Madras High Court
The Idol Of vs P.K.Thoppulan Chettiar on 9 December, 2015
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.12.2015
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
S.A.No.438 of 2006
and
C.M.P.No.3646 of 2006
The Idol of
Sri Renganathaswamy
rep.by its Executive Officer /
Joint Commissioner
Srirengam, Trichy-5 ... 4th Defendant / Appellant /
Appellant
vs.
1.P.K.Thoppulan Chettiar
Ramanuja Koodam
Annadhana Trust
rep.by its Managing Trustee
K.Santhana Gopalakrishnan
No.15, Amman Mandam Road
Srirengam, Trichirappalli-6 ... Plaintiff / 1st Respondent / 1st
Respondent
2.R.K.Rajendran
3.R.T.Ramaiyan
4.R.Gopalraj ... Defendants 1 to 3 / Respondents 2 to 4 /
Respondents 2 to 4
PRAYER: Appeal is filed, under Section 100 of the Civil Procedure Code,
against the Judgment and Decree, dated 31.08.2005 and made in A.S.No.118 of
2005, on the file of Principal District Judge, Trichirapalli, confirming the
Judgment and Decree, dated 10.11.2004, and made in O.S.No.60 of 2004, on the
file of II Additional Subordinate Judge, Trichirapalli.
!For Appellant : No appearance
^For Respondents : Mr.M.Vallinayagam, Senior Counsel
for Mr.K.S.Sankar Murali for R1
R2 to R3 ? No appearance
Mr.K.Sukumaran for R4
:JUDGMENT
The short facts of the case are as follows:
The first respondent / plaintiff herein had filed a suit in O.S.No.60 of 2004, before the learned II Additional Sub Judge, Trichy, against the respondents 2 to 4 / defendants 2 to 4 and the appellant / 4th defendant, seeking permission to sell the suit property to the fourth respondent / third defendant and such other reliefs.
2. The first respondent / plaintiff had submitted that his Charity is a Private Trust. One K.Santhana Gopalakrishnan was the Managing Trustee. The said Trust had been established by his grandfather, namely, P.K.Thoppulan Chettiar, who had purchased the suit property under a registered Sale Deed, dated 09.06.1887. The said P.K.Thoppulan Chettiar had in turn executed a Settlement Deed, dated 08.07.1901, pertaining to the suit property stating that his descendants have to perform free ceremony to the Temple. The said P.K.Thoppulan Chettiar (paternal grandfather) had raised a stone Mandabam, wherein the fourth defendant Temple had been conducting annual pilgrim procession ceremonies, namely, Tamil Month of Chittirai Festival and Tamil Month of Aadi 18th Festival, during these functions, the first respondent / plaintiff's grandfather had been honoured by the devotees of the fourth defendant Temple. The said stone Mandabam is still existing.
3. The first respondent / plaintiff had further submitted that during the month of Chitirai every year, there had been a ceremonial procession and at that time the general public and devotees had been provided with drinking water and green-gram porridge by the grandfather of the first respondent / plaintiff. Subsequently, as per the Settlement Deed, dated 08.07.1901, the grandfather of the plaintiff had mentioned that his three sons have to perform the said free service out of their income without any break or stoppage, besides the honour shown by the fourth defendant Temple had to be continued as a tradition unbroken. Further, after spending money towards free service the balance amount had to be shared from the amount delivered by the Trust property. In the event of insufficient funds from the Trust, the same had to be arranged through the family income so as to continue the tradition unbroken.
4. Further, the first respondent / plaintiff had submitted that the surviving legal heirs of P.K.Thoppulan Chettiar, namely, defendants 1 and 2 had not evinced any interest for the performance of the Charity. The second respondent / first defendant was the brother of the first respondent / plaintiff and the third respondent / second defendant was his paternal uncle's son and they had not contributed anything for the due performance of the Charity. The first respondent / plaintiff had been performing the Charity as mentioned in the Settlement Deed out of his own funds. The suit property was originally leased out to Sree Ranga Titers for a period of twenty years. The main tenant had let out the said premises to some other tenants, who had occupied the same as out tenants. Further, there had been encroachment in the suit property. Hence, a suit had been filed during 1984 for eviction and recovery of possession. In view of the encroachment, the first respondent / plaintiff was unable to derive sufficient income from the said property and hence it was very difficult to him to perform the Charity on account of pending litigation. Under these circumstances, the first respondent / plaintiff had decided to alienate the suit property for the better performance as well as development of the Charity as per the Settlement Deed. The fourth respondent / third defendant was willing to purchase the property subject to encumbrance and he was a capable person to proceed with the eviction suit to evict the encroachers through a Court of law.
5. The first respondent / plaintiff had further submitted that he entered into a Sale Agreement, dated 01.02.2001, with the fourth respondent / third defendant for the sale of the suit property for the total sale consideration of Rs.20,00,000/-. Hence, he had filed the above suit seeking permission to sell the suit property to the fourth respondent / third defendant. The total extent of the property was 29,136 sq.ft., out of which an extent of 4136 sq.ft., had been reserved for the performance of the Charity and the same was not the subject matter of the Sale Agreement. The price offered by the fourth respondent / third defendant was a reasonable sale consideration for the property to an extent of 25,000 sq.ft. The first respondent / plaintiff had to incur atleast a sum of Rs.50,000/- per annum towards performance of charities. If the said total sale consideration was invested in a Nationalized Bank, the interest would be Rs.1,20,000/- per annum, which would be more than sufficient to meet out the expenses for performing the Charity. Hence, the first respondent / plaintiff had prayed for permission to alienate the suit property to and in favour of the fourth respondent / third defendant.
6. The respondents 2 and 3 / defendants 1 and 2 had filed their written statement stating that on 08.07.1901 the first respondent / plaintiff Trust had been established. Their work was to conduct the Trust without any difficulty. Actually, the second respondent / first defendant was very busy with his works and hence he had permitted the first respondent / plaintiff to run the Trust as a Managing Trustee. The first respondent / plaintiff and the respondents 2 to 4 / defendants 1 to 3 had received honour from the appellant / fourth defendant Temple at the time of festivals, which were being conducted annually in the Tamil month of Chitirai and Aadi 18th day. They were well aware of the sale agreement entered into between the first respondent / plaintiff and fourth respondent / third defendant and they had no objection for further negotiation. They had also accepted that the first respondent / plaintiff was willing to sell the suit property excluding 4136 sq.ft., with superstructure i.e. Stone Mandabam to the fourth respondent / third defendant.
7. The fourth respondent / third defendant had filed his written statement stating that he was well aware of the Settlement Deed, dated 08.07.1901, executed by P.K.Thoppulan Chettiar. The first respondent / plaintiff was the Managing Trustee and the respondents 2 and 3 were residing far away from the suit property and taking advantage of the situation, some third parties had encroached the suit property and on their instigation the actual tenant had committed default in paying the rent. He offered to purchase the suit property besides he had extended his cooperation to evict the encroachers in accordance with law. He had agreed to purchase the suit property for a total sale consideration of Rs.20,00,000/-. He was ready to deposit the said amount in any Nationalized Bank, if permission was granted for alienation of the suit property. If the suit property had to be brought into public action, the encroachers would create unnecessary problems in order to prevent the public auction. If the suit property was sold for the said amount, the Trust could arrange free service as per the Settlement Deed without any problem.
8. The appellant / fourth defendant had filed his written statement stating that as per the Settlement Deed, dated 08.07.1901, their Temple was having rights as per Law. Furthermore, as per the said Settlement Deed, three services had to be performed as per Hindu religious customs. Further, H.R. & C.E. Act would be applicable to the first respondent / plaintiff. The settlee P.K.Thoppulan Chettiar had discharged his rights over the suit property and they had been given to the fourth defendant Temple. In the Tamil month of Chitirai, the ceremonial procession being conducted, was related to the Hindu religious function. The Settlement Deed, dated 08.07.1901, revealed that the settlor discharged his property to perform free service and therefore the suit property was given to the Temple. As per the Settlement Deed, the property cannot be gifted, besides the instrument revealed that after expenditure for performing Charity, the balance amount had to be kept as family funds. On the strength of this contention, the property could not be negotiated by the first respondent / plaintiff. Further, the first respondent / plaintiff had committed default in paying the rent for the past 20 years, besides the encroachers, who occupied the suit property. The first respondent / plaintiff Trust was not a Private Trust and it was a Public Trust. The sale agreement entered into between the first respondent / plaintiff and the fourth respondent / third defendant could not be bound on the appellant / fourth defendant. Further, the sale consideration is on the lower side. Therefore, the suit is not maintainable in accordance with law. Hence, he prayed for dismissal of the suit.
9. After recording the contents of all the parties, the Trial Court had framed the following issues:
i. Whether the first respondent / plaintiff Trust is a Public Trust or Private Trust?
ii. Whether any specific endowment had been arranged for the appellant / fourth defendant Temple?
iii. Whether Tamil Nadu Hindu Religious & Charitable Endowment Act would bind upon the first respondent / plaintiff Trust?
iv. Whether the suit property had been affected by charge? v. Whether a portion of the suit property had been encroached? vi. Whether sale of the suit property was beneficial to the first respondent / plaintiff Trust?
vii. Whether the Sale Agreement, dated 01.02.2001, entered into between the first respondent / plaintiff and the fourth respondent / defendant was useful to the plaintiff and the Trust?
viii. Whether the first respondent / plaintiff was entitled to obtain permission for the sale of the suit property?
ix. Whether the appellant / fourth defendant could control the first respondent / plaintiff Trust's administration and management? x. Whether the first respondent / plaintiff could seek permission for the sale of the suit property as per the Cypress Doctrine? xi. Whether the Trial Court had jurisdiction to grant the relief sought for?
xii. What other reliefs the first respondent / plaintiff was entitled to?
10. On the side of the first respondent / plaintiff, one witness was examined as P.W.1 and 17 documents were marked as Exs.P1 to P17 and on the side of the defendants', five witnesses were examined as D.Ws.1 to 5 and two documents were marked as Exs.D1 and D2.
11. P.W.1 had adduced evidence that during Tamil month of Chitirai, Gajendra festival procession was held and in the Tamil month of Aadi, 18th day festival had been started from Stone Mandabam and the appellant / fourth defendant Temple Archagars offered honour. During the periods of festival, the first respondent / plaintiff Trust had to provide green gram porridge, meals and drinking water to the devotees. As per the Settlement Deed, three sons of P.K.Thoppulan Chettiar had to meet out the expenditure for the above said services from the income derived out of the suit property and also from commercial business. The appellant / fourth defendant had no locus standi to raise questions regarding the above mentioned pilgrims.
12. Further, P.W.1 had adduced that as per the charitable performance, the descendants of P.K.Thoppulan Chettiar should make the said services, while others were not permitted. Sofar, the appellant / fourth defendant had not interfered with the Trust administration. Further, the above said arrangements had to be carried on out of the Temple premises. The appellant / fourth defendant had never monitored or controlled the first respondent / plaintiff's administration and management. The Trust is a Private Trust as per the Settlement Deed executed by P.K.Thoppulan Chettiar. There was no dispute between the appellant / fourth defendant and the first respondent / plaintiff with regard to Temple administration and Trust administration. The Temple Archagars honoured the Managing Trustee of the Trust outside the Temple. As per the Settlement Deed, the Temple authorities could not claim any right over the Trust administration. The appellant / fourth defendant had been maintaining the temple properties as per the Property Maintenance Record, wherein the suit property had not been included. The same had not been settled in favour of the appellant / fourth defendant Temple. The specific purpose for executing the Settlement Deed was to provide drinking water, eatables etc., to the pilgrims during the festival period. The appellant / fourth defendant had not initiated any action or communication or objection with regard to the performance of charitable measures for the Trust. As per the Settlement, the total number of persons have not been fixed for the said facilities. The settlee had not assigned any privilege or right to the appellant / fourth defendant.
13. P.W.1 had further adduced that some portion of the suit property had been occupied by the encroachers and some portion had been occupied by the tenants and sub-tenants. The tenants had not paid rent. His father had filed a suit in O.S.No.706 of 1984, before the Sub Court, Trichy, against Jagannatha Chettiar and others. Further, in the said suit, some defendants had executed Sale Deeds and attempted to encroach the suit property. Hence, his father had filed a suit for declaration and possession. He had let out a portion for rental. He had not received sufficient income from the suit property and hence he had spent his own money for the said purpose. The civil suits are pending for more than 20 years. He was in requirement of Rs.50,000/- to meet out the expenditure for the said purpose mentioned in the Settlement Deed. He had entered into a Sale Agreement, dated 01.02.2001, and agreed to sell the suit property for a total sale consideration of Rs.20,00,000/-.
14. D.W.1 had adduced evidence that on 08.07.1901, P.K.Thoppulan Chettiar had executed a Settlement Deed and as such the third defendant was having lawful rights over the suit property. The charitable performance related to the Hindu Religious function and hence H.R. & C.E Department was having right to maintain the suit property. The settlor assigned the rest of the property to the Temple. The festival, being conducted in the Tamil month of Chitirai, was a Hindu religious function and hence it was under the control of the Temple authority. The settlor had mentioned in the Settlement Deed that the property had been assigned for charitable performance, which clearly proved that the property belonged to the Temple. The Settlement Deed revealed that the suit property should not be gifted to others. The income from the property had to be spent for the charitable performance and the balance was to be retained as family funds. As such, the first respondent / plaintiff had no locus standi to alienate the property. The first respondent / plaintiff had not proved that the tenants had not been paying rent and nothing was found as encroachment. The first respondent Trust is a Public Trust and not a Private Trust. Therefore, the Sale Agreement entered into between the first respondent / plaintiff and the fourth respondent / third defendant was not binding on the fourth defendant / appellant and the sale consideration is on the lower side.
15. D.Ws.2 to 5 had adduced evidence, which were identical to the evidence of D.W.1.
16. On recording the evidences of witnesses and on perusing the exhibits marked by both the parties and on hearing the arguments of the learned counsel on either side, the Trial Court, by Judgment and Decree, dated 10.11.2004, decreed the suit and directed the fourth respondent / third defendant to deposit the sale consideration with the Indian Bank under the fixed deposit scheme and permitted the first respondent / plaintiff to withdraw the interest alone once in a year in order to meet out the expenses incurred for charitable performances by the plaintiff Trust. The learned Trial Judge had observed that the first respondent / plaintiff Managing Trustee and his successors will not be permitted to withdraw the deposited amount.
17. Against the Judgment and Decree, dated 10.11.2004, the appellant / fourth defendant had preferred an appeal in A.S.No.118 of 2005, before the learned Principal District Judge, Tiruchirappalli. The learned First Appellate Judge, after hearing the arguments of the learned counsel on either side and on perusing the typed set of papers, by Judgment and Decree, dated 31.08.2005, dismissed the appeal and confirmed the Judgment and Decree, dated 10.11.2004, passed by the Trial Court. Being aggrieved by the concurrent findings of the Courts below, the present second appeal has been preferred by the appellant / fourth defendant.
18. The highly competent counsel for the appellant / fourth defendant has raised the following grounds:
i. The Lower Court had failed to consider the oral and documentary evidence in a proper perspective.
ii. The Lower Court ought to have held that the first respondent / plaintiff Trust is a public religious Trust.
iii. The Lower Court ought not to have held that the first respondent / plaintiff Trust is a Private Trust.
iv. The Lower Court had failed to note that the first respondent / plaintiff Trust would come within the purview of Section 6(19) of the Act 22/59 and ought to have held that the charities are specific endowments, endowed either in favour of Sri Renganathaswamy Koil, Sri Rangam or for the due performance of the charities out of the income derived from the suit property. The present Managing Trustee Santhana Gopalakrishnan has been performing charities and the respondents 2 and 3 / defendants 1 and 2 have not evinced any interest in the performance of the charities. The suit property was originally leased out to Sri Ranga Fibres and they had subleased the property and the suit filed against them for recovery of possession is pending and a portion was also encroached by anti social elements and therefore the first respondent / plaintiff is not able to maintain the suit property and derive income. Therefore, he decided to alienate the property and the fourth respondent / third defendant had approached him for the purchase of the suit property subject to encumbrance and a Sale Agreement was executed with the fourth respondent / third defendant and a sum of Rs.20,00,000/- was fixed as sale price for 25,000 sq.ft., out of the total extent of of 29136 sq.ft., and the remaining extent of 4136 sq.ft., was reserved for performance of charities. The first respondent / plaintiff had incurred a sum of Rs.50,000/- yearly for the performance of charities and if the sale price of Rs.20,00,000/- is deposited in a Nationalized Bank, it would fetch Rs.1,20,000/- per annum and the cypress doctrine is applicable and the restrictice clause in Ex.P1 is unworkable and it violates Sections 10 and 11 of Transfer of Property Act and there is no charge. v. The respondents 2 and 3 / defendants 1 and 2 have not raised any objection for alienation.
vi. The case of the appellant / fourth defendant is that the suit property has been dedicated absolutely in favour of the Idol for the performance of religious charity. The Trust is a Public Religious Trust and it is not a Private Trust and the provisions of Sections 6(18) and 6(19) of H.R. & C.E. Act is applicable to the Trust and as per Section 34, the Commissioner of H.R & C.E. Department has to accord sanction for alienation of Immovable Trust property and the Civil Court has no jurisdiction to decide the issue and Doctrine of Cypress is applicable to the first respondent / plaintiff Trust and the restrictive clause is applicable to the first respondent / plaintiff Trust and the provisions of Sections 10 and 11 of Transfer of Property Act is not applicable to the first respondent / plaintiff Trust. vii. The Trial Court had decreed the suit without considering the oral and documentary evidence adduced by the appellant / fourth defendant and the First Appellate Court had also confirmed the same.
Hence, for all the reasons, the learned counsel has prayed to set aside the Judgment and Decree of the Trial Court and to dismiss the suit with costs.
19. Mr.M.Vallinayagam, learned Senior Counsel, for the first respondent / plaintiff has argued the case and submitted a written submission stating that it is evident from Section 3 of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959 that the provisions of said Act may be applicable to the Private Trust only upon notification on the grounds of mismanagement or maladministration by the trustee of the Private Trust. It is not the case of the appellant that there is mismanagement or maladministration by the first respondent / plaintiff. There is no notification extending the provision of the said Act. The charities to be performed are not confined only to Hindus, but it is to the public in general without any religion, creed and caste. In support of his contention, he has referred to Section 3 Tamilnadu Act 22 of 1959, which reads as follows:
3.Power to extend the Act to charitable endowments:-
(1) Where the Government has 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 injury to be made by an 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 endowments, 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 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 endowment 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 interest of 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 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 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.
20. The learned counsel for the first respondent / plaintiff, in support of his contentions, has cited the following decisions:
i. The State of Madras v. Seshachalam Chettiar Charities, reported in 1960 (II) MLJ 591;
ii. Commissioner for Hindu Religious and Charitable Endowments, Mysore, v. Ratnavarma Heggade (SC), reported in 1977 (1) SCC 525;
iii. Ponnuswamy Nadar v. State of Tamil Nadu, reported in 1985 (II) MLJ 492; iv. The Commissioner, H.R. & C.E. (A) Dept., etc., v. S.Ramasami Iyer & others, reported in 2001 ? 2 ? L.W. 654;
v. The Commissioner, H.R. & C.E (ADMN) Department v. N.A.Ramaswamy Chettiar (DB), reported in 2001 (2) CTC 351;
vi. Dharma Raja v. Rama Ammal, reported in 1978 (I) MLJ 492; vii. Sri Krishnavilas Bajanai Madam v. Commr., H.R. & C.E.Dept., reported in (2007) 2 MLJ 15;
viii. The idol of Sri Bhoologanathaswamy, etc., & another v. N.Kanagasabapathy Pillai & others, reported in 2011 ? 1 ? L.W. 852; ix. Shanti Devi v. State, reported in AIR 1982 Delhi 453; x. Changiah, A. etc. - Petitioners, reported in 1997 ? 3 ? L.W. 537; xi. Arulmighu Mahalakshmi Temple v. M.S.Srinivasa Raghavan, reported in 2004 (4) CTC 114;
xii. S.M.Mohideen v. R.V.S.Pillai, reported in AIR 1974 SC 740; xiii. Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker, reported in (1997) 2 SCC 255;
xiv. Srinivasachariar, V.K. v. K.Ramanujam, reported in 1999 LW 335; xv. K.Muniswamy v. K.Venkataswamy, reported in AIR 2001 Karnataka 246;
21. In State of Madras's case (cited supra), The Commissioner for Hindu Religious and Charitable Endowments, Madras, reported in (1960) 2 MLJ 121 has been referred to, wherein it has been held that a religious institution like a temple would not be a Hindu religious institution or a Hindu religious endowment, unless it was exclusively Hindu in character. The same principle is also applicable to a charitable endowment. The very definition of charitable endowment in section 6(4) of the Madras Hindu Religious and Charitable Endowment Act (XIX of 1951) postulates the test of exclusiveness. Unless, the benefit of the endowment is confined wholly to Hindus, it would not be a charitable endowment as defined in that section. The prefix ?Hindu? to expression ?public charitable endowment? in section 3 emphasizes this feature. Section 3 cannot be invoked unless the endowment is exclusively Hindu in character.
22. In Ratnavarma Heggade's case (cited supra), the Hon'ble Supreme Court has held that the applies act is only to all Hindu Religious endowments and it does not cover Jain religious endowments in absence of any notification under Section 3(b) in regard to extension of provisions of Act to such endowments.
23. In Ponnuswamy Nadar's case (cited supra), it has been held that the water pandal charities in the month of Chithrai every year on the occasion of Bramotchavam of Arulmigu Meenakshi Sundareswara Temple at Vilathikulam not inside the Hindu temple, but during the festival time. This will not be claimed as of right by any Hindu nor can it be said that the endowment is for the benefit of the Hindus.
24. In S.Ramasami Iyer's case (cited supra), it has been held that feeding Brahmins during the car festival of Meenakshiamman Temple, Madurai, is noway connected with the festival connected with the Temple as it is only the occasion of celestial marriage, which has been taken advantage for feeding the people at the distance place from Madurai.
25. In N.A.Ramaswamy Chettiar's case (cited supra), it has been held that in the absence of divestment of title in favour of a deity the endowment is not specific endowment so as to attract TN Act 22/1959.
26. In Dharma Raja's case (cited supra), it has been held that mere execution of a deed of gift or an instrument is not enough to constitute a valid endowment. It is necessary that the executant shall divest himself of the properties. There must be a transfer of the apparent evidences of ownership from the donor to the donee and in cases where there is no real dedication of properties but only a creation of perpetuity in favour of one's own decendants, the alleged gift in favour of the idol or religious or charitable institution becomes void. This position of law is clearly laid down in various decisions.
27. In Sri Krishnavilas Bajanai Madam's case (cited supra), it has been held that when there is no evidence that at any point of time, any member of the public had participated in the management or even had right of worshipping or participating as a matter of right in any function, the plaintiff institution, established for the purpose of doing bajanais and for doing poojas for some days is to be considered as a private trust only and not as a public charitable institution.
28. In N.Kanagasabapathy Pillai's case (cited supra), it has been held that Thannerpandal Dharmam during Chithirai festival in Srirangam Temple is not a specific endowment and the Trust is not a Public Trust.
29. In Shanti Devi's case (cited supra), it has been held that Section 1 of Trusts Act (2 of 1982) does not apply to Public Trusts and Charitable Trusts and there is a distinction between Private and Public Trusts. The said Act applies to Private Trusts only other than religious or charitable endowments.
30. In Changiah's case (cited supra), it has been held that Section 34 of the Trust Act has no application and the trustee has to file a civil suit.
31. In Arulmighu Mahalakshmi Temple's case (cited supra), it has been held that when the Trust is secular in nature, suit by trustees seeking permission to sell the Trust property is maintainable.
32. In S.M.Mohideen's case (cited supra), it has been held that a dedication may be either absolute or partial. The property may be given out and out to the deity or it may be subjected to a charge in favour of the deity. Whether the endowment is absolute or partial, primarily depends on the terms of the grant. If there is an express endowment, there is no difficulty. If there is only an implied endowment, the intention has to be gathered on the construction of the document as a whole. If the words of the document are clear and unambiguous, the question of interpretation would not arise. If there be ambiguity, the intention of the founders has to be carefully gathered from the scheme and language of the grant. Even surrounding circumstances, subsequent dealing with the property, the conduct of the parties to the document and long usage of the property and other relevant facts may be to be considered in an appropriate cause. On facts that on the terms of clause 9 of the instant deed, read with the other material provisions of the deed that there is no absolute endowment in favour of the temple or for the charities. The property, however, is impressed with the obligation or charge of performing the three kattalais mentioned in clause 9 of the petition deed in the manner indicated therein. The alienation of the property is, therefore, not invalid and the obligation to perform the above mentioned charities follow with the property.
33. In Naramadaben Maganlal Thakker's case (cited supra), it has been held that a document has to be read harmoniously as a whole giving effect to all the clauses contained in the document, which manifest the intention of the person, who executed the document.
34. In Srinivasachariar's case, it has been held that the recitals employed in an instrument that without encumbering the property settled the charities have to be performed means for securing the continuity of the performance of the charities.
35. In K.Muniswamy's case (cited supra), it has been held that restraint on alienation is void under Section 10 of the Transfer of Property Act.
36. The first respondent / plaintiff has further submitted that the appellant Temple relied on the decision reported in AIR 1965 SC 1916 before the Courts below for the proposition of law that the public charity during the Rathotchavam is a Hindu festival and religious charity. In that case, the H.R & C.E.Department sought to levy contribution fee on the private Trust. In the Trust Deed, it has been directed to feed Brahmin during Rathotchavam in the Prasanna Venkatachalapathy Temple, Gunaseelam. The Hon'ble Supreme Court has held that public charity has real connection with the Rathotchavam and therefore the said charity is a religious charity under Section 6(13) of the Madras Act 19/1951. The new corresponding Section under the Tamilnadu Act 22 of 1959 is section 6(16), which reads as follows:
Section 6 (16) 'religious charity' means a public charity associated with a Hindu festival or observance of a religious character, whether it be connected with math or temple or not.
But, specific endowment is different from public charity. As per Section 6(19) of TN Act 22/1959.
'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).
Therefore, it is pellucid that the performance of charity must be within the precincts of the temple. The appellant temple also had relied on the case reported in 1999 MLJ Supp.506, wherein it has been held that endowment mainly created for doing public charity connected with the temple during Panguni festival is a specific endowment. But, in the instant case, the performance of charity are not directed to be performed in Srirangam Temple. It has been directed to be performed only in the suit property.
37. The first respondent / plaintiff has further submitted that in the instant case, it has been admitted that the management and administration of the first respondent / trust is only by the lineal descendants of the founder of the Trust. The H.R. & C.E.Department never appointed trustee for the first respondent at any material point of time. Any member of public has not at all participated in the management of the first respondent / trust.
38. The learned counsel appearing for the fourth respondent / third defendant has adopted the arguments of the learned Senior Counsel for the first respondent / plaintiff.
39. From the above discussions, this Court is of the view that:
i. The grandfather of the first respondent / plaintiff, namely, P.K.Thoppulan Chettiar had purchased the suit property on 09.06.1887 for a sum of Rs.750/-. It clearly proves that he was the absolute owner of the suit property. He had executed a Trust Deed, dated 08.07.1901, to and in favour of his decendants on condition that they have to do charitable performance to the pilgrims during the Temple festival days viz., Tamil Month of Aadi 18th day and Tamil Month of Chithirai festival, out of the income of the suit property.
ii. The suit property originally belonged to P.K.Thoppulan Chettiar and subsequently it has been succeeded by his descendants, who took the responsibility of maintaining the Trust and they are private individuals. Hence, the first respondent / plaintiff Trust is a Private Trust. iii. According to the first respondent / plaintiff Trust, the appellant / fourth defendant has absolutely no role to provide drinking water, meals and green gram porridge to the devotees. The same has been provided by the descendants of P.K.Thoppulan Chettiar. The aim and object of the first respondent / plaintiff Trust is to provide the above mentioned eatables and drinking water during the festival of the appellant / fourth defendant Temple alone. The same is to appreciate the gifts from the almighty. iv. As per the Trust Deed, the descendants have to undertake the charitable performance to the Temple pilgrims from the income derived out of the suit property. The balance of income has to be accredited to the family funds. As such, the suit property belongs to the descendants of the settlor P.K.Thoppulan Chettiar.
v. In the suit, the original cause of action arose on 08.07.1901 i.e.the date on which the registered Settlement Trust Deed was executed. As per the said Settlement Trust Deed, the appellant / fourth defendant is only a formal party. The first respondent / plaintiff had not sought any relief from the appellant herein and as such the appeal is not sustainable under law besides if the suit property is alienated by the first respondent / plaintiff to and in favour of the fourth respondent / third defendant, the appellant / fourth respondent will not be prejudiced, further the aim and object is to continue the charitable performance without any shortcoming. vi. The Trial Court had granted permission to the first respondent / plaintiff for alienating the suit property to and in favour of the fourth respondent / third defendant to undertake the charitable performances to the pilgrims in a satisfactory manner. Further, the Trial Court had imposed a stringent condition that the total sale consideration shall be deposited in a Nationalized Bank and permitted the first respondent / plaintiff to withdraw the interest once in a year. It clearly shows that the alienation has been done in order to fulfil the aim and object of the Trust Deed and absolutely there is no personal gain for the first respondent / plaintiff. vii. As per the Settlement Trust Deed, the descendants of the settlor have also to be honoured at the time of the above said two festivals as it was given as honour to the settlor. Taking advantage of this, the appellant / fourth defendant cannot claim any civil rights over the suit property. viii. The learned counsel for the appellant / fourth defendant, on 04.12.2015, filed a memo stating that there is no instruction from the party.
It shows that the appellant / fourth defendant Temple has no interest to establish their case. Thereafter, this Court had posted the matter on 07.12.2015, under the caption ?Part-heard?. On 07.12.2015, the learned counsel for the appellant / fourth defendant had filed a affidavit to the effect that no argument was advanced by him on 04.12.2015. As per the Code of Civil Procedure, plaintiff's side evidence will be recorded at first and then defendant's side evidence will be recorded. Thereafter, plaintiff's side arguments will be heard and then defendant's side arguments will be heard. This procedure will not be applicable to any Appellate Court. In the instant second appeal, the appellant's counsel as well as the respondents' counsel are equally competent to reveal the Trial Court's Judgment as well as the appellate Court's Judgement with regard to shortcoming of the Judgments. On 04.12.2015, the learned counsel for the first respondent / plaintiff had disclosed the factual position of both Courts' Judgments. Therefore, the matter is posted today i.e. 09.12.2015 as part-heard. In such circumstances, the memo and affidavit filed by the learned counsel for the appellant / fourth defendant are rejected as they are not appropriate.
40. On considering the facts and circumstances of the case, on perusing the typed set of papers and on hearing the arguments advanced by the learned counsel for the first respondent as well as for the fourth respondent, this Court is of the view that this appeal is liable to be dismissed.
41. In the result, the second appeal fails and it is dismissed and the Judgment and Decree, dated 31.08.2005, passed by the learned Principal District Judge, Trichirappalli, in A.S.No.118 of 2005, confirming the Judgment and Decree, dated 10.11.2004, passed by the learned II Additional Subordinate Judge, Trichirappalli, in O.S.No.60 of 2004, are confirmed. No costs. Consequently, connected civil miscellaneous petition is closed.
To
1.The Principal District Judge, Trichirappalli.
2.The II Additional Subordinate Judge, Trichirappalli..