Madras High Court
T. Palaniswamy Gounder vs A.V.G. Ponnuswamy Chettiar And Ors. on 23 August, 1991
Equivalent citations: (1992)1MLJ109
ORDER Srinivasan, J.
1. This revision petition is filed by the third respondent in the application before the court below which was one under Section 92 of the Code of Civil Procedure for leave to institute the suit of obtaining the reliefs set out in the plaint. In the view I am taking, it is not necessary to refer in detail to the respective contentions put forward by the parties in the court below.
2. According to the plaintiffs, by a registered deed dated 7.9.1900 Mandi Venkatanaicker, a respectable and prominent citizen of Erode created a trust, endowing his property for religious and charitable purpose enumerated in the document. By a supplemental deed dated 12.4.1911, more properties were vested for the purpose of carrying out the endowment. The plaint proceeded to state that the trustees were ordained to maintain regular accounts, work out a balance sheet every year and carry out the religious functions and charitable objects enumerated in detail in the documents without any variation or substraction. One of the properties endowed was a building in Pove-ethi Street, which was previously known as Mandi Street in Erode and that is said to be the suit property. According to the plaintiff, it was leased out to the first plaintiff in 1942 by the trustees for the purpose of carrying on a business and he was let into possession. It is alleged that the rent paid by him was utilised for carrying out the objects of the trust. The plaint refers to certain arrangements between the heirs of the founder, which, according to the plaint, were evidenced by a document dated 1.8.1951. Plaintiffs 2 to 4 are the sons of the first plaintiff, who were taken as partners in the business and the business was continued in the name of M/s. A.V.G. Ponnuswami Chettiar and Sons, the fifth plaintiff. The first plaintiff received a letter from the second defendant on 19.7.1988, informing him that he had sold the property to the third defendant and directing him to pay monthly rent of Rs. 650 to the purchasers. The plaintiffs have alleged that the sale in favour of the third defendant is invalid and void and no right, title and interest passed on his favour. According to the plaintiffs there is an express prohibition in the documents of trust against alienation and consequently the sale is void. It is also alleged in the plaint that the plaintiffs are interested in preserving the trust as citizens of Erode. Alleging that there is no trustee at present of the trust, they have came forward with the present proceedings for a declaration that the alienation in favour of the third defendant is null and void and not binding on the trust, framing a scheme for the enforcement and smooth running of the trust and other reliefs.
3. Thus, according to the plaint the trust was created under the document of 17.9.1900 and added to by a document dated 12.4.1911. The plaint has expressly stated that the trust is a religious and charitable endowment. It is seen from the document dated 17.9.1900 that the main object of the trust was performance of Poojas to Sri Vigneswar-aswamy whose idol was installed in the front portion of the choultry built by the founder in S. No. 1075-A. According to the document, the founder was already utilising the income\from the properties, which was his self-acquisition for the said purpose. The document directs the balance, if any, after spending the income for the pooja of Sri Vigneswara to be spent for feeding people from outside the village who stay in the choultry. Another clause in the document is to the effect that if there is any interruption in the feeding, the income shall be spent for (i.e., recitation of vedas and lectures, etc., on the Lord. Thus the document shows that the dominant purpose of the trust was a religious one and the document provides only the surplus income for the purpose of feeding "Desantaris" (pilgrims) who stay in the chatram. The second document dated 12.4.1911 was necessitated as the founder could not carry out the purpose of the trust with the income from the properties already endowed. It is stated in the document that the number of persons who were benefited by the said trust was increasing and in order to make the trust permanent it was necessary for him to endow some more properties. With that object, the second document was executed. The objects of the trust were also widened. Under Clause 8 of the document, the following purposes were set out;
(i) to spend not less than Rs. 100 for 'Sri Jayanthi', and 'Vaikunda Ekadasi' festivals in Sri Ranganathaswamy Koil, Erode Town;
(iii) to spend not less than Rs. 5 peryear forthe Thanneer Pandal" at the time of "Natavaki Uthsavam" in the month of Chitrai in Sri , Varadaraja Shrine at Kancheepuram.
(iv) to spend not less than Rs. 15 per year such as "Ubayam" or for "thadiyaradanam" (feeding) in the temple of Sri Ranganatha at Srirangam;
(v) to spend below Rs. 150 for the samadhi of the founder after his life time.
It is not necessary for me to discuss whether the endowment for the last object relating to Samadhi is valid or not.
4. What I have said above is sufficient to show that the endowment is a religious endowment within the meaning of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. "Religious Endowment" is defined in Section 6(17) as follows:
"Religious endowment" or "endowment" means all property belonging to or given or endowed for the support of maths or temples, or given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity; and includes the institution concerned and also the premises thereof; but does not include gifts of property made as personal gifts to the archakas, service-holders or other employees of a religious institution.
5. Section 6(16) defines "religious charity" as a public charity associated with a Hindu festival or observance of a religious character, whether it be connected with a math or temple or not. "religious institution" is defined in Section 6(18) as a math; temple or specific endowment.
6 Section 5 of the Hindu Religious and Charitable Endowments Act declares that Sections 92 and 93 of the Code of Civil Procedure shall cease to apply, to Hindu Religious Institutions and-Endowments.
7. On the averments made in the plaint and on the terms of the documents relied on by the plaintiffs, the trust is only a religious endowment as defined by the Act and it is not an exclusive charitable endowment or secular endowment. Hence Section 92 of the Code of Civil Procedure ceases to be applicable to the said trust. Even if it is assumed for the sake of argument that a part of the trust is for secular purpose there is a provision in the Act in Section 63(g) for apportionment and allocation. The same has to be done by the Deputy Commissioner of Hindu Religious and Charitable Endowments. After due enquiry Section 108 of the Act bars a suit or other legal proceeding in respect of administration or management of religious institution or any other matter or dispute for determining or deciding which provisions is made in the Act from being instituted in any court of law except under, and in conformity with, the provisions of the Act. Hence for the purpose of apportionment fund allocation also, the Deputy Commissioner of Hindu Religious and Charitable Endowment Department has to be approached under Section 63(g) of the Act and the other procedure prescribed under the Act has to be followed.
8. The contention that the trust is a religious endowment on the basis of the allegations made in the plaint and the terms contained in the documents relied upon by the plaintiffs, has not been raised in the court below. The question that was argued at length before the court below was that the plaintiffs had no interest in the trust so as to entitle them to maintain the proceeding under Section 92 of the Code of Civil Procedure. This question has been raised before me in this revision petition. Being a pure question of law, which depends only on the terms of the document and the recitals in the plaint and being a question which relates to the jurisdiction of the Court, I permit the petitioner to raise the question in this revision petition for the first time. There is no necessity for any other evidence to be let in for the purpose of deciding the character of the trust, which is referred to in the plaint.
9. Learned Counsel for the plaintiffs contends that this is not a case of religious charity or religious endowment and it is purely a public charitable endowment and it does not fall within the definition set out in Section 6(16) and 6(17) of the Hindu Religious and Charitable Endowments Act. Learned Counsel submits that unless there is an endowment in favour of the temple as such it cannot come within the purview of the definition. The question is not resintegra. It has been settled by the Apex Court of the country as early as in 1965. In The Commissioner, Madras Hindu Religious and Charitable Endowments v. Narayana Ayyangar A.I.R. 7065 S.C. 1916, it has been held that according to the definition of a religious charity, there must be a public charity, which must be associated with a Hindu festival or observance of a religious character and it is not necessary that the charity be connected with a math or temple. On the facts of the case, a trust was created with the aid of contributions, subscriptions and donations. It was a Samaradhanai Fund for feeding Brahmin Pilgrims attending Sri Venkatachalapathiswami shrine at village Gunaseelan on the occasion of Rathotsavam festival. This Court held that it was not a religious charity as defined by the Act as it was not associated with any Hindu festival or observance of a religious character. The text applied by this Court was that there was no manner of check, control or supervision over the feeding charity or Samaradhanai Fund by the trustees of the temple and there was no association between the fund and the Rathotsavam festival as such. It was also pointed out by this Court that cessation or discontinuance of the feeding by the trustees of the feeding charity may constitute a branch of trust on their part but cannot in the least affect the due performance of the Rathotsavam festival itself. It was on that basis this Court held that the feeding of the brahmins on the occasion had no link or connection with the festival, though it was meritorious.
10. Reversing the decision of this Court, the Supreme Court has observed that the expression "being connected with" or "in relation to" do not import any control by the authorities who manage or administer the festival in the temple. It will be advantageous to extract the relevant following observations, of the Supreme Court in that connection.
A Hindu religious festival or observance may have a local significance, in that it is celebrated or observed in a particular locality in connection with a shrine, temple or math, or it may be a festival or observance celebrated generally without any connection, with any temple or math. In the case of such general festivals or observations there is no one who can be so said to control the celebrations, and the definition of "religious charity" includes such general festivals and observances. It cannot be assumed that there must always be a set of persons who control the celebration of a festival or an observance. The test suggested by the High Court that in order that there should be, between the charity and the festival or observance such a relation that the administration of the charity must be controlled by those who celebra to the festival or observance in a temple or math, besides being inapt in the case of general festivals and observances can only be evolved if words which are not found in the definition of "religious charity" are added thereto.
11. It has been held that the association with the religious festival should undoubtedly be real and not imaginary, but to constitute association it is not predicated that the administration of public charity must be controlled by the persons responsible for celebrating the religious festival in a temple or math or be an integral part of the festival or observance.
12. The above ruling of the Supreme Court will apply on all fours to the present case and I have no hesitation to hold that the trust with reference to which the plaintiffs have come forward with the application under Section 92 of the Code of Civil Procedure is a religious endowment or religious charity within the meaning of the Tamil Nadu Hindu Religious and Charitable Endowments Act and Section 92 of the Code of Civil Procedure is not applicable thereto. Hence the application filed by the plaintiffs is not maintainable and deserves to be dismissed. In the view I have taken, it is not necessary for me to decide the other questions argued before me.
13. In the result, the civil revision petition is allowed and the order of the Subordinate Judge dated 21.9.1990 in I.A. No. 1024 of 1988 is set aside and the application is dismissed as not maintainable. The parties will bear their respective costs.