Madras High Court
K.Velayutham vs Indira Gandhi on 16 July, 2015
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.07.2015
CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
Second Appeal (MD) No.599 of 2014
1.K.Velayutham
2.Murugan
3.Subbiah Pandian
4.karthigai Selvan ... Appellants/Appellants/Defendants
Vs.
Indira Gandhi ... Respondent/Respondent/Plaintiff
Second Appeal is filed under Section 100 C.P.C against the judgment
and decree of the lower Appellate Court dated 10.10.2013 passed in A.S.No.22
of 2013 on the file of the I Additional District and Sessions Judge,
Tirunelveli confirming the judgment and decree of the trial Court dated
28.02.2013 passed in O.S.No.92 of 2010 on the file of the Subordinate Judge,
Sankarankovil.
!For Appellants : Mr.P.Natarajan
^For Respondent : Mr.R.Subramanian
for Mr.R.J.Karthick
:JUDGMENT
This Second Appeal arises out of the decree of the I Additional District Judge, Tirunelveli dated 10.10.2013 made in A.S.No.22 of 2013. The said appeal was filed against the decree of the trial Court namely, Sub Court, Sankarankovil dated 28.02.2013 made in O.S.No.92 of 2010. The respondents herein who were the plaintiffs in the said suit filed the suit for the following reliefs:
?(i)a declaration that the suit properties are the private trust properties belonging to Arulmigu Balasubramania Swamy Temple;
(ii)a consequential injunction restraining the appellants herein/defendants from interfering with the right of the respondents herein/plaintiffs as Akdhars of the temple in the management of the temple and its properties; and
(iii)for a permanent injunction restraining the appellants defendants from alienating or encumbering the suit temple and its properties?.
2.The suit was resisted by the first appellant contending that by virtue of a sale deed dated 15.07.1995 he got the akdharship/trustship in respect of the suit temple and its property transferred in his favour and that the subsequent unilateral cancellation of the sale deed dated 15.07.1995 was legally invalid and ineffective. It transpires that purporting to exercise the right sought to be conferred on him under the sale deed dated 15.07.1995, the first appellant in the capacity as akdhar/trustee of Arulmigu Subramaniasamy Temple created a mortgage in favour of the appellants 3 and 4/defendants 3 and 4. However, the respondent herein/plaintiff, intending to project herself to be a person interested in safeguarding the interest of the properties of the temple, chose to file the above said suit against the appellants herein for the reliefs indicated supra.
3.The suit was decreed by the trial Court by a judgment and decree dated 28.02.2013 and on appeal, the lower Appellate Court confirmed the decree of the trial Court by a judgment and decree dated 10.10.2013. As such, the present Second Appeal has been filed against the judgment and decree passed by the trial Court as confirmed by the lower Appellate Court. The Second Appeal was admitted on 21.04.2015 on the following substantial question of law:-
?Whether the suit for declaration that the temple is a private temple and its properties are private trust properties is maintainable in view of the bar provided under Section 108 read with Section 63(a) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959?
4.The arguments advanced by Mr.P.Natarajan, learned counsel for the appellants and by Mr.R.Subramanian, learned counsel for the respondent were heard. The judgments of the Courts below and the materials available on record sent for from the Courts below were perused and were also taken into consideration.
5.The Courts below misdirected themselves in embarking upon a roving enquiry as to whether the mortgage created by the first appellant herein in favour of the appellants 3 and 4 herein was valid and binding on the temple. In fact, the same was not the issue sought to be raised in the plaint. The plaint was coined in such a way that alienation or encumbrance had not taken place and the plaintiff was seeking an order of restraint preventing the appellants herein/defendants from alienating or encumbering not only the properties of the temple but also the suit temple itself.
6.Previously, one V.Kandan, the then Hereditary Trustee of Sri Balasubramaniasamy Temple filed a suit against the Commissioner, HR & CE, Chennai challenging surcharge proceedings against him for pledging the jewels of the temple and against the order of removal from the Hereditary Trusteeship passed by the Commissioner. In the said suit, O.S.No.40 of 1974, decided by the Subordinate Judge, Tirunelveli on 26.07.1976, the removal of V.Kandan from the Office of Hereditary Trusteeship was held to be not proper and it was set aside on the basis of the finding that the pledging of the jewels of the temple without the sanction of the Commissioner was for the benefit of the temple. Nearly 34 years after the said decision in the above said suit, the present suit came to be filed with similar averments with a prayer in an indirect way that the suit temple is a private temple and the suit properties are the private trust properties of the temple.
7.Section 63(a) of the Tamil Nadu Hindu Religious and Endowments Act, 1959 confers power on the Joint Commissioner or Deputy Commissioner to decide a dispute or a matter as to whether an institution is a religious institution. As against the order of Joint Commissioner or Deputy Commissioner, an appeal is provided under Section 69 to the Commissioner, HR & CE. Any person aggrieved by the order made in such an appeal is entitled to file a suit under Section 70 (1). From the decree of such a statutory suit, an appeal is also provided under Section 70(2) to the High Court. Hence, obviously for deciding the question as to whether the institution is a religious or not, a complete scheme has been provided in the Act conferring power on the original authorities, providing appeal to the appellate authority and a statutory suit with the right of appeal to the High Court.
7.Section 108 of the Tamil Nadu Hindu Religious and Endowments Act, 1959 is reproduced hereunder.
?108.Bar of suits in respect of administration or management of religious institutions, etc., No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of Law, except under, and in conformity with, the provisions of this Act.?
8.Though there is no total bar for approaching the Court of law for a decision regarding the issue as to whether an institution is a religious institution or not, the Section 108 makes it clear that the suit shall be instituted only in accordance with and in conformity with the provisions of the Tamil Nadu Hindu Religious and Endowments Act, 1959. Here is a case in which the respondent herein/plaintiff has not chosen to file the suit following the procedure contemplated under the provisions of the Tamil Nadu Hindu Religious and Endowments Act, 1959 referred to above. Straight away, the respondent herein/plaintiff has chosen to file the suit for a declaration that the suit properties are the private trust properties of the Sri Balasubramaniasamy Temple.
9.Learned counsel for the respondent herein/plaintiff made a meek attempt to contend that the status of the temple as to whether it is a public religious institution or not was not a question that has arisen for consideration in the suit and on the other hand, it was the rival claim of akdharship/trusteeship to the suit temple that had been sought to be agitated by filing the suit. This Court is not in a position to accept the above said contention of the learned counsel for the respondent herein/plaintiff for the simple reason that at more than one place, the respondent herein/plaintiff has asserted that the suit temple is a private temple. The prayer itself has been framed in an ingenious way by seeking a declaration that the suit properties are the private trust properties of Sri Balasubramaniasamy Temple and thereby trying to get an indirect declaration that the suit temple is a private temple. This is more clearly reflected in the third prayer wherein the respondent herein/ plaintiff has prayed for a permanent injunction against the appellants herein/defendants not to encumber or alienate not only the suit properties but also the suit temple. By seeking such a decree, the respondent herein/plaintiff wants to get a declaration that the suit temple viz., Sri Balasubramaniasamy Temple is a private temple, without following the procedure prescribed under the Act for the decision of the said question. Hence, this Court comes to the conclusion that the prayer made in the plaint is a prayer falling within the ambit of Section 63(a) of the Tamil Nadu Hindu Religious and Endowments Act, 1959 and hence, the suit filed without following the procedure contemplated in the Act is not maintainable.
10.Learned counsel for the respondent herein/plaintiff made yet another attempt to contend that the properties of the temple had been mortgaged by the first appellant herein in favour of the appellants 3 and 4 and only in order to safeguard the interest of the temple, she had to approach the Court with the suit. But unfortunately, the same is not the prayer and the same has not been made the cause of action for filing the suit. The suit has also not been filed for the said relief. The ultimate intention of the respondent herein/plaintiff seems to be to get a declaration regarding the character of the temple, as to whether it is a public religious institution or not.
11.Yet another attempt was made by the learned counsel for the respondent herein/plaintiff to contend that since a relief of injunction was also sought for, the same can be segregated from the other prayers and the suit for injunction cannot be dismissed as not maintainable as the Civil Court has got jurisdiction to try such suit under Section 9 of the Civil Procedure Code, 1908. Of course, if it has been filed as a simple suit for injunction without making any averment that the suit temple is a private temple and without making a prayer, direct or indirect that the suit temple is a private temple such a contention can be countenanced. Since the main intention of the respondent herein/plaintiff is to get a declaration in an indirect way that the suit temple is a private temple, the relief of injunction sought for as a consequential relief cannot be granted. However, the above view expressed by this Court will not mean that either the persons interested in the temple or the authorities under the Act cannot initiate proceedings challenging the validity of such encumbrance made by the first appellant herein.
12.For all the reasons stated above, the substantial question of law is answered holding that the suit straight away filed without following the procedure contemplated under the provisions of the Tamil Nadu Hindu Religious and Endowments Act, 1959 is not maintainable. In view of the answer given to the substantial question of law, the Second Appeal has to succeed and the decree of the trial Court as confirmed by the lower Appellate Court is liable to be set aside.
13.In the result, the Second Appeal is allowed. The Original Suit shall stand dismissed on the ground of maintainability and not on merits. It shall be open to the respondent herein/plaintiff to approach the authorities under the relevant provisions of the Tamil Nadu Hindu Religious and Endowments Act, 1959 for appropriate relief. No costs. Consequently, M.P(MD)No.2 of 2014 is closed.
To
1.The I Additional District and Sessions Judge, Tirunelveli
2. The Subordinate Judge, Sankarankovil .