Madras High Court
S.Devi vs The Executive Officer on 31 January, 2022
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
S.A.No.412 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 05.01.2022
PRONOUNCED ON : 31.01.2022
CORAM
THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN
S.A.No.412 of 2019
and C.M.P.No.6156 of 2019
1.S.Devi
2.V.Sivakumar
3.Jemitton Fernando
4.Vimala Fernando ...Appellants
Vs.
1.The Executive Officer
Othakal Mandapam Town Panchayat,
Othakal Mandapam Village,
Coimbatore Taluk,
Coimbatore District.
2.The Executive Officer
Sri Arulmighu Angalamman Temple,
Othakal Mandapam Village,
Coimbatore Taluk,
Coimbatore District. ...Respondents
1/20
https://www.mhc.tn.gov.in/judis
S.A.No.412 of 2019
Prayer:- Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 22.02.2019 in A.S.No.18
of 2017 on the file of the learned I Additional Subordinate Judge, Coimbatore,
reversing the judgment and decree dated 01.02.2017 passed in O.S.No.1706 of
2010 on the file of the I Additional District Munsif, Coimbatore.
For Appellants : Mr.T.Thiyageswaran for
M/s.Waraon and Sairams
For R1 : Mr.D.Gopal, Government Advocate
For R2 : Mr.R.Sunil Kumar
JUDGMENT
This Second Appeal is directed against the judgment and decree of the learned I Additional Sub Judge, Coimbatore, in A.S.No.18 of 2017 reversing the judgment of the I Additional District Munsif, Coimbatore in O.S.No.1706 of 2010.
2. The appellants filed the suit in O.S.No.1706 of 2010 against the respondents seeking the prayer to declare that the appellants are also entitled to right over the suit property by using the common road to reach their respective 2/20 https://www.mhc.tn.gov.in/judis S.A.No.412 of 2019 lands and for permanent injunction restraining the second respondent, their agents, men, well wishers from obstructing the appellant's use of the common road.
3. The case of the appellants is that the suit properties and other properties originally belong to one Amaravathy Nachimuthu. She purchased the properties on 17.09.1967 and there was a civil suit in O.S.No.519 of 1990 and as per the compromise decree effected in the suit, Amaravathy Nachimuthu enjoyed the properties absolutely. There was some difficulty in enjoying the property and reaching the landed property belong to Amaravathy Nachimuthu and T.N.Thirumurugan. Both of them entered into a compromise with the hereditary trustees of Arulmigu Angalamman Koil, namely, Kuppusamy chettiar and Ponnusamy chettiar for the purpose of laying a public pathway. Compromise was reduced in writing and an exchange deed was executed between Amaravathy Nachimuthu as power agent of T.N.Thirumurugan, Kuppusamy chettiar and Ponnusamy chettiar. As per the exchange deed, the properties belong to Arulmigu Angalamman Koil, measuring 25cents in SF No.90 was exchanged to Amaravathy Nachimuthu for the benefit of Arulmigu 3/20 https://www.mhc.tn.gov.in/judis S.A.No.412 of 2019 Angalamman Koil in lieu of 30 1/2cents in SF No.511 belong to Amaravathy Nachimuthu. As per the exchange deed, 'A' schedule property was given to Amaravathy Nachimuthu and 'B' schedule property was given to Arulmigu Angalamman Koil. Prior to that, Kuppusamy chettiar filed O.S.No.1522 of 1993 on the file of the learned District Munsif, Coimbatore, seeking the relief of declaration that Kuppusamy chettiar is entitled to cause encumbrance of the suit property along with Ponnusamy for the benefit of temple. The suit was decreed on 27.10.1993. T.N.Thirumurgan executed a settlement deed in favour of first respondent on 22.02.2008 in respect of the suit properties for the purpose of forming a road for public purpose. On the basis of the exchange deed, first respondent acquired the property and is in possession and enjoyment of the property for the purpose of laying the road for public purpose. Appellants 2 and 3 are the subsequent purchasers of the property from T.N.Thirumurugan and they are enjoying the suit property. Now, the second respondent is giving trouble to the appellants for the use of road. Therefore, the suit for the aforesaid reliefs.
4. The case of the first respondent is that T.N.Thirumurgan executed gift deed dated 25.02.2008 in favour of the first respondent in respect 4/20 https://www.mhc.tn.gov.in/judis S.A.No.412 of 2019 of properties in SF Nos.90 and 511 measuring an extent of 28020square feet. Appellants 2-4 applied for formation of layout in the properties in SF No.511. In order to get approval for the layout, T.N.Thirumurugan gifted the aforesaid land in SF.Nos.90 and 511. First respondent did not take possession of the properties. Layout proposal was forwarded to local planning authority on 19.07.2007 and it was rejected by the Commissioner of Town and Country Planning on 27.10.2009. It was immediately informed to the donars on 16.11.2009. First defendant demanded the donars to cancel the gift deed and sent letters on 29.01.2010 and 31.03.2010. No action was taken to form a road, since, there was no necessity for that. First appellant filed writ petition in W.P.No.12160 of 2008 for the same relief and that was dismissed. There is no cause of action for the suit.
5. The case of the second respondent is that appellants had no semblance of right in the temple property and they come forward with a suit on the basis of manipulated and created documents purposefully. They clubbed the temple property with the property in the SF.No.511. The properties in SF.Nos.84 to 92 to an extent of 32.91acres of othakalmandapam village were granted to the 5/20 https://www.mhc.tn.gov.in/judis S.A.No.412 of 2019 temple as Devadayam Inam lands. Patta was granted in favour of the temple in respect of these lands. This temple is in possession in respect of 2.85acres in SF.No.90 as absolute owner. This property is not a common road or pathway.
6. As per the Hindu Religious and Charitable Endowment Act, prior approval and sanction has to be obtained from Commissioner of H.R and C.E department for any encumbrance or alienation in respect of the temple property. Therefore, the alleged exchange deed is not binding on the temple. The alleged exchange deed dated 27.04.1994 is void document and will not bind the respondent. The judgment in O.S.No.1522 of 1993 was obtained by committing fraud. The alleged settlement deed executed by T.N.Thirumurugan in favour of the panchayat has no legal force. Temple property cannot be taken away by private individuals without proper procedure. The suit has no merits and liable to be dismissed.
7. On the basis of these pleadings, the following issues were framed by the Trial Court, 6/20 https://www.mhc.tn.gov.in/judis S.A.No.412 of 2019
i)Whether the plaintiffs are entitled to the relief of declaration as prayed for?
ii)Whether the plaintiffs are entitled to the permanent injunction as prayed for?
iii)To what other relief?
8. During trial, PW1 and PW2 were examined and Exhibits A1 to A10 were marked on the side of the appellants/plaintiffs. DW1 was examined and Exhibit B1 to B6 were marked on the side of the respondents/defendants.
9. On considering the oral and documentary evidence, the learned Trial Judge found that appellants are entitled to right over the suit property for using as a common road to reach their respective lands. In appeal filed by the second respondent, First Appellate Court reversed the finding of the Trial Court on the ground that Exhibit A2 exchange deed and Exhibit A6 gift deed are not legally sustainable and appellants are not entitled for the reliefs claimed and dismissed the suit. Challenging the said judgment, appellants have filed this Second Appeal.
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10. During the admission of this Second Appeal, following substantial question(s) of law were framed,
i) Whether the decisions rendered by the Appellate Court that the exchange deed dated 27.07.1994 is null and void as per Section 34 of the Tamil Nadu Religious and Charitable Endowments Act, 1959 is correct?
ii) Whether the appellant's continuous usage for more than 25 years of possession of the schedule property could be considered to be as adverse possession and in such case whether the respondents are entitled to interfere in the possession and enjoyment of the appellants and the public usage of the suit property as pathway by execution of the gift deed dated 22.02.2008 to the panchayat as road?
iii) Whether the appellants and the public or otherwise entitled to use the schedule property by way of easementary right and in such an event whether the respondents are entitled to interfere and disturb the appellants and the general public from using the suit property as pathway?
11. The learned counsel for the appellants submitted that the trustees of the second respondent temple exchanged 25cents of land for 30 8/20 https://www.mhc.tn.gov.in/judis S.A.No.412 of 2019 1/2cents of land with the predecessor in title of the appellants 2 and 3. It is for the beneficial enjoyment of the property of the temple and for the public at large. Appellants claim only the right to use the suit property as a common road to reach their lands. They did not claim exclusive right in the common road. Many persons have constructed buildings and they have access only through this common road. The suit common road is used not only by the appellants but the public including the public visiting the temple. With the exchange of the properties, temple has better use of its properties. Because of the procedural lapse in effecting the exchange, the dismissal of the suit filed by the appellants is not sustainable. Therefore, learned counsel for the appellants prayed for setting aside the judgment of the Courts below and for decreeing the suit.
12. In response, learned counsel for the second respondent submitted that hereditary trustees, in collusion with predecessor in title of the plaintiffs executed the exchange deed. It is nothing but depriving the temple of its property without proper procedure. In case of gift or alienation etc., of temple property, proper permission has to be obtained from proper authority under Section 34 of Tamil Nadu Hindu Religious and Charitable Endowment Act. The 9/20 https://www.mhc.tn.gov.in/judis S.A.No.412 of 2019 procedure contemplated under this Section was not followed and no permission was obtained from the competent authority. The exchange of property is not for the benefit of temple but for the benefit of private individuals to develop their lands for dividing into plots. For the individual benefit, temple's property cannot be sacrificed. It is seen from the written statement of the first respondent that first respondent has not accepted the gift executed in its favour for forming the road. It has not even taken possession. Therefore, the dismissal of the suit is correct and he prayed for confirming the judgment of the Courts below.
13. Learned counsel appearing for first respondent supported the case of the second respondent and submitted that first respondent has not accepted the gift and has not taken possession of the property. It is also submitted that the layout application submitted by the appellants was dismissed.
14. Learned counsel for the first respondent relied on the judgment reported in S.A.No.1329 of 2008 (Arulmigu Thirunageshwaraswamy Devasthanam Vs. Anna Kaithari Nesavu Thozhilalar Sangam and others) for the proposition that sale without sanction 10/20 https://www.mhc.tn.gov.in/judis S.A.No.412 of 2019 of the Commissioner would be null and void.
10. According to the second defendant, the proposal was followed by the authorities concerned and would state that the Deputy Commissioner has recommended the proposal vide his letter dated 10.11.1982 to the Commissioner, HR&CE. It is further stated that the Commissioner has also accepted the proposal, but only with reference to the sale price, the above said formalities had not been completed. However, pointing to the above said defence version, as such, no material is forthcoming on the part of the defendants. Be that as it may, when the suit properties admittedly belong to the plaintiff's temple and the plaintiff's temple fall under the domain of TamilNadu Hindu Religious and Charitable and Endowments. It is noted that as per Section 34 of the above said Act, any sale of the property belonging to the religious institution, without the sanction of the Commissioner as provided therein would be null and void. When the position of law is as above and when there is no material placed on record by the defendants that the Commissioner, HR&CE had accorded the sanction for the sale envisaged under Ex.A1/B1 , as rightly contended by the plaintiff's counsel, particularly, when the sanction of the Commissioner HR&CE is mandatory, bypassing the same, there cannot by any encumbrance of the temple properties by the Managing Trustee and therefore, as rightly 11/20 https://www.mhc.tn.gov.in/judis S.A.No.412 of 2019 putforth by the plaintiff's counsel, the proposal envisaged under Ex.A1/B1 by the Managing Trustee, for the sale of the suit properties belonging to the plaintiff's temple is null and void and unenforceable in the eyes of law. In such view of the matter, the arguments putforth by the defendants' counsel that the plaintiff should have sought for the relief of declaration that the sale proposal envisaged or mooted under Ex.A1/B1 is null and void, as such, cannot be accepted. When as per the law as above discussed, any sale of the temple's properties without the prior sanction of the Commissioner, H/R&CE is null and void, the plaintiff is not required to seek for any declaration with reference to the void agreement as such. It is a well settled principle of law that a void document is not required to be avoided. In this connection, the plaintiff's counsel would rely upon the decision of the Apex Court reported in 2008 (15) SCC 673 [Ranganayakamma and another Vs. K.S.Prakash (D) by Lrs and Others]
15. Considered rival submissions and perused the records.
16. It is seen from the case of the parties submissions, made by the counsel on behalf of the parties that through Exhibit A2 exchange deed 12/20 https://www.mhc.tn.gov.in/judis S.A.No.412 of 2019 25cents belong to second respondent temple was exchanged to one Amaravathy Nachimuthu in lieu of 30 1/2 cents in SF.No.511. Temple's property situate in SF.No.90. It is claimed by the appellants that before the execution of this exchange there was a suit in O.S.No.1522 of 1993 filed by Kuppusamy chettiar, on his behalf and on behalf of Ponnusamy chettiar for the declaration that Kuppusamy chettiar is entitled to cause of encumbrance of the suit property for the benefit of the Arulmigu Angalamman Koil. It is claimed that as per this decree alone the exchange deed in Exhibit A2 came to be executed. On the other hand, it is contented by the respondents that the suit in O.S.No.1522 of 1993 is a collusive suit. The first respondent is not a party to the suit. The Executive Officer of the temple is not a party to the suit. The hereditary trustees without any iota legal right filed the suit collusively and got a decree and then executed Exhibit A2. Exhibit A2 exchange deed is illegal and unenforceable.
17. Section 34 of Hindu Religious and Charitable Endowment Act, deals with alienation of immovable trust property. It reads as follows
34.Alienation of immovable trust property.
(1) Any exchange, sale or mortgage and any lease for a term exceeding five years of any immovable property, belonging to, or 13/20 https://www.mhc.tn.gov.in/judis S.A.No.412 of 2019 given or endowed for the purpose of, any religious institution shall be null and void unless it is sanctioned by [the Commissioner] as being necessary or beneficial to the institution :
Provided that before such sanction is accorded, the particulars relating to the proposed transaction shall be published in such manner as may be prescribed, inviting objections and suggestions with respect thereto; and all objections and suggestions received from the trustee or other persons having interest shall be duly consider by [the Commissioner].
[Provided further that the Commissioner shall not accord such sanction without the previous approval of the Government].
.............
18. Section 34 of Hindu Religious and Charitable Endowment Act, clearly prohibits any exchange, sale, mortgage and any lease for a term exceeding five years of any immovable property of a religious institution, unless it is sanctioned by the Commissioner. This sanction can be given only if it is necessary or beneficial to the institution. Before according sanction, the 14/20 https://www.mhc.tn.gov.in/judis S.A.No.412 of 2019 particulars relating to proposed sanction should be published in the manner prescribed, inviting objections and suggestions and those objections and suggestions should be considered by the Commissioner. Commissioner should not accord sanction without previous approval of the Government. These provisions are mandatory provisions. It is no doubt that none of the procedures contemplated in Section 34 of Tamil Nadu of Hindu Religious and Charitable Endowment Act, 1959 was followed while executing Exhibit A2 exchange deed.
Therefore, this Court finds that the exchange of properties effected through Exhibit A2 is null and void. Appellants cannot claim any right or relief in respect of the suit properties on the basis of Exhibit A2 exchange deed.
19. It is observed in the above said judgment in S.A.No.1329 of 2008 (Arulmigu Thirunageshwaraswamy Devasthanam Vs. Anna Kaithari Nesavu Thozhilalar Sangam and others) that,
18. As rightly contended by the plaintiff's counsel, the property belonging to the temple has to be safeguarded by the Court and in this connection, it is seen that the Division Bench of our Hon'ble High Court vide order dated 31.01.2017 in W.P.No.2290 of 2017 has held as follows:
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https://www.mhc.tn.gov.in/judis S.A.No.412 of 2019 “The other reason is that when we talk about religious institution suing or being sued, it is in effect the idol. Law is well settled that idol is a minor and therefore, somebody should sue and be sued on behalf of the minor. Infact, the Courts have gone as far as saying that courts are parenti locus qua idol. To draw an anology, it may be relevant to point out that a company (irrespective of whether is is a public company or private limited company) is a juristic person and therefore, a natural person would represent the company in all proceedings. The religious institution being made a party to or becoming a party to any legal proceedings is akin to the situation.” I had an occasion to consider the above said principles of law in the decision rendered by me dated 07.08.2018 in S.A.No.622 of 2005 [ Navratan and others Vs. Chennai Sri Ekambareswarar Devasthanam, rep. By its Executive Officer, 315 Mint, Street, Chennai -3] It is noted that W.P.No.2290 of 2017 has been levied challenging the G.O.Ms.No.260, Tourism Culture and Religious Endowments Department styled as the conditions for appointment of Executive Officers Rules, 2015.
20. The Courts are parenti locus qua idol. Therefore, Courts cannot permit the squandering of the property of the temple by illegal means. In 16/20 https://www.mhc.tn.gov.in/judis S.A.No.412 of 2019 this view of the matter, this Court answers that the decision of the First Appellate Court that exchange deed dated 27.07.1994 is null and void as per Section 34 of Tamil Nadu of Hindu Religious and Charitable Endowment Act, 1959 is correct for substantial question of law number one; There is no proper pleadings and evidence with regard to the claim of appellants' adverse possession and therefore appellants cannot claim protection of their alleged possession on the basis of the claim of adverse possession in respect of the suit property as a pathway for substantial question of law number two; There is also no proper pleadings and evidence with regard to the claim of easementary right over the suit property and therefore, appellants cannot claim right of easementary right in respect of the suit property as a pathway for substantial question of law number three. It is found that Exhibit A2 exchange deed is void ab initio and it cannot be acted upon. The learned First Appellate Judge rightly found that Exhibit A2 exchange deed is not legally sustainable document and therefore, appellants cannot claim any relief on the basis of Exhibit A2 exchange deed. This Court, for the reasons stated above, confirms the finding of the learned First Appellate Judge.
21. In fine, this Court confirms the judgment of the First 17/20 https://www.mhc.tn.gov.in/judis S.A.No.412 of 2019 Appellate Court in A.S.No.18 of 2017 dated 22.02.2019 and dismisses the Second Appeal with the costs of the respondents. Consequently, connected miscellaneous petition is closed.
Ep 31.01.2022
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
To
1. The I Additional Subordinate Judge,
Coimbatore.
2. The I Additional District Munsif,
Coimbatore.
3. The Section Officer,
VR Section,
High Court of Madras.
18/20
https://www.mhc.tn.gov.in/judis
S.A.No.412 of 2019
G.CHANDRASEKHARAN.J,
Ep
(Pre-Delivery Judgment in)
S.A.No.412 of 2019
and C.M.P.No.6156 of 2019
19/20
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S.A.No.412 of 2019
31.01.2022
20/20
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