhfpYk; ek; thhpRfshfpYk; xJit by us or by our representatives. If tpw;gid bra;a ghj;jpaij ,y;iy either us or our successors in interest mg;go elj;jpahy; g";rkhghjfj;ij has sold the property, they would miltJld; fhrpapy; fhZk; gRit incur the sin of cow slaughter at bfhd;w ghtj;jpy; nghf fltnjhL Kashi and thus recited and inscribed mndf rptj;Jnuhfk; bghJthtpj;jpy; this "Silashana" stone. nkhr;r flth;fs; ,e;jg;;gof;F ehk;
midtUk; Vnfhgpj;J vGjpf; bfhz;l ntz;oajd; cld;gof;if/
9. It is submitted that the wishes of the founder were not accomplished during their life time and therefore after 43 years Munuswamy Raj and Thiagaraj came forward and decided to put up a rest house for traveller viz, "Dharmasala" Choultry. A reference was made to Document No.2197 of 1899 dated 20.11.1899 which reads under:-
______________ https://www.mhc.tn.gov.in/judis Page No 12 of 48 W.P.No.22076 of 2018 Tamil English 1899k; etk;gh; khjk; 20_f;F jkpH;tp This Conditional agreement is rhhp fhh;j;jpif k";rFg;gk; bjd; entered on this 20th day of Mw;fhL o!;hpf;fl; jpUt;zzhkiy November 1899, Tamil Year Vikari rg; o!;jphpf;fl;L f!;gh jpUtz;zhkiyapypUf;Fk; Mhpah 6th day of Sri Karthikai month \ j;jphpa Fyk; rpt kjk; gaph; $Ptdk;
among the following namely: 1) brsjkkfhhp tHp nfhj;jpu!;jh;fh Krishnasamy Raj, son of Bethuraj, Mfpa tz;zd; fk;gho jhdpaho 2) Muthialraj son of Bethuraj, 3) btj;J uh$; Fkhuh;fs; Mfpa Iyyasamyraj son of Gururaj, 4) fpU\;zrhkp uh$; 1 Kj;jpahY uh$; 2 Yuvaraj son of Subburaj, 5) tp$auh$; Fkhuuhfpa ma;ah rhkp uh$; Narayanasamyraj son of 3 Rg;g[ uh$; Fkhuuhfpa a[tuh$;
Govindaraj, 6) Chinnaraj son of nfhtpe;juh$; Fkhuh;fshfpa ehuhazrhkp uh$; vd; jk;gp rpd;duh$; Govindaraj, 7) Pappiaraj son of 6 brd;id gl;odk; bgj;J Gururaj all these parties 1 to 6 are ehaf;fd;ngl;il j';frhiy bjUtpy; residing at Vanakkampadi, 293 bek;gh; tPlo; ypUf;Fk; Mhpa Thanipadi Village, r\j;jpu Fyk; rpt kjk; cj;jpnahfk; Thiruvannamalai Taluk, South $Ptdk; nkw;go brsjkrdhp\p nrhj;jp Arcot District, Manjakuppam Zilla, rh!;jh;fshfpa jpUtz;zhkiy 8)Munusamyraj son of fpUc\;zryk; uh$; Fkhuh;fshfpa KDrhkp uh$; jpahf uh$ Vfhk;gu uh$; Krishnasamy Raj, 9) Thiagaraj son 10 Mfpa ehk; gj;J ngUk; ahnfhgpj;J of Krishnasamy Raj, 10) vGjpf; bfhz;l fz;o\d Ekambararaj son of Krishnasamy cld;gof;if vd;dbtd;why; : Raj, parties 8 to 10 are residing at Door No.293, Thangasalai Street, Bethanaickenpet, Chennapatnam, k";rFg;gk; $py;yh bjd; Mw;fhL the parties 1 to 10 are belonging to o!;ohpf;fl; jpUtz;zhkiy rg;
o!;jphpf;fl;L f!;gh Aryakshatriyakula Saiva jpUtz;zhkiyapy; rpd;dfilj; Agriculture and Gowtham bjUtpy; fphpgpur\;zk; ngha; tUfpw Maharishi Gothra.
nuhl;Lf;F fpHf;F brd;dg;g ehaf;fd; The property is situated at
tPjpf;F bjw;F tisay; fhu
ehuhazrhkp ehaf;fd; tPlL ; f;F nkw;F Manjakuppam Zilla, South Arcot
fhj;jho uhkrhkp cilahd; tPlL ; f;Fk; District, Tiruvannamalai Sub
g{rhhp gr;rpag;gd; th';fpa epyj;Jf;Fk; District, Kasba, Tiruvannamalai
tlf;F ,jd; kj;jpapy; ,Uf;Fk; epyk; Chinnakadai Street, admeasuring
vdj epykhdJ fpHf;F nkw;Ftl East to West 110 feet, North to
tz;il gf;fk; mo 110 bjw;F tlf;F South 56 feet, situated at
nkyz;il gf;fk; bjw;F tlf;F mo Chinnakadai Street at the temple
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Page No 13 of 48
W.P.No.22076 of 2018
Tamil English
56 ,e;j mst[ gof;Fk; town of Tiruvannamalai where in
,Uf;Fk;goahd epyk; v';fspy; SriAkilandakodi Brahmanda
nky;fz;l jpU/KDrhkp uh$p Abhithakuchalampal, Annamalai
jpahfuh$papd; bghpa jfg;gdhfpa[k;
,we;J nghd Mhpa r\j;jphpaFyk; unnamalaiamman have the sacred
rpt kjk; brsjk;khrhhp nfhj;jpu ! presence in the temple. Bounded
;fe;jh;fshfpa K:j;jpehaf;fUila on the North by Chennappan
brhe;j tPLk; fhypahdJ mth; Naicken Street, East by
mDgtpj;J te;J mtUila gpd; Valayalkara Narayanasamy
ek;kpy; fpU\;zrhkp uh$; Kj;jpahY Naicken House, South by
uh$;tifawh mDgtj;jpy; te;jpUe;j Ramasamy Udayar's House West
tPL kidia v';fs; Kd;ndhh;fshfpa
By Chinnakadai Street originally
nkw;go K:j;jpehaf;fh; rhjhuz
itahfpk; 3 ½ nkw;go tPL kid belonged to one Muthu Naicker
epyj;ij jh;k rj;jpuk; fl;o ghpghydk; allies Muthialraj who is the
bra;J tUk;go xU cld;gof;if vGjp paternal uncle of the parties
itj;jpUf;fpwhh;/ referred Supra namely
Munusamy Raj and Thiagaraj.
The said property was originally
owned, possessed and enjoyed
by the said Muthial Naicker and
after his lifetime it comes to the
enjoyment of the above said
Krishnasamy Raj and Muthuraj
Vagayara and in respect of which
the above said Muthial Naicker on
3rd day of Vaigasisadharana Tamil
year has executed a document and
thereby settling the property for
the construction of Dharmasala.
cld;gof;ifapy; fz;l epykhdJ
Rkhh; 43 tU\ fhykha; epyk; The said land set apart for the
fhypahf ,Ue;JgoahYk; mjw;F
ntz;oa gzk; bryt[ bra;j jf;f construction of Dharmasala has
Kaw;rp vLj;J bfhz;L fl;Ltjw;F been remained vacant for nearly 43
ek;kpy; 10 nghpy; fhhpa!;jh;fshy; years and no steps have been taken
,Jtiuapy; Vw;glhjjpdhny nkw;fz;l by our predecessor are to construct
bgj;Juh$; Fkhuh; Kj;jpahYuh$; the Dharmasala in the property
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Tamil English
tifawht[k; ,thpd; ,UtUf;Fk; ,e;j during the period. Since the money
jh;k rj;jpuj;Jf;F gpof;fg;gl;l gzk; for the construction for the
bryt[ bra;J ,e;j fl;olj;ij Dharmasala cannot be mobilized
g{h;j;jpaha; fl;o ,jw;Fz;lhd
rpyhrd';fis tifawhf;fs; c';fs; by the parties 1 to 10 herein and
,Uth; nghpy; nghl;L tpl;L Vw;ghL the entire Dharmasala has been
bra;J tpl;lhy; tug;gl;l gpui$fSf;F built and constructed with the cost
ek;kpl jh;k rj;jpubkd;Wk; contributed by above referred
tH';fptpLkhjyhy; mg;gof;F eP';fs; Thiagaraj son of Krishnaswamyraj
,UtUk; bra;J itf;Fk;goahd Raj and Muthialraj son of Bethuraj
jh;kj;ij eh';fSk; rk;kjpj;J xg;g[f; and in token of which they have
bfhz;lgoahd jh;kj;ij eh';fSk;
also put a Shilasana stone in the
rk;kjpj;J xg;g[f; bfhz;lgoahy; ,J
tp\aj;jpy; ehkhtJ ek;kpl property. Their contribution and
thhpRfshtJ ahbjhU jhthf;fSk; the erection of the Shilastana stone
,d;Dk; <Lfl;oapUe;j ek; Kjyhd has been acknowledged by all the
Vw;ghLfs; bra;a ghj;jpaij ,y;iy/ 10 of us herein. By this agreement
,jpy; fz;l Vw;ghLfs; ehk; it is made clear that the
tpnuhjkhd fhhpa';fs; bra;anthkhfpy; construction is intended as
fhrpapy; fhZk; gRit bfhd;w “Dharmasala” and we are not
ghtj;jpy; nghf fltnjhL mndf
rptj;Jnuhfk; bghJtpthjj;jpy; entitled to alienate or create or
nkhr;rRlth;fs; ,e;jg;gof;F ehk; encumber over the same and our
midtUk; Vnfhgpj;J vGjpf; bfhz;l Successors in interest are also
ntz;oajd; cld;gof;if/ restrained from creating from any
encumbrance over the property and
anyone violates the conditions
stipulated herein they would incur
the sin of cow slaughter at Kashi.
By this we have unanimously
entered into this conditional
agreement.”
10. It is submitted that the rest house was under the control of members of the Arya Kshatriya Raj Kula community over 100 year. It is the case of the petitioner that the members of the petitioners association ______________ https://www.mhc.tn.gov.in/judis Page No 15 of 48 W.P.No.22076 of 2018 have been protecting the property and later they had formed the present Association in the year 1974 under the Tamilnadu Society Registration Act, 1971 to protect the property on account of his attempt usurp the property.
11. It is submitted that the son of Appadurai Pillai, A.Shanmugham later filed the suit O.S.No.1143 of 1994 before the II Additional District Munsiff, Tiruvannamalai, for a permanent injunction when the petitioner attempted to vacate him from the property on account of his attempt usurp the property.
12. O.S.No.1143 of 1994 filed by the A.Shanmugham against the petitioner was dismissed by the Trial Court by its Judgment and Decree dated 17.08.2001.
13. Aggrieved by the same, A.Shanmugham preferred A.S.No.94 of 2001 before the First Appellate Court(Additional District Judge Tiruvannamalai).A.S.No.94 of 2001 was allowed by the First Appellate Court by its Judgment and Decree dated 30.05.2002 and thereby decreed ______________ https://www.mhc.tn.gov.in/judis Page No 16 of 48 W.P.No.22076 of 2018 the suit in favour ofA.Shanmugham. Aggrieved by the Judgment and Decree dated 30.05.2004, the petitioner filed S.A.No.1973 of 2002.
14. Meanwhile, the petitioner filed a suit O.S 239 of 2003 before II Additional Sub-Judge, Tiruvannamalai for recovery of possession and for a permanent injunction to restrain A.Shanmugham from interfering with the rights of the petitioner. O.S 239 of 2003 came to be decreed in favour of the petitioner by the Trail Court by its Judgment and Decree dated 18.09.2008.
15. Aggrieved by the Judgment and Decree dated 18.09.2008 of the II Additional Sub-Judge, Tiruvannamalai in O.S.No.239 of 2003, A.S.No.19 of 2008 was filed by the said A.Shanmugam which was allowed by the First Appellate Court (Additional District Judge) by its Judgment and Decree dated 03.04.2009. The petitioner thus filed S.A.No.869 of 2009 before this Court.
16. The Second Appeals filed by the petitioner in S.A.No.1973 of ______________ https://www.mhc.tn.gov.in/judis Page No 17 of 48 W.P.No.22076 of 2018 2002 and S.A.No.869 of 2009 were allowed by this Court by its common Judgment and Decree dated 20.04.2011. Relevant portion of the Judgment of this court in S.A.No.1973 of 2002 and S.A.No.869 of 2009 reads as under;-
“23. I could understand, if there is a vast track of land and in a portion of that land, the occupant is cultivating certain crops etc. But this is a peculiar case, in which the choultry is run by the Sangam and in part of the choultry building alone, the occupant is residing. In such a case, the appellate court should have seen as to when the defendant had independently started occupying that portion. I would also like to refer to the relevant portion of the deposition of DW1, the occupant ......... jhthr; brhj;jpy; tlfpHf;F gFjpapy; Fg;g[rhkp thliff;F cs;shh; vd;why; ,Uf;fpwhh;/ ///////////////////////////// jw;nghJk; Fg;g[rhkp jhthr;brhj;jpy; xU gFjpapy; cs;shh;/ mth; thjpfs; nghpy; jd;id gyhj;fukhf btspnaw;wf;TlhJ jhd; thlifj;jhuh; vd;W khtl;l chpikapay; ePjpkd;w m/t/vz;/59/07y; jhf;fy; bra;Js;shh;/ Fg;g[rhkp 50 tUl';fshf thlifj;jhuuhf ,Uf;fpwhh; vd;Wk; 1994y; gpuntrpj;jjhf bgha;ahf brhy;fpnwd; vd;why; rhpay;y/ jhth fl;olj;jpy; xU fy;btl;L ,Ue;jJ vd;Wk; fpilahJ/ ehd; jhf;fy; bra;j 1145/94y; ehd; rhl;rpak; mspj;Jsnsd;/ mt;thW rhl;rpak; mspj;j nghJ rhrd fy; ,Ue;j tptuj;ij xg;g[f; bfhz;Ls;nsd; vd;why; rhpjhd;/ me;j rhl;rpa thf;FK:yj;jpd; rhd;wpl;l efy; jhd; fhz;gpf;fg;gl;lJ/ rk;ge;jg;gl;l gFjp th/rh/M/53 Mf Fwpaplg;gLfpwJ/ vd; jfg;gdhh; ve;j mog;gilapy; jhth brhj;jpy; Fo ,Uf;fpwhh;
______________ https://www.mhc.tn.gov.in/judis Page No 18 of 48 W.P.No.22076 of 2018 vd;W brhy;ytpy;iy/ jhthr;brhj;jpy; xU miwia jw;nghJk; Kdrhkp uh$% vd;gth; gl;o rhtp itj;Js;shh;” vd;why; rhpay;y/ jhth fl;olk; vg;nghJ fl;lg;gl;lJ vd;W bjhpa[khW Rkhh; 100 tUlj;jpw;F Kd;g[ fl;lg;gl;ljhf vd; jfg;gdhh; brhy;thh;/ jhth brhj;jpw;F efuhl;rp thptpjpg;g[ cz;L/ efuhl;rp thp tpjpg;g[ vd; jfg;gdhh; bgahpy; ,Ue;Js;sJ/ vd; jfg;gdhh; bgahpy; ,Ue;j thp urPJfis ehd; ghh;j;jJs;nsd;”/ jhf;fy; bra;atpy;iy/ //////////////////////////” (emphasis supplied) As such, there is clear admission on the part of the occupant himself that there exists a choultry building and there are other tenants under the Sangam and in fact, one Kuppusamy, a tenant in a portion of the choultry building filed a suit as against the Sangam claiming that he was a tenant under the said Sangam and that he should not be dispossessed otherwise than in accordance with Law and that itself is indicative of tha fact that the choultry building is under the control of the society only. The trial court in its elaborate and reasoned judgment dealt with those aspects but the first appellate court without adhering to order 41 Rule 31 of the code of civil Procedure simply reversed the findings of the trial court for no good reasons. It is also an admitted case by the occupant himself that hie father was in occupation of the said property for a pretty long time and following his father's death, he had been in possession of the, said property and his claim based on adverse possession was negatived concurrently by both the courts below.
32. My discussion supra would show that the preponderance of probabilities are in favour of the plaintiff and the defendant who is in occupation of a part of the choultry building cannot by raising various untenable pleas, resist the suit filed by the ______________ https://www.mhc.tn.gov.in/judis Page No 19 of 48 W.P.No.22076 of 2018 Sangam. first appellate court, went to the extent of trying to trace out the The descendants and the legal heirs of Muthu Naicker the original owner and held that there was dearth of evidence. In brief, the first appellate court in para Nos.13 to 23 of its judgment went on discussing the facts by adhering to a wrong approach and by misreading the documents and depositions and thereby misinterpreting the same.
33. In my considered opinion, such an approach is totally untenable. Here none of the alleged heirs of Muthu Naicker is cleaning any right or resisting the most of the Sangan. If there any such thing, the matter would be entirely different and the approach also would be different. The first appellate court ignoring the versions in Ex.A3, the oldest document doubted us to whether Muthu Naicker was the original owner of the property at all. The occupant would contend, it is poraboke area and if so, Government itself would not have issued patta in the name of the Sangam and Ex.A13 in 0.5.No.239 of 2003 and Ex.A30 in 0.S.No.1143 of 1994 should be read cumulatively with rurtance to Ex.A1 and A2.. But, here the court in expected to see as to whether the plaintiff or the defendant in having better right.
34. My discussion supra based on the documentary as well as oral evidence would unambiguously and unequivocally highlight that the plaintiff is having batter title over the choultry and in such a case, the first appellate court was not justified in reversing the judgment ______________ https://www.mhc.tn.gov.in/judis Page No 20 of 48 W.P.No.22076 of 2018 and decree of the trial court and in dismissing the original suit, which van filed by the Sangam. In the bye-laws of the society, in the year 1973, there is reference to the choultry as the property of the society. The bye-laws themselves would refer to the factum of the community people vis. Arya shatriya Kula Raja Vamsam was earlier administering the choultry and that the community people alone constituted that society and in such a case, the court in a matter of this nature is not expected to probe into further details relating to the title of the Sangam. ExA1 and A2 emerged long before the litigation and even during the life timo of the occupant's father. There are all anti-item moto documents and not cooked up documents purely for the purpose of winning the litigative battle by hook or by crook. No doubt, Ex.A13 emerged after the institution of the injunction suit by the occupant. But it refers to the realities only. Exs.A1 and A2 would show that even in the year 1985 while getting the society registered with the Registrar of Firms, the choultry is shown as the property of the society and in such a case, even by phantasmagorical thoughts, it cannot be stated that for the first time as an after thought, the society got incorporated in Ex.A13, as though it is the owner of the choultry. No doubt, Ex.A13 might have emerged after the institution of the injunction suit by the occupant but the materials contained there in are having the back up of earlier documents. In such a case, it cannot be belittled or slighted as documents hit by lis pendens or documents concocted purely for the purpose of this case. In para No. 13 of the written statement of the ______________ https://www.mhc.tn.gov.in/judis Page No 21 of 48 W.P.No.22076 of 2018 occupant, he pleaded as though his father started occupying the suit property from 1935 in his own right and the present occupant was born during the year 1952. There is no iota or shred, shard or molecular extent of evidence in support of his contention that evince in 1935 his father started occupying the suit property in his own right”.
17. Aggrieved by the aforesaid Judgment and Decree of this Court, the said A.Shanmugam filed Civil Appeals in C.A.Nos.4012-4013 of 2012 in S.L.P.(C)Nos.14163-64 of 2012 before the Hon'ble Supreme Court.
18. The Hon'ble Supreme Court dismissed the C.A.Nos.4012-4013 of 2012 in S.L.P.(C)Nos.14163-64 of 2012 on 27.04.2012. The petitioner has placed reliance on few passages from the decision of the Hon'ble Supreme Court, which are reproduced below: -
4. The property in question belonged to one, Muthu Naicker, who dedicated the suit land for construction of a Dharmashala. In the Southern part of India, it is called as 'Choultry'. A 'Dharmashala' is commonly known as 'a place where boarding facilities are provided either free of cost or at a nominal cost'. In the instant case, a Dharmasala was to be constructed for the benefit of the Ariya Kshatriya Community. The appellant's father, Appadurai Pillai was engaged as a Watchman on a monthly salary by the ______________ https://www.mhc.tn.gov.in/judis Page No 22 of 48 W.P.No.22076 of 2018 respondent-society to look after the Dharmashala and in that capacity lived in the premises with his family including the appellant."
19. In our considered view,a well-reasoned judgment and a decree passed by the trial court ought not to have been reversed by the First Appellate Court. It is reiterated that the appellant's father was engaged as a Watchman on a monthly salary and in that capacity he was allowed to stay in the suit premises and, after his death his son (the appellant herein) continued to serve the respondent-Society as a Watchman and was allowed to live in the premises. The property is admittedly owned by the respondent-Society”.
19. It is the case of the petitioner that there was only a “charitable endowment” within the meaning of Section 6(5) of the HR & CE Act 1959. The property was dedicated by the founders in the year 1856. A rest house was constructed in the year 1899. It is outside the purview of the provisions of the H.R & C.E Act 1959 in view of Section 3 of the HR&CE Act.
20. It is the case of the petitioner that the Government has not authorized the Commissioner of H.R & C.E. Department to inquire or cause an enquiry into the affairs of Charitable Endowment and therefore the assumption of power under the provisions of the H.R& C.E Act 1959 ______________ https://www.mhc.tn.gov.in/judis Page No 23 of 48 W.P.No.22076 of 2018 by appointing a fit person was without jurisdiction.
21. It is submitted that the respondents - department has been in slumber all these years and was instigated by the disgruntled watchman, who lost the case all the way upto the Hon'ble Supreme Court and it is only based on the complaint of the above said watchman, proceedings were initiated under section 49 of the Act, which lead to the passing of order dated 24.08.2012 bearing reference No.240/2012/A1, content of which has been supra which was challenged in W.P.No.25776 of 2012.
22. It is submitted that none of the documents produced by the petitioner establish that the land in question belongs to a particular community. It is submitted that as per the decision of the Hon'ble Supreme Court in Thayarammal (Dead) By LR. vs. Kanakammal and others reported in (2005) 1 Supreme Court Cases 457 under the Hindu law, it has been explained that the dedication of property for Dharmachatram as in the present case is considered to be a religious activity.
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23. It is submitted that the petitioner’s action as if right of the land belongs to the community, for which the petitioner’s society has been registered.
24. It is further submitted that the intra dispute with the petitioner and the Watchman's son A.Shanmugam to which neither the official respondent nor the private respondents were made party are any relevancy of consequences are not binding on them.
25. It is further submitted that the decision of this Court has also that of the Lower Court in the suit filed by the petitioner and the Watchman are binded of the official respondents and the fourth respondent who has been appointed by the second respondent. Hence this writ petition is liable to be dismissed.
26. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Special Government Pleader for the first to third respondents and the learned counsel for the fourth respondent.
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27. Point for consideration in this writ petition whether there was a “Charitable Endowments” within the meaning of Section 6(5) or “Religious Endowments” within the meaning of 6(17) of the H.R. &C.E.Act, 1959.
28. Section 6(5) and 6(17) reads as under:-
Section 6(5) Section 6(17) (5) “Charitable endowments” (17) “Religious endowment” or means all property given or “endowment” means all endowed for the benefit of, or property belonging to or given used as of right by, the Hindu or endowed for the support of or the Jain community or any maths or temples, or given or section thereof, for the support endowed for the performance of or maintenance of objects of any service or charity of a utility to the said community or public nature connected section, such as rest-houses, therewith or of any other choultries, patasalas, schools religious charity; and includes and colleges, houses for feeding the institution concerned and the poor and institutions for the also the premises thereof, but advancement of education, does not include gifts of medical relief and public health property made as personal gifts
or other objects of a like nature; to the archaka, service holder or and includes the institution other employee of a religious concerned institution;
Explanation.— (1) Any inam granted to an ______________ https://www.mhc.tn.gov.in/judis Page No 26 of 48 W.P.No.22076 of 2018 Section 6(5) Section 6(17) 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 a religious endowment.
(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 the meaning of this definition, notwithstanding that, before or after the date of the commencement of this Act, the religious institution has ceased to exist or ceased to be used as a place of religious worship or instruction or the service or charity has ceased to be ______________ https://www.mhc.tn.gov.in/judis Page No 27 of 48 W.P.No.22076 of 2018 Section 6(5) Section 6(17) performed:
Provided that this Explanation shall not be deemed to apply in respect of any property which vested in any person before the 30th September 1951, by the operation of the law of limitation;
29. Section 6 (19) of the H.R. & C.E. Act, 1959 the expression “Religious Institution” has been defined as follows:-
(19) “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);
Explanation. —(1) Two or more endowments of the nature specified in this clause, the administration of which is vested in a common trustee, or which are managed under a common scheme settled or deemed to have been settled under this Act, shall be construed as a single specific endowment for the purposes of this Act ;
Explanation.—(2) Where a specific
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endowment attached to a math or temple is situated partly within the State and partly outside the State, control shall be exercised in accordance with the provisions of this Act over the part of the specific endowment situated within the State;
30. If there is “charitable endowment” within the meaning of Section 6(5) of the H.R. &C.E.Act, 1959, the assumption of power under Section 49 will be outside the jurisdiction of the 2nd respondent to appoint a fit person unless requirement of Section 3 was satisfied.
31. Section 3 of the Act reads as follows;-
1. Power to extend Act to Charitable Endowments.
(1) Where the Government have reason to believe that any Hindu or Jain public charitable endowment is being mismanaged, they may direct the Commissioner to inquire, or to cause an inquiry to be made by any officer authorized by him in this behalf, into the affairs of such charitable endowment and to report to them whether, in the interests of the administration of such charitable endowment, it is necessary to extend thereto all or any of the provisions of this Act and of any rules made thereunder.
(2) The Commissioner or the officer authorized by him under sub-section (1) shall, while making an inquiry under that sub-section, have all the powers of a Civil Court under the Code ______________ https://www.mhc.tn.gov.in/judis Page No 29 of 48 W.P.No.22076 of 2018 of Civil Procedure, 1908 (Central Act V of 1908) for the purposes of enforcing the attendance of witnesses and compelling the production of books, accounts, documents, securities, cash and other properties belonging to or in the custody of such charitable endowments and shall follow the procedure applicable under the said Code in regard to recording of evidence and hearing of parties.
(3) If, after considering the report of the Commissioner submitted under sub-section (1), the Government are satisfied that such charitable endowment is being mismanaged and that, in the interests of the administration of such charitable endowment, it is necessary to extend thereto all or any of the provisions of this Act and of any rules made thereunder, they may, by notification, extend to such charitable endowment the said provisions, and thereupon, the provisions so extended shall apply to such charitable endowment as if it were a specific endowment :
Provided that before issuing such a notification, the Government shall publish in the *Fort St. George Gazette, a notice of their intention to do so, specifying the reasons for the action proposed to be taken by them and fixing a period which shall not be less than two months from the date of publication of the notice, for the persons interested in the endowment concerned to show cause against the issue of the notification and consider their objections, if any.
(4) Notwithstanding anything contained in this ______________ https://www.mhc.tn.gov.in/judis Page No 30 of 48 W.P.No.22076 of 2018 section, the Government may, on application made by the trustee of any Hindu or Jain public charitable endowment, or where there are more trustees than one, then by those trustees or a majority of them and with the concurrence of the trustee or trustees making the application, extend, by notification, to such charitable endowment all or any of the provisions of this Act and of any rules made thereunder, and thereupon the provisions so extended shall apply to such charitable endowment as if it were a specific endowment.
32. The Hon'ble Division Bench of this Court vide its order dated 25.06.2018 in W.A.No.714 of 2018 has observed that that since the property-in-question was situated adjacent to Sri Arunachaleswarar Temple, Tiruvannamalai, it was meant only for the pilgrims to come and stay and not to misuse in any other form. Thus, prima facie, there is a “religious endowment” within the meaning of Section 6(17) of the HR & CE Act, 1959 as this view has not been disturbed.
33. A reading of the impugned order indicates that not only the land which is the subject matter of the present Writ Petition, but also land in S.No.81/2, Ward No.1, Block No.4 in Thiruvannamalai Village measuring ______________ https://www.mhc.tn.gov.in/judis Page No 31 of 48 W.P.No.22076 of 2018 an extent of 4.48 acres which was meant to be Nandhavanam i.e. a garden was sold by the petitioner through its members to some members.
34. These facts indicate that there is an attempt to corner the property dedicated by the original dedicators namely, Muthunaicker for the community in general with a charitable object long back in the year 1856.
35. As per Section 6(16) of H.R. & C.E. Act, 1959, a “religious charity” means a public charity associated with a Hindu festival or observance of a religious character, whether it be connected with or math or temple or not. Section 6(16) of H.R. & C.E. Act, 1959 reads as under:-
“religious charity” means a public charity associated with a Hindu festival or observance of a religious character, whether it be connected with or math or temple or not"
36. In this case the dedication was for a specific purpose. The expression “Specific endowment” has been defined in Section 6(19) of H.R. & C.E. Act, 1959 as under:-
______________ https://www.mhc.tn.gov.in/judis Page No 32 of 48 W.P.No.22076 of 2018 “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)”
37. The Hon'ble Supreme Court in P.F. Sadawarthy vs. The Commissioner, Hindu Religious and Charitable Endowments, A.I.R. 1963 SC 510, held as follows:-
“A religious institution will be a temple if two conditions are satisfied. One is that it is a place of public religious worship and the other is that it is dedicated to, or is for the benefit of, or is used as of right by, the Hindu community, or any Section thereof, as a place of religious worship”.
38. As per Mukherjea's, the author of the “Hindu Law of Religious & Charitable Trusts, 1979 Edition”, there is no distinction between Religion & Charity in Hindu Law. He has opined that in the Hindu system, there is no demarcation between religion and charity. Charity is to be regarded as a part of religion.
39. In the same text, the author has further stated that in the Hindu ______________ https://www.mhc.tn.gov.in/judis Page No 33 of 48 W.P.No.22076 of 2018 system, religion and charity overlap with each other and do not admit of any differentiation. They are both integral parts of ‘Dharma’ or the rule of righteousness which the Hindu sages regard as the upholder of the entire fabric of the universe, both in its physical and moral aspects.
40. In Kalia Pillai (died) Vs. Kathayee Ammal Dharmam (Charities), Thiruvannamalai, (2003) 3 MLJ 122, the Division Bench of this High Court held that a religious charity which is a public charity should be associated with a Hindu festival or observance of a religious character. It may or may not be connected with a “math” or “temple”.
41. In A. Semmalai Gounder and others Vs. The Commissioner, Hindu Religious and Charitable Endowments and Another, (1996) 1 MLJ 245, it was held that "performing Annadhanam on Thaipoosam day in a private place is a religious endowment".
42. In The Commissioner, H.R. & C.E. Vs. C.V. Sudharsan and another, (2000) 3 MLJ 23), this Court held that the founder of the Charitable Trust had created a specific endowment for the performance of ______________ https://www.mhc.tn.gov.in/judis Page No 34 of 48 W.P.No.22076 of 2018 the “Thatiarchanai Service”, namely, offering food to devotees and to feed “Desanthris” in “Perumal Temples” in Chennai. The said endowment was held to be a religious endowment.
43. It was further held to be a specific endowment, since the desanthiris who were the beneficiaries who cannot be ascertained. The Court rejected the argument that there was a private trust and held it will definitely fall within the ambit of the Act.
44. In Bhupati Nath Smrititirtha Vs. Ram Lal Maitra, (1910) ILR 37 Cal 128, the Calcutta High Court had held that “a gift to an idol was not to be judged by the rules applicable to a transfer to a 'sentient being', and that dedication of properties to an idol consisted in the abandonment by the owner of his dominion over them for the purpose of their being appropriated for the purposes which he intends.
45. Thus, it was observed by Sir Lawrence Jenkins C.J. at Page No.138 that “the pious purpose is still the legate, the establishment of the image is merely the mode in which the pious purpose is to be effected” ______________ https://www.mhc.tn.gov.in/judis Page No 35 of 48 W.P.No.22076 of 2018 and that “the dedication to a deity may be” a compendious expression of the pious purposes for which the dedication is de- signed” vide also the observations of Sir Ashutosh Mookerjee at Page No.155.
46. The Bombay High Court in Lakshmidhar Misra Vs. Bangalal, (1950) 52 BOMLR 458, held that whether a religious endowment is a public or a private one is a mixed question of law and fact, the decision of which must depend on the application of legal concepts of a public and a private endowment to the facts found and is open to consideration by the Court.
47. Dealing with the distinction between public and private endowments in Hindu law, Sir Dinshah Mulla has said in his Principles of Hindu Law (11th Edition, Page No.529) that Religious endowments are either public or private. In a public endowment the dedication is for the use or benefit of the public. When property is set apart for the worship of a family god in which the public are not interested, the endowment is a private one. In other words, the distinction be- tween a private and a public endowment is that whereas in the for- mer the beneficiaries are ______________ https://www.mhc.tn.gov.in/judis Page No 36 of 48 W.P.No.22076 of 2018 specific individuals, in the latter they are the general public or a class thereof.
48. The Seven Judge Bench of the Hon’ble Supreme Court in Mahant Ram Saroop Dasji Vs. S.P.Sahi, 1959 AIR SC 942, held that “The essential distinction in Hindu law between religious endowments which are public and those which are private is that in a public trust, the beneficial interest is vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description and in a private trust, the beneficiaries are definite and ascertained individuals or who within a time can be definitely ascertained.
49. The Court was of the opinion that the public or private trust or a section thereof are not interested in the affairs of the trust. Such is the test for all private trusts in Hindu law. A trust may be created for the worship of a family idol in which the public may be interested. Those are cases of trust which began as a private trust but which eventually came to be thrown open to the public.
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50. In Hindu Religious Endowments Board Vs. Yeera Raghavachariar, A.I.R. 1937 Mad 750, this Court dealing with this question, referred to the decision in Bhupati Nath Smrititirtha vs Ram Lal Maitra, referred to supra and observed as under:-
“As explained in that case, the purpose of making a gift to a temple is not to confer a benefit on God but to confer a benefit on those who worship in that temple, by making it possible for them to have the worship conducted in a proper and impressive manner. This is the sense in which a temple and its endowments are regarded as a public trust". When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can ______________ https://www.mhc.tn.gov.in/judis Page No 38 of 48 W.P.No.22076 of 2018 only be regarded as public, intended to benefit the general body of worshippers.”
51. Merely because, the petitioner took steps to protect the land from A.Shanmugam who had filed A.S.Nos.94 of 2001 and A.S.No.19 of 2008 before the Additional District Court, Tiruvannamalai Ipso facto would not mean the official respondents have no right to administrator and take over the property under the provision of the H.R.C.E.Act, 1959, if there was a religious endowment.
52. In fact, there are sufficient indications to show in the impugned order, to suggest that steps have been taken to recover the property which were alienated by the petitioner Association to Thiru.Sivakumar, 9th respondent therein W.P.No.17171 of 2012. That apart, there are indications that the lands were alienated to twenty different persons by the petitioner association.
53. The facts on record further indicates that even if there were no religious endowments within the meaning of Section 6(17) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, there was ______________ https://www.mhc.tn.gov.in/judis Page No 39 of 48 W.P.No.22076 of 2018 a dedication of land for being used as a choultry for the travelers and the members of the family of Muthalnaicker. The right to manage the property stood vested only with legal descendents of Muthalnaicker as per the alleged “Silashana” inscription which was apparently existing but destroyed. There are no legal heirs of Muthalnaicker. Therefore, the land would vest with the Government under Doctrine of escheat. This doctrine was not unknown to India. The ancient lawgiver Manu had written in Manusawhita (Chapter IX, Verse 189) which reads as under:-
“Aharajyam Brahmanadravyam Rajna Nityamiti Sthiti, Itareshantu Varnanam Sarbabhave Harenripa.”
54. This means that the King has a right to all the properties belonging to persons who die without leaving any heir. But the King had no right to Brahminical property even on the failure of all heirs. This has been registered with the enactment of the Hindu Succession Act, 1956.
Principle/doctrine of escheat is now embodied in Section 29 of the Hindu Succession Act, 1956 which read as under:-
______________ https://www.mhc.tn.gov.in/judis Page No 40 of 48 W.P.No.22076 of 2018 “29. Failure of heirs:-
If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the Government; and the Government shall take the property subject to all the obligations and liabilities to which an heir would have been subject”.
55. In Prince Leslie and Co Ltd Vs Miss Violet Ouchterlong Wapshare and Others, (1969) 3 SCR 203 : AIR 1969 SC 843, the Hon'ble Supreme Court held that Government takes by escheat immovable as well as movable property for want of heirs or successors. In this country escheat is not based on artificial rules of common law and is not an incident of feudal tenure. It is an incident of Sovereignty and rests on the principle of ultimate ownership b y the state of all property within its jurisdiction. State must be owner as ultimate Lord.
56. In Kutichi Lal Rameshwar Ashram Trust Evam Anna Kshtera Trust Vs. Collector, Haridwar and others, (2017) 16 SCC 418, the Hon'ble Supreme Court held that escheat is a doctrine which recognises the State as paramount sovereign in whom property would vest only upon a clear and an established case of a failure of heirs. This ______________ https://www.mhc.tn.gov.in/judis Page No 41 of 48 W.P.No.22076 of 2018 principle is based on the norm that in the society governed b y the Rule of Law, the court will not presume that private titles are overridden in favour of the state, in the absence of a clear case being made out on the basis of a governing statutory provisions.
57. The term “escheat” is derived from the French word “eschoir” which signifies ‘to happen’ because it falls to the lord from an event and an unforeseen circumstance. The term ‘escheat’ means a reversion to the state in the absence of legal heirs. If a person dies intestate leaving no heirs whatsoever, then the doctrine of escheat can be invoked, whereby the estate of the deceased reverts to the State. Escheat is the right of the Government to own unclaimed property and assets. The doctrine of escheat is invoked when a person dies without any will or heirs. However, it also applies to cases where property remains unclaimed for a long period.
58. If there were no other members of founder's family available to inherit the property dedicated for the charitable purpose, the property would stand vested with the Government in terms of Section 29 of the ______________ https://www.mhc.tn.gov.in/judis Page No 42 of 48 W.P.No.22076 of 2018 Hindu Succession Act, 1956 by applying the principles of escheat.
59. Therefore, I do not find any reasons to interfere with the impugned order passed by the second respondent Assistant Commissioner appointing the fourth respondent as a fit person.
60. The petitioner is given liberty to challenge the impugned order passed by the second respondent Assistant Commissioner within a period of 30 days from the date of receipt of a copy of this order under Section 21 of the Hindu Religious and Charitable Endowment Act, 1959 under Section 21 of the H.R. & C.E.Act, 1959.
61. Liberty is also given to the petitioner to establish their rights either by filing appropriate application under Section 63 of the H.R.&C.E.Act, 1959 before the Joint Commissioner for a declaration that there was no dedication for “religious purpose” and there is no “religious institution” within the meaning of Section 6(18) of the Act and that there was only a “Charitable Endowments.” Within the meaning of Section 6(5) ______________ https://www.mhc.tn.gov.in/judis Page No 43 of 48 W.P.No.22076 of 2018 of the H.R. & C.E.Act, 1959.
62. If the petitioner is no advised, it may move such application before the Joint Commissioner under Section 63 of the H.R.&C.E.Act, 1959 within a period of thirty days from the date of receipt of a copy of this order. The Joint Commissioner shall endeavour to dispose the said application within a period of six months from the date of receipt of such application.
63. In case, an adverse order is passed by the Joint Commissioner against the petitioner, the petitioner has further remedy by way of an appeal before the Commissioner. Therefore, simultaneously, the petitioner shall also file an appeal under Section 69 of H.R. & C.E.Act, 1959 against the impugned order.
64. The proposed revision against the impugned order shall be taken up for hearing by the first respondent Commissioner only after the proposed petition under Section 63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 is disposed by the Joint ______________ https://www.mhc.tn.gov.in/judis Page No 44 of 48 W.P.No.22076 of 2018 Commissioner .
65. In case the petitioner does not chose to file petition under Section 63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 the first respondent shall endeavour to pass an order in the proposed revision under Section 21 of the Hindu Religious and Charitable Endowments Act, 1959 within a period of 6 months from the date of receipt of a copy of this order.
66. It is made clear that the fit person appointed shall continue to manage and administer the property till further orders are passed by the Joint Commissioner, H.R.& C.E Department. The fit person shall also take steps to recover all the properties which have been alienated, transferred or leased by the members of the petitioner association either in their individual capacity or as officer bearers of the petitioner association contrary to the provisions of the H.R.& C.E Act. The petitioner represented by its officer bears are expected to cooperate with the Fit person and the H.R.& C.E Department.
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67. Writ Petition stands dismissed with the above observation.
Connected miscellaneous files are dismissed.
16.09.2022
Index : Yes/No
Internet : Yes/No
Speaking : Non Speaking Order
kkd
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https://www.mhc.tn.gov.in/judis
Page No 46 of 48
W.P.No.22076 of 2018
To
1. The Commissioner,
Hindu Religious and Charitable Endowments, Nungambakkam, Chennai 34.
2.The Assistant Commissioner, Hindu Religious and Charitable Endowments, Thiruvannamalai.
3.The Joint Commissioner, Hindu Religious and Charitable Endowments, Villupuram.
4.Fit Person/Executive Officer, Arya Kshatriya Rajakula Nandhavana Madalaya Paripalana Sangam, Thiruvannamalai.
______________ https://www.mhc.tn.gov.in/judis Page No 47 of 48 W.P.No.22076 of 2018 C.SARAVANAN,J.
kkd Pre-delivery Order in W.P.No.22076 of 2018 16.09.2022 ______________ https://www.mhc.tn.gov.in/judis Page No 48 of 48