Madras High Court
Meenakshi (Died) vs The Idol Of Sri Muthu Boopala Samudra ... on 12 July, 2018
Author: M.Sundar
Bench: M.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.07.2018
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
S.A(MD)No.47 of 2004
1.Meenakshi (died)
2.P.Krishnaswami (died)
3.Dhanalakshmi
4.Saroja
[Appellants 3 and 4 are brought on
record as legal heirs of deceased
first appellant, vide order, dated
26.07.2010, made in M.P(MD)Nos.
1 to 3 of 2010].
5.Sasireka
[Fifth appellant is impleaded vide
order dated 03.04.2018, made in
C.M.P(MD)No.8992 of 2017] .. Appellants
Vs.
The idol of Sri Muthu Boopala Samudra Maha
Mariamman rep. by its hereditary trustee
M.Ramakrishnan .. Respondent
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, 1908, against the Judgment and decree dated 21.04.2004 passed in
Appeal Suit No.113 of 2003 by the District Court, Karur confirming the
Judgment and decree dated 29.09.2003 passed in Original Suit No.33 of 2000 by
the Sub Court, Kulithalai.
!For Appellants 3 and 4 : Mr.R.Devaraj
For Appellant No.5 : No appearance
^For Respondent : Ms.R.Rajalakshmi
for M/s.Sarvabhauman Associates.
:JUDGMENT
This litigation commenced more than one and half decades ago. To be precise, this litigation commenced on 19.12.2000, when 'idol of Sri Muthu Boopala Samudra Maha Mariamman represented by its hereditary trustee' [hereinafter referred to as 'said temple' for the sake of convenience and clarity] launched a suit against one Meenakshi and his son P.Krishnaswami and the suit being O.S.No.33 of 2000 on the file of 'Sub Court, Kulithalai', shall hereinafter be referred to as 'Trial Court' for the sake convenience and clarity.
2.Subject matter of the suit is a vacant site admeasuring 54 cents or thereabouts and comprised in S.F.No.42/7 in Kulithalai Village, Kulithalai Taluk, Karur District. The description of suit property as contained in the decree of the Trial Court is extracted infra for the sake of clarity. Description of property in the Trial Court decree reads as follows:
?Description of property Karur District, Kulitalai Taluk, Kulitalai village in SF No.42[7 out of 0.54 cents an extent of 43 feet x 34 feet North of T M R Radha Krishnan Chettiar occupation which is the property of Idol of Mariyamman, West of the property of Idol in occupation of M.A.T.C.Govindasamy Chettiar, South of the property of Idol in unathorised occupation of Sangili and others and East of Road?.
The aforesaid property shall hereinafter be referred to as 'demised land' for the sake convenience and clarity.
3.Case of the said temple is that the first defendant Meenakshi is a land lessee qua the demised land on an annual rent of Rs.400/- under the said temple. The simple plea of the said temple is that they need the demised land, the land lease has been terminated by invoking Section 106 of the Transfer of Property Act, 1882 ['T.P. Act' for brevity] and the defendants are in arrears of rent. On this basis, said temple laid the aforesaid suit in the Trial Court with prayers for recovery of possession of the demised land and arrears of rent being Rs.1,200/- at the time of institution of the suit. Arrears was sought to be recovered with interest. To be noted, it is not in dispute that the defendants being land lessees, have put up a superstructure in the demised land. Therefore, the prayer in the suit in the Trial Court was to the effect that the said temple sought recovery of possession after removal of the superstructure, that has been put up in the demised land by the defendants.
4.Defendants entered appearance. Second defendant filed a written statement and the same was adopted by first defendant. In the common written statement, the defendants admitted land lease. However, the plea of the defendants is that they are not in arrears of rent and therefore termination of lease is invalid. Though an attempt to deny the title was made, it was given up. On the aforesaid rival pleadings, the Trial Court framed four issues and the same are as follows:
?1.tHf;Fiur; brhj;J thjpf;F ghj;jpag;gl;ljh?
2.tHf;Fiur; brhj;ij thjp RthjPdk; bgw chpik cilatuh?
3.thjp fle;j fhy tUkhdk; U:.1200/- bgw chpikj;jFjp gilj;jtuh?
4.thjpf;F ntW vd;d ghpfhuk;??
5.Parties went to trial. On the side of the plaintiff, the hereditary trustee of the said temple, one Ramakrishnan was examined as P.W.1 and ten documents, i.e., Ex.A.1 to Ex.A.10 were marked. On the side of the defendants, second plaintiff P.Krishnaswami examined himself as D.W.1 and fifteen documents, i.e., Ex.B.1 to Ex.B.15 were marked.
6.The Trial Court in a cryptic, but clear and crisp Judgment, decreed the suit. Reasoning of the Trial Court is that the defendants have admitted that they are land lessees qua demised land under the said temple and therefore, issue Nos.1 and 2 set out supra, deserve to be answered in favour of the said temple. With regard to issue Nos.3 and 4, as the defendants had not established that they are not in arrears of rent and as the defendants have not produced any receipt to show that they have paid rent, the Trial Court returned a finding that the said temple is entitled to get the rental arrears of Rs.1,200/-. However, the Trial Court held that separate proceedings under Order XX Rule 12 of the Code of Civil Procedure, 1908 [hereinafter referred to as 'CPC' for brevity] shall be initiated for quantifying the same.
7.Complaining that they are aggrieved by the aforesaid decree of the Trial Court, two defendants in the Trial Court carried the matter in appeal by way of a regular first appeal under Section 96 CPC. This regular first appeal is A.S.No.113 of 2003 on the file of 'District Court, Karur', which shall hereinafter be referred to as 'first appellate Court' for the sake convenience and clarity.
8.First appellate Court being a Court of facts examined the appeal under Section 96 CPC, formulated points for consideration in accordance with Order XLI Rule 31 CPC. The three points for determination/points for consideration formulated by the first appellate Court are as follows:
? 1.thjpf;F tHf;Fiuapy; nfhhpathW tpsk;g[if ghpfhuKk; RthjPdg; ghpfhuKk; fpilf;ff;Toajh?
2.thjpf;F thlif ghf;fpahf U:.1200/- kw;Wk; vjph;fhy ,Hg;g[ vjph;thjpaplk; ,Ue;J fpilf;ff;Toajh?
3.,k;nky;KiwaPl;oy; nky;KiwaPl;lhsUf;F fpilf;ff; Toa ghpfhuk; vd;d??
After full contest, the first appellate Court dismissed the regular first appeal, confirming the Judgment and decree of the Trial Court.
9.To be noted, the reasonings of the Trial Court have already been set out supra and the same is articulated in paragraph No.7 of the Judgment of the Trial Court. That portion of paragraph No.7 of the Judgment of the Trial Court, which is most relevant, reads as follows:
?... ... ... Mdhy; jw;bghGJ gpujpthjpfs; tHf;Fiuapy; jhth brhj;J thjpf;F ghj;jpag;gl;lJ vd;Wk; ,jpy; jhq;fs; thlifjhuh;fs; vd;gija[k; xg;g[f;bfhs;fpwhh;fs;. thlif ghf;fpa[k; xg;g[f;bfhs;fpwhh;fs;. mjid brYj;jt[k; jahuhf ,Ug;gjhft[k; vjph; tHf;FiuapYk; rhl;rpaj;jpYk; xg;g[f;bfhz;Ls;shh;fs;. vdnt nkny fz;l fhuzq;fspypUe;J jhth brhj;J thjp Myaj;jpw;F ghj;jpag;gl;lJ vd;Wk; gpujpthjpfs; tHf;F brhj;jpw;F Mz;L 1f;F thlif U:.400/- Mz;Lf;F bfhLj;J te;jpUf;fpd;whh;fs; vd;gJk; bjhpatUfpd;wJ. vdnt jhth brhj;J thjp Myaj;jpw;F ghj;jpag;gl;lJ vd;Wk; tHf;Fiur; brhj;ij thjp gpujpthjpfsplkpUe;J RthjPdk; bgw chpikj;jFjp gilj;jth; vd;Wk; thjp gpujpthjpfsplkpUe;J fle;jfhy thlif ghf;fp U:.1200/-id bgWtjw;F chpikj;jFjp gilj;jth; vd;Wk; thjp vjph;fhy thlif ghf;fp bgw chpikj;jFjp gilj;jth; vd;Wk; mjid chpikapay; tHf;F tprhuiz Kiwr; rl;lk; tFKiw 20 tpjp 12d; fPH; xU jdpg;gl;l eltof;ifapd; K:yk; eph;zak; bra;Jf;bfhs;s ntz;oaJ vd;Wk; thjp gpujpthjpfsplkpUe;J ,t;tHf;fpd; bryt[ bjhifia bgw chpikj;jFjp gilj;jth; vd;Wk; vGtpdhf;fSf;F ,t;thwhf tpil mspf;fg;gLfpwJ. RthjPdk; xg;gilf;f gpujpthjpfSf;F 1 khj fhy mtfhrk; mspf;fg;gLfpwJ?.
The aforesaid finding returned by the Trial Court/reasoning of the Trial Court was confirmed by the first appellate Court and this is articulated in paragraph No.10 of the Judgment of the first appellate Court, which reads as follows:
?10.tHf;F fhyp kid mUs;kpF Kj;Jg{ghyrKj;jpuk; kfhkhhpak;kd; Myaj;jpw;F ghj;jpag;gl;lJ vd;gJ ,Ujug;gpYk; xg;g[f; bfhs;sg;gLfpwJ. tHf;F fhyp kidiag; bghWj;J thjp nfhtpYf;F tHq;fg;gl;Ls;s gl;lh th.rh.M.10 Mf jhf;fy; bra;ag;gl;Ls;sJ. nkYk; 1k; vjph;thjpapd; fzth; thjp Myaj;jpw;F 7.3.1951k; njjpapy; vGjpf; bfhLj;j mokid thlif xg;ge;jg; gj;jpuk; efy; th.rh.M.1 Mf ,t;tHf;fpy; jhf;fy; bra;ag;gl;Ls;sJ. me;j th.rh.M.1 thlif xg;ge;jk; ,Ujug;ghuhYk; xg;g[f;bfhs;sg;gLfpwJ. vdnt 1k; vjph;thjpapd; fztuhd bgUkhs; eha[L tHf;F fhypkidapy; thjp Myaj;jpy; ,Ue;J thliff;F mDgtk; bra;J tu xg;ge;jk; Vw;gLj;jpf; bfhz;oUe;jhh; vd;gJ thjp jug;gpy; bjspthf epU:gpf;fg;gl;Ls;sJ. th.rh.M.1d;go 1k; vjph;thjpapd; fzth; bgUkhs; eha[L tHf;F fhypkidia thjp Myaj;jplk; ,Ue;J thliff;F xg;g[f;bfhz;L mDgtk; bra;J te;jpUf;Fk; epiyapy;> nkw;brhd;d bgUkhs; eha[L ,we;j gpd;dh; bgUkhs; eha[Ltpd; kidtp kw;Wk; kfdhd ,t;tHf;F vjph;thjpfs; tHf;F fhypkidapy; thlifjhuh;fs; vd;w mog;gilapy; bjhlh;e;J mDgtk; bra;J tUk; epiyapy;> thjpf;F tHf;F fhyp kidapy; ,Uf;Fk; ghj;jpak; kw;Wk; chpikia kWf;f mUfijaw;wth;fs; Mthh;fs;. mt;thW thlifjhuh;fshf vjph;thjpfs; tHf;F fhyp kidapd; mDgtj;jpy; ,Ue;J tUk; epiyapy; vjph;thjpfs; brYj;j ntz;oa thlif ghf;fpia brYj;jf; nfhhp thjp tHf;FiuQh; K:yk; th.rh.M.2 mwptpg;ig mDg;gp ,Uf;fpwhh; vd;gJk;> me;j mwptpg;ig 1> 2 vjph;thjpfs; th.rh.M.3> 4 xg;g[jy; gotj;jpd; fPH; bgw;Wf; bfhz;oUf;fpwhh;fs; vd;gJk; bjhpa tUfpwJ. ... ... ...?
10.Undaunted defendants carried the matter to this Court by way of a second appeal under Section 100 CPC. This second appeal was admitted by this Court on 10.08.2004 on the following substantial questions of law:
?1.Whether the Courts below are correct in decreeing the suit for declaration, recovery of possession after removal of superstructure and for mesne profits without following the provisions of Sections 3, 4 and 11 of the Tamil Nadu City Tenants Protection Act?
2.Whether the finding of the Courts below that the appellants have denied the title of the respondent insofar as the land is concerned, is perverse?
3.Whether the Tamil Nadu City Tenant Act (2) 1996 in the Tamil Nadu City Tenant Protection Act, 1922 is applicable to private temple and whether the appellants are entitled to protection under Section 9 of the Tamil Nadu City Tenant Protection Act??.
11.Pending second appeal, first defendant in the Trial Court Meenakshi, who is appellant No.1, died on 26.12.2007 and her daughters were brought on record as appellants 3 and 4. Thereafter, defendant No.2 in the Trial Court, P.Krishnaswami, who was appellant No.2 before this Court also died on 05.04.2015. An impleading petition was taken out by one Sasireka claiming that defendant No.2 has bequeathed his rights in the suit property in her favour. The impleading petition was allowed and Sasireka has been brought on record as appellant No.5. Though obvious, for the purpose of clarity and for completing the narration of the case and array of parties, it is made clear that said temple, which was the plaintiff in the Trial Court, is the sole respondent in the instant second appeal.
12.Mr.R.Devaraj, learned counsel on record for appellants 3 and 4 is before this Court. Ms.R.Rajalakshmi, learned counsel of Sarvabhauman Associates (Law Firm) is before this Court on behalf of the sole respondent, i.e., said temple. This Court heard both the learned counsel.
13.To be noted, Mr.R.Devaraj, learned counsel was before this Court on behalf of appellant Nos.3 and 4. Appellant No.5 is represented by another counsel, Mr.S.Jayavel and his co-counsel Mr.V.Karuna. Their names, i.e., names of counsel on record for appellant No.5 are duly shown in the cause list. To be noted, this matter was listed yesterday also. However, learned counsel on record for appellant No.5 has not chosen to come before this Court either in the forenoon session or in the afternoon session, when the matter spilled over and continued. Therefore, notwithstanding the absence of counsel on record for appellant No.5, this Court proceeds with examining this appeal on merits and disposing of the same on merits for three reasons. The first reason is that there are three appellants and two of the appellants are duly represented by counsel, who is before this Court and who has argued the matter on merits. The case of the appellants cannot be severed and therefore, it is necessary that the appeal is heard and disposed of on merits. The second reason is that appellant No.5, as would be evident from the narration of the trajectory of this second appeal, has come on record by way of an impleading petition, claiming that she has a claim qua rights in suit property, under a Will, dated 16.06.2010, said to have been executed by deceased appellant No.2. If appellant No.5 is claiming only under appellant No.2, when legal heirs of appellant No.1 are here before this Court and are represented by a counsel, appellant No.5 cannot have any case better than that of appellant Nos.3 and 4 as after-all appellant No.5 is claiming under the other appellants. Therefore, appellant No.5 has to necessarily swim and sink with the co-appellants. The third reason for disposing of this appeal on merits is, the suit property belongs to said temple. As would be clear from the description in the cause title, the party to the lis itself is an idol in the said temple. The legal theory and settled law in this regard is that idols are construed to be minors and the Courts are parentis patriae. With regard to the properties vested in the idols, the Courts are custodia legis. For these three reasons, this Court proceeds to hear and dispose of this second appeal on merits.
14.The three questions protagonized as substantial questions of law by the appellants on which the instant second appeal was admitted on 10.08.2004, have already been extracted and reproduced supra. A perusal of the three substantial questions of law, on which the second appeal, was admitted would reveal that question Nos.1 and 3 go together. In other words, question Nos.1 and 3 are dovetailed. Question Nos.1 and 3 put together are on the basis that the said temple should be construed to be a private temple, whereby appellants before this Court, will have the benefit of Tamil Nadu City Tenants Protection Act. However, Mr.R.Devaraj, learned counsel for appellant Nos.2 and 3 very fairly submitted that he does not dispute the proposition that in the light of the amendment to the Tamil Nadu City Tenants Protection Act and the authoritative pronouncements on the same by the Hon'ble Supreme Court and this Court, if the said temple is a public temple, the defendants/ appellants will not be entitled to benefits of Tamil Nadu City Tenants Protection Act. Therefore, the question narrows down to whether said temple can be construed to be a private temple. To be noted, this issue was not raised in both the Courts below. However, being a question of law and this being a second appeal under Section 100 CPC, the same is examined. There is no dispute or disagreement before this Court that no document was filed before the Courts below to show that the said temple has been declared as a private temple by any competent Civil Court. In this backdrop, one has to test whether the said temple is a public temple. This takes us to the 'Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22/1959)', which shall hereinafter be referred to as 'TNHR&CE Act' for the sake of brevity, convenience and clarity. Under the TNHR&CE Act, a religious institution is defined under sub-section 18 of Section 6 and the same reads as follows:
?(18)?religious institution? means a math, temple or specific endowment and includes.-
(i)a samadhi or brindhavan; or
(ii)any other institution established or maintained for a religious purpose?.
There is no dispute or disagreement before this Court that the said temple definitely qualifies as a religious institution.
15.The moment an entity qualifies as a religious institution, a plain reading of the TNHR&CE Act would reveal that the said Act would automatically become applicable to the said institution. This is by operation of sub- section 3 of Section 1 of TNHR&CE Act, which reads as follows:
?It applies to all Hindu public religious institutions and endowments [including] the incorporated Dewaswoms and Unincorporated Dewaswoms?. For the purpose of having clarity on this aspect of the matter, one has to necessarily look at Section 1(3) along with Sections 2 and 4 of TNHR&CE Act. Section 2 of the TNHR&CE Act captioned 'Power to extend Act to Jain Religious Institutions and Endowments' reads as follows:
?(1)The Government may, by notification, extend to Jain public religious institutions and endowments, 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 institutions and endowments:
Provided that before issuing such a notification, the Government shall publish in the Fort St. George Gazette, a notice of their intentions to do so, fix a period which shall not be less than two months from the date of publication of the notice, for the persons interested in the institutions and endowments concerned to show cause against the issue of the notification and consider their objections, if any.
(2)In this Act, wherever the word ?Hindu? occurs, it shall, in respect of Jain public religious institutions and endowments to which the provisions of this Act have been extended under sub-section (1) be construed to mean ?Jain? unless the context otherwise requires?.
Section 4 which deals with 'Exemptions' reads as follows:
?The Government may, by notification exempt whether prospectively or retrospectively from the operation of any of the provisions of this Act or of any rules made thereunder any religious institution or religious or charitable endowment or vary or cancel any such exemption:
Provided that before such exemption is varied or cancelled, the persons affected shall be given a reasonable opportunity of showing cause against such variation or cancellation?.
16.A combined and harmonious reading of Sections 1(3), 2 and 4 of TNHR&CE Act would reveal that the moment an entity qualifies as a religious institution under Section 6(18) of TNHR&CE Act, it would come within the sweep and ambit of TNHR&CE Act. Only one category of institutions would not automatically come under the sweep of the TNHR&CE Act and those are Jain religious institution. For Jain religious institution alone, power is vested with the Government to extend the Act by way of notification. The moment it is Hindu religious institution, it automatically comes under the sweep of TNHR&CE Act is the sequitur. This is buttressed and fortified by Section 4, which vests the powers in the Government to exempt any religious institution either from certain specified provisions of TNHR&CE Act or the entire Act. Therefore, it follows as an inevitable sequitur that, moment an entity qualifies as a Hindu religious institution, which is governed by and comes under the sweep and ambit of TNHR&CE Act, if it has to be taken out of the sweep and ambit of TNHR&CE Act, the Government has to exercise its power of exemption under Section 4 and grant exemption either from some of the provisions of the TNHR&CE Act or the entire Act.
17.Celebrated S.P.Mittal's case reported in (1983)1 SCC 51 [lays down certain parameters] for a religious institution to file a suit and get a decree that it is a private temple. In the instant case, it is nobody's case that the said temple has got such a declaration from a competent civil Court and this has already been alluded to supra.
18.Therefore, in the light of the fact that the said temple is a public temple governed by TNHR&CE Act, it follows as a necessary corollary and an inevitable sequitur that the defendants and the appellants, who claimed under the defendants, do not have the benefit of the Tamil Nadu City Tenants Protection Act, as they are admittedly land lessees under the said temple qua the demised property. This answers both the questions of law Nos.1 and 3 against the appellants and in favour of the said temple, which is the respondent.
19.Question of law No.2 is with regard to whether denial of title of said temple by the appellants and finding of the Courts below in this regard, is perverse.
20.With regard to question of law No.2, Ms.R.Rajalakshmi, learned counsel appearing on behalf of the said temple refers to the documents filed in the Trial Court, particularly, Ex.A.10, which is the patta in the name of the said temple qua demised land and asserts that the demised land belongs to the said temple. Mr.R.Devaraj, learned counsel for appellant Nos.3 and 4 fairly submits that he is not pressing the denial of title plea, in the light of the admission in the written statement in the Trial Court by the original defendant that they are in fact land lessees under the said temple qua demised land. Therefore, there is no difficulty in answering substantial question of law No.2 also in favour of the said temple and against the appellants. In other words, substantial questions of law Nos.1 and 3 are answered by saying that the appellants do not have the benefit of Tamil Nadu City Tenants Protection Act, in the light of the said temple being public religious institution under the TNHR&CE Act and substantial question of law No.2 is answered by saying that there is no perversity whatsoever in the findings of the Courts below with regard to denial of title, as it is the admitted case of the original defendants in the written statement that they are land lessees under the said temple qua the demised land.
21.All the three substantial questions of law have thus been answered against the appellants and in favour of the respondent, i.e., said temple. However, before parting with the case, it is necessary to set out one aspect of the matter.
22.It is seen that the original defendants and obviously the appellants claiming under the original defendants, have admitted the position that they are land lessees under the said temple qua demised land. The moment, the landlord-lessee relationship is accepted, in the light of the fact that said temple is a public temple and in the light of lease being a land lease, T.P. Act comes into play. There is no scope for application of the erstwhile Rent Control Act. Under such circumstances, with regard to the notice terminating the lease, being notice dated 29.11.1999 [Ex.A.2] has been held to be valid by the Trial Court, inter-alia on the ground that the original defendants were in arrears of rent. The first appellate Court has sustained the termination notice on the ground that the original defendants have denied title of the said temple. To be noted, the moment a demised property comes under the purview of T.P. Act, for termination of lease under Section 106, no reason whatsoever needs to be given unlike the Rent Control Act, wherein falling in arrears of rent, denial of title, demised property required for landlord's own use, are all grounds that are necessary for a landlord to recover possession from a tenant for properties, which are governed by the Rent Control Act. As long as the property is governed by T.P. Act for termination of lease under Section 106 of the said Act, no reason needs to be advanced by the lessor. To this extent, it is clarified that de hors the fact that original defendants were in arrears of rent and de hors the position that denial of title is given up, the termination of lease of the original defendants by the said temple, vide Ex.A.2, is valid or in other words, termination of lease notice Ex.A.2 is valid and certainly deserves to be sustained in law, without taking recourse to any reasons for the same. However, Ms.R.Rajalakshmi, learned counsel on behalf of said temple submits, on instructions, that the demised land is required by the said temple for parking the temple car and also for the purpose of stocking pooja materials therein. Though this has no direct consequence or legal implication, as the lessor need not give any reasons, such as own use and occupation, this submission is also noticed by this Court.
23.In the light of the narrative supra and the answers that unfurl for the three substantial questions of law, on which the second appeal was admitted, the second appeal fails and is dismissed, confirming the concurrent Judgments and decrees passed by the Courts below. In the light of the fact that the Trial Court has returned a finding that the quantification qua arrears of rent shall be done by way of separate proceedings inter-alia under Order XXI Rule 10 CPC, it is deemed appropriate to leave the parties to bear their own costs.
To
1.The District Court, Karur.
2.The Sub Court, Kulithalai.
3.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
.