Madras High Court
Kimji Patel vs The Idol Of Sri.Samayapuram ... on 18 February, 2021
A.S.(MD).No.39 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:18.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD).No.39 of 2007
Kimji Patel : Appellant
Vs.
1.The Idol of Sri.Samayapuram Mariamman
S.Kannanoor Mannachanallur Taluk,
Represented by its Executive Officer,
having his Office at Devasthanam Officer,
S.Kannanoor Mannachanallur Taluk, Trichy District.
2.The Idol of Dhandayathapanisamy Palani
represented by its Executive Officer,
Having his office at Devasthanam Office Palani, Dindigul District.
3.The Idol of Sri.Angayee Amman Lalgudi,
represented by its Trustee,
having his Office at Devasthanam Office at Lalgudi.
4.The Idol of Sri.Alangamuneeswarar,
Alanganathapuram, represented by its Trustees,
having his Office at Alanganathapuram Dharanallur,
Tirchy-8 (Ex-parte)
5.M.M.Nagarajan
6.M.Krishnamoorthy
7.Ravichandran
1/22
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8.Lakhsmanan
9.Dr.Manoharan
10.Rajmohan
11.Mohandoss
12.A.Prabhu
13.Sekar
14.Joseph
15.Amaravathi Super Market
Registered under Co-operative Society's Act,
represented by its Secretary
16.Dr.Sooryamoorthy
17.Srinivasan
18.Nagarajan
19.Dharmaraj
20.Dr.V.M.Gnanavel
21.S.Ramachandran
22.Muniappan : Respondents
PRAYER: Appeal is filed under Section 96 of the Code of Civil
Procedure praying to set aside the judgment and decree dated 18.11.2205
in O.S.No.128 of 2004 on the file of the Ist Additional District Judge
(PCR) Tiruchirappalli,.
For Appellant : Mr.K.P.S.Palanivelrajan
For R-1 & R-2 : Mr.R.Devaraj
For R-5 : Mr.S.Ramakrishnan
for K.S.Vamsikhan
For R-6, R12, R13,
R-16 to R-19, R-21 : No Appearance
2/22
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A.S.(MD).No.39 of 2007
For R-7, R-8, R-10
For R-20 & R-22 : Dismissed vide order of this Court, dated
04.09.2017
For R-4, R-9, R-11
R-14 & R-15 : Notice dispensed with (Vide E-B)
JUDGMENT
***********
Aggrieved over the judgment and decree of the trial Court, the
present appeal came to be filed.
2. For the sake of convenience, the parties are referred to
herein, as per their ranking before the Trial Court.
3. The brief facts leading to the filing of this Appeal Suit, is as
follows:-
3.(1). The plaintiffs and the defendants 1 to 3 idols are of Great
antiquity and from the principal saivite shrines in South India honoured
by great Saivite Saints and worshipped not only by ordinary people but
also by many kings. Festivals to those deities viz., the plaintiff and the
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defendants 1 to 3 are taken so seriously by their devotees, that property
came to be dedicated to the plaintiff and the defendants 1 to 3 idols for
the performance of endowments. The suit property was owned by one
Mr.Munia Pillai. The suit property was endowed in favour of the
plaintiff and defendant Nos.1 to 3 Temples for various charities by a
Trust Deed, dated 22.06.1983. The said Munia Pillai used the entire
income from the suit properties for performing Dharmas (Endowments)
like special abishegam and alangaram during the festival days in the
plaintiff and defendants 1 to 3 idols and also to run golden chariot during
the festival days.
3. (2). Similarly the 11th defendant was appointed as a Trustee and
he was appointed only to monitor the other charities. The defendants 4
to 10 were not given any power of alienation or creating encumbrance.
The defendants 4 to 10 have not performed the religious endowments
imposed on them. The defendants 4 to 10 have chosen to alienate the
suit property to the 12th defendant which is void in law and will not bind
on the plaintiff and the defendants 1 to 3 idols. The defendants 13 to 23
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were in possession, as tenants. The 12th defendant has taken proceedings
against the defendants 13 to 23 for eviction and also he is attempting to
demolish the constructions and altering the physical features of the suit
property. Hence, the present suit.
4. The 4th and 11th defendants filed a written statement. In the
written statement, it is stated that the defendants 4 and 11 have no
knowledge about the functions and festivals conducted by the plaintiff
and the defendants 1 to 3. The fourth defendant never took part in the
alleged trust deed executed by the said M.Munia Pillai. The fourth
defendant also did not take part in the alleged sale deed said to have been
executed by the defendants 3 to 10 in favour of the 12th defendant. The
defendant Nos.5, 6, 7 and 9 took a stand that the property originally
belonged to one M.Munia Pillai. There is no trust created in favour of
the plaintiff idol or defendants 1 to 3. There was no dedication of
property for any trust. Hence, the suit is not maintainable. His further
contention is that certain mandagapadies have to be performed from a
portion of the income from the suit property. Only a charge on a portion
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A.S.(MD).No.39 of 2007
of income of the suit property is created. The tenants have not paid the
rent. The defendants have decided to dispose the property so as to
deposit the amounts in a Bank and from the income to do the
mandagapadies to serve the real purpose and satisfy the real intention of
the creator of the deed. The 12th defendant has purchased the property
for a valuable consideration.
5. The 12th defendant has taken a stand that the defendants 5, 6
and 7 have taken a decision from all the trustees and decided to dispose
the suit property so as to deposit the due amount after disposal in a Bank
and with the interest accruing from such deposit to use for the regular
deeds as recited in the family trust and to satisfy the real purpose of the
family trust deed and to serve the real purpose of the family trust and to
satisfy the real intention of the creator of the trust deed. It is only a
family trust and the defendants 13, 14, 17 to 21 and 23 took a stand that
they were inducted as tenants by the then Founder and they were
regularly paying rents for their respective shops to the Founder Trustee
viz., M.Muniya Pillai till his life time. They are ready to pay the rent to
the lawful owner of the property.
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6. Based on the above pleadings, the trial Court has framed the
following issues:-
“1.Whether the plaintiff is entitled to the
possession of the suit property as prayed for?
2.Whether the plaintiff is entitled for
declaration as prayed for?
3.Whether the plaintiff is entitled for
permanent injunction as prayed for?
4.Whether the plaintiff is entitled for profits as
prayed for?
5.To what relief?”
7. The following additional issues were framed on 28.10.2005
by the trial Court.
“1.Whether the property is absolutely
dedicated?
2.Whether a charge alone is created over the
property?
3.Whether the permission under Section 34 of
the Tamil Nadu Hindu Religious and Charitable
Endowments Act is necessary?”
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8. During trial, on the side of the plaintiff, P.W.1 was examined
and Ex.A.1 was marked. On the side of the defendants, D.W.1 to D.W.9
were examined and Ex.B.1 to Ex.B.27 were marked.
9. The trial Court, after discussing elaborately, found that the
property was endowed to the Temples, namely, the plaintiff and the
defendant Nos.1 to 3 idols for Charities and the Trusts have no right to
alienate the properties and the alienation in favour of the 12th defendant
is not valid and decreed the suit. Aggrieved over the same, the present
appeal is filed.
10. The main contention of the learned counsel appearing for
the appellant is that the description of the properties has not been set out
in the plaint. Therefore, the suit is not maintainable and the suit is also
not filed in a representative capacity and it has not been considered by
the trial Court and there is no public charities mentioned in the trust deed
and only a charge alone is created as per the deed. Therefore, there is no
bar for sale of the property.
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11. Whereas, the learned counsel appearing for the respondents
would submit that the entire deed / Ex.A.1 would clearly show that the
properties were endowed in favour of the Temple for various charitable
activities only in the plaintiff / temple and the defendants 1 to 3 idols.
Besides there are total prohibition for the trustees to deal with the
properties or to create any encroachers. Hence, it is the contention that
once the charity benefits the public trusts, the property dealt by the
trustees contrary to the trust deed is not valid to any deed created in
favour of the 12th defendant and it did not convey any title. Hence, he
submitted that it does not require any interference.
12. In the light of the above submissions, now the points arose
for consideration is that:
1.Whether the suit properties are
dedicated for the purpose of charity in favour of the
plaintiff and the defendants 1 to 3?
2.Whether the endowment is in respect of
specific temple or for the performance of religious
charity in various Temples.
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3. Whether any alienation of such
properties conveyed any title to the transferee.
13. The suit has been filed by the plaintiff for recovery of
possession mainly on the ground that the suit properties were dedicated
to the Temple and the defendants 1 to 3 idols for various charities,
particularly, four charities mentioned in the deed viz., Ex..A.1, dated
22.06.1983, whereas, the contention of the contesting defendants,
particularly, the defendant Nos.5 to 12 that there is no complete
dedication and only a charge over the property has been created to carry
out certain services, only to augment income from the properties to such
trusts and the trustees have decided to sell the properties and they sold
the property.
14. On a careful perusal of Ex.A.1 settlement deed, it can be
seen that the the entire suit properties were dedicated to the purpose of
doing various charities not only for the plaintiff but also for Defendants 1
to 3 idols. Further, the recitals also indicates that the settlor has
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completely sought to divest himself of the property. Recitals further
indicates that the settlor has dedicated his entire property for doing
certain charities and dharmas in favour of the Temples and particularly,
for religious purposes to benefit large number of devotees and also
appointed the Trustees/the defendants 4 to 10 to monitor such activities,
namely, the charitable activity.
15. Further restriction in the deed makes it very clear that
neither the trustees nor the legal heirs have any power to deal with the
property by way of alienation or encumbrance etc. In otherwise, there
was a total prohibition on the part of the trustees to deal with the
properties to the third parties except to do the charitable activities as
intended by the settlor.
16. From the reading of the entire documents, this Court has no
other option except to conclude that the intention of the settlor makes it
very clear that he himself divested his right of the property and he
dedicated the entire properties only for the purpose of doing various
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charitable activities and give the benefits to a large number of devotees.
Therefore, the property is dedicated absolutely for a charitable trust. It is
to be construed that the same has to be endowed only to the Temple. The
settlor has not reserved anything from the property and in fact,
endowments was in absolute terms in favour of the Temple. Therefore,
when there was no reservation and when the entire dedication was made
absolutely for charitable purposes, it cannot be said that there is only a
charge created by Ex.A.1 as contended by the so-called purchaser/12th
defendant herein.
17. Such view of the matter, this Court is of the view that the
trial Court decision as to the nature of the charity and it is a complete
endowment, based on the proper appreciation of evidence and
documents. It is also useful to refer the judgment of the Hon'ble Apex
Court reported in 2020-2-L.W.30 in the case of the idol of Sri
Renganathaswamy represented by its Executive Officer, Joint
Commissioner Vs. P.K.Thoppulan Chettiar, Ramanuja Koodam
Anandhana Trust, represented by its Managing Trustees and others
and paragraph Nos.12, 18, 21 and 22 reads as follows:
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12.The term “endow' means to give or
bequeath or bequeath a thing, property or
otherwise. Where the text of the deed purport to
divest the property from the settlor and reserves it
for a charitable purpose, the property has been
endowed. In certain cases, an endowment may not
be absolute towards the charitable purpose and
may reserve some portion of the property or
resultant income income from the property for the
legal heirs of the settlor. The question of whether
the settlor intended the religious purpose to be the
primary beneficiary subject to a charge in favour of
the legal heirs of the settlor, or whether the heirs
were the primary beneficiaries subject to a charge
towards the continuation of the charitable purpose
must be determined by reading the settlement deed
as a whole.
18.For a religious charity to be
'associated' with a Hindu festival, the work of the
charity must be “Connected with” or “in relation
to” the festival. The test is not whether the
particular temple or authority administering the
festival exercises any control over the activities of
the charity. Where there exists a nexus between the
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charitable work and the occurrence of the festival,
the charity is “associated with” the festival. In a
two Judge Bench decision of this Court in
K.S.Soundararajan Vs. Commissioner of Hindu
Religious and Charitable Endowments (2016-2-
L.W.577 = (2016) 15 SCC 597), this Court had to
determine whether offering food to people on the
occasion of a deity passing through a river on a
specific festival was a religious charity. This Court
relied upon the decisions in Mahant Ram Saroop
Dasji and Commr, Madras Hindu Religious and
Charitable Endowments and held that the
abovementioned charity was a religious charity and
it was within the ambit of the High Court to pass
orders regarding the framing of a scheme under
Section 64 of the Act of 1959.
21.The appellant in the present case has
asserted that there existed a specific endowment in
its favour. The deed of settlement reveals that even
though there was no dedication of the suit property
in the name of the appellant, Thoppulan Chettiar
had dedicated the property for the purpose of
carrying out the charity. The charity of offering
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services to devotees of Sri Renganathaswamy who
visited during particular Hindu religious festivals
was of a religious nature. D.W.5, the Assistant
Superintendent of the appellant Temple, admitted
during his cross-examination that the appellant
temple did not exercise control over the respondent
trust and there is no dedication of the suit property
in it favour. In these circumstances, it is evident
that the Deed of Settlement did not create a specific
endowment in favour of the appellant. However, as
we have seen, the activities of the first respondent
trust do satisfy the definition of a “ religious
charity” under the Act of 1959. Therefore, we note
that that the specific endowment created by the
Deed of Settlement is not in favour of the appellant
idol but an endowment to a religious charity.
22.Based on the above observations and
findings, we find that the Deed of Settlement does
create a “Specific endowment” as regulated by the
Act of 1959. The specific endowment created is an
absolute endowment in favour of the “religious
charity” as understood under the Act of 1959.
Section 108 of the Act of 1959 bars the jurisdiction
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of Civil Courts to try matters regulated by the
provisions of the Act of 1959. Section 108 provides
thus:
“Bar of suits in respect of
administration or management of
religious institutions, etc. No suit or
other legal proceeding in respect of of
the administration or management of
a religious institution or any other
manner 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.”
In view of Section 108, no suit or legal
proceedings in respect of the administration or
management of a religious institution or any other
matter for determining or deciding which provision
is made in the Act shall be instituted in a Civil
Court. Any dispute with respect of administration
or management of religious institutions is governed
in accordance with the provisions of the Act of
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A.S.(MD).No.39 of 2007
1959. In the present case, the suit filed by the first
respondent is not maintainable as under Section 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 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.
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Explanation-Any lease of the property
above mentioned through for a term not exceeding
five years shall, if it contains a provision for
renewal for a further term (so as to exceed five
years in the aggregate), whether subject to any
condition or not, be deemed to be a lease for a
period exceeding five years.
(2).When according such sanction, the
Commissioner may impose such conditions and
give such direction, as he may deem necessary
regarding the utilization of the amount raised by
the transaction, the investment thereof and in the
case of a mortgage regarding the discharge of the
same within a reasonable period.
(3).A copy of the order made by the
Commissioner under this Section shall be
communicated to the Government and to the trustee
and shall be published in such manner as may be
prescribed.
(4) The trustee may, within three months
from the date of his receipt of a copy of the order,
and any person having interest may within three
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months from the date of the publication of the order
appeal to the Court to modify the order or set it
aside.
(4-A). The Government may issue such
directions to the Commissioner as in their opinion
are necessary, in respect of any exchange, sale,
mortgage or lease of any immovable property,
belonging to, or given or endowed for the purpose
of, any religious institution and the Commissioner
shall give effect to all such directions.
(5)Nothing contained in this Section shall
apply to the imams referred to in Section 41.)
of the Act of 1959, the Commissioner is
the appropriate authority to approve the proposed
sale of land by the first respondent.”
18. Such view of the above judgments and readings of
Ex.A.1, this Court is of the view that the reasoning by the trial Court is
well balanced and does not require any interference. In respect of the
property dedicated for charitable activities no alienation is permitted in
the trust deed itself. Therefore, the purchase made by the 12th respondent
/ appellant herein cannot be valid in the eye of law.
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19. In fact, the settlor himself has imposed a condition not to
make any charge or alteration in the very deed itself. Besides restraining
or otherwise prohibiting the trustees or creating any third parties rights,
such view of the matter the sale in favour of the 12th defendant, namely,
the appellant herein, is not valid in the eye of law and did not convey any
title over the property as the property is completely dedicated. Therefore,
the plaintiff is entitled to recovery of the suit property. Accordingly the
points are answered.
20. In the result, the judgment and decree of the Courts below
is confirmed and the appeal stands dismissed with costs.
18.02.2021
Index : Yes/No
Internet : Yes/No
tsg
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A.S.(MD).No.39 of 2007
To
1.The Ist Additional District Judge (PCR) Tiruchirappalli,.
2.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD).No.39 of 2007
N.SATHISH KUMAR, J
tsg
Judgment made in
A.S.(MD).No.39 of 2007
Dated:18.02.2021
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