Madras High Court
Arulmigu Soundararaja Perumal ... vs Arulmigu Soundaraja Perumal Thirukoil on 22 December, 2023
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
S.A(MD)No.665 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 15.12.2023
PRONOUNCED ON 22.12.2023
CORAM
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A(MD)No.665 of 2023
and
C.M.P(MD)No.15794 of 2023
Arulmigu Soundararaja Perumal Thadicombu
Chitra Pournami Mandakapadi and its Public
Choultry, Dindigul Taluk, Dindigul, Dindigul District.
(S.V.Balchamy Chettiar Charitable Choultry),
Represented by its present Manager,
S.P.Ramamoorthy ... Appellant/Respondent/1st defendant
vs.
1.Arulmigu Soundaraja Perumal Thirukoil,
Thadicombu, Dindigul Taluk, Dindigul District,
represented by its Executive Officer,
(Through the ultimate beneficiary of Arulmigu
Soundaraja Perumal Thirukoil Chitra Pournami
Mandakapadi and Balsamy, Chettiar Choultry)
... 1st Respondent/ 1st Respondent/ Plaintiff
2.The Sub-Registrar No.2,
Dindigul Taluk Office,
Dindigul Town.
3.The District Registrar,
Scheme Road, Dindigul Town,
Presently having office next to
Superintendent of Police Bungalow,
Round Road, Dindigul.
... Respondents 2 & 3/Respondents 2 & 3/
2 & 3 Defendants
1/34
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S.A(MD)No.665 of 2023
PRAYER:- Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree, dated 29.06.2010 in A.S.No.224 of 2005
on the file of the Additional Sub-Judge, Dindigul, confirming the judgment
and decree, dated 23.06.2005 in O.S.No.769 of 2004 on the file of the
I Additional District Munsif Court, Dindigul.
For Appellant :Mr.A.Sathasivam
For R-1 :Mr.J.Barathan for
Mr.P.Athimoolapandian
JUDGMENT
Challenge is made to the concurrent judgments in A.S.No.224 of
2005 on the file of the Additional Sub-Judge, Dindigul, dated 29.06.2010,
confirming the judgment and decree, dated 23.06.2005 in
O.S.No.769 of 2004 on the file of the I Additional District Munsif Court,
Dindigul.
2. The first respondent/plaintiff filed a suit in O.S.No.769 of
2004 for the relief of permanent injunction that the first respondent
should be restrained from selling and encumbering the suit properties
belong to the plaintiff temple; that the second and third defendants should
be restrained from registering any deed intending to encumber the suit
properties; and for costs.
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3. The case of the plaintiff/first respondent in brief is that the
suit properties belonged to (1)Sa.Ve.Palsamy Chettiar,
(2) Sa.Ve.Krishnasamy Chettiar, (3) Sa.ve.Padmanathan Chettiar (4)
Sa.Ve.Umapathy Chettiar, who are the sons of one Saaranga
Venkatachalam Chettiar. They have executed a settlement deed(trust
deed) on 21st January, 1905, for the purpose of performing the religious
obligations during Chitra Pournami Mandakapadi of the plaintiff temple.
The suit properties were dedicated for the purpose of performing religious
obligations. The object of the trust is to perform the religious obligations
during Chitra Pournami festival at plaintiff temple by using the revenue
from the properties dedicated to the trust. The trust is to be maintained
by the male heirs. They are entitled for temple honours. In their absence,
the female heirs and then, the properties to vest with the plaintiff temple.
There was also supplementary settlement deed on 01.08.1923. In both
the deeds, it is specifically mentioned that the trustees and their heirs are
to perform only the religious obligations from the income of the trust and
they do not have any powers of alienation/encroachment in respect of the
trust properties. In the said circumstances, the first defendant is trying to
sell the suit properties to the third parties. First defendant has no right to
sell or encumber the suit properties. He is also trying to interfere with the
enjoyment of the suit properties by the temple. Thus, the suit is filed.
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4. The first defendant filed a written statement stating that as
per the obligations in the settlement deed(trust deed), the religious
ceremonies are being performed till date. In the absence of male heirs,
female heirs are entitled to perform the religious obligations. Till date,
there are male legal heirs and they are performing the trust obligations.
The allegation that the first defendant is trying to sell the suit property is
not correct. The suit properties are not vested with the temple. Only the
income from the suit properties is to be used for performing religious
obligations. It is decided in W.P.No.19908 of 1999 that there was no proof
that the suit properties belong to the temple. The cause of action pleaded
in the plaint is not correct. Thus, the first defendant prayed for dismissal
of the suit.
5. On the basis of the pleadings, the following issues were
framed for trial:
“(i)Whether the plaintiff is entitled for the relief of
permanent injunction prayed for, against the first
defendant?;
(ii)Whether the plaintiff is entitled for the relief of
permanent injunction prayed for against defendants 2 and
3?; and
(iii)To what relief the plaintiff is entitled for?”
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6. During the trial before the trial Court, on the side of the
plaintiff, P.W.1 was examined and Ex.A1 to A4 were marked. On the side
of the defendants, D.W.1 was examined and no document was marked.
7. On the basis of oral and documentary evidence, the learned
trial Judge found that as per Exs.A1 & A2 documents, the trustees or
their legal heirs, have no right to sell or encumber the suit properties.
In this view of the matter, the learned trial Judge decreed the suit as
prayed for.
8. In appeal filed by the first defendant/appellant, the learned
First Appellate Judge concurred with the judgment of the trial Court and
dismissed the appeal. Thus, this second appeal is filed by the first
defendant/appellant.
9. In this appeal, the appellant raised the following substantial
questions of law and additional substantial questions of law:
Substantial questions of law:
“(1) Whether a beneficiary of income arising from
properties ordained for religious purpose, is entitled to maintain
a suit for permanent injunction against alienation of the same
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by the Manager/Trustees, when its right is only that of a
“charge holder” and when the plaintiff has only a contingent
right of management that may or may not accrue at a future
date?
(2) Is the plaintiff temple entitled for a decree of
permanent injunction against alienation, despite its own
admission that the 1st defendant is performing and supporting
all the religious and charitable activities as ordained in the
basic documents creating benefit in favour of the temple,
without fail?
(3) Whether the Courts below are right and justified in
decreeing the suit when there is no cause of action for the
plaintiff temple and the plaintiff temple has no clear right to
sue?
(4) Whether the Courts below are correct and justified
in granting a decree for injunction against defendants 2 and 3
who are independent authorities under the Registration Act,
1908 with quasi-judicial powers, as the same is barred under
Section 41(h) of the the Specific Relief Act, when the charge
holder can enforce the charge?”
Additional substantial questions of law:
(1) Is not the Court below wrong in decreeing the
suit when the executive officer of the plaintiff temple is not
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autorized by letter of appointment to institute the suit
proceedings and in the light of the ratio laid down by this
Court reported in 2003(1) LW 86?
(2) Whether the Court below has jurisdiction to
entertain the suit with regard to the administration of the
trust when the said subject matter exclusively falls under
the purview and ambit of Section 92 of the Civil Procedure
Code and only the District Court have got jurisdiction to
decide any such dispute?
(3) Is not the Court in granting the relief prayed
for in the suit which falls within the jurisdiction of the
District Court under Section 92 of the Civil Procedure
Code?
10. The learned counsel for the appellant submitted that the
right of management of trust properties would come to the hands of the
plaintiff temple only if there are no legal heirs in the family of the settlors.
When there are legal heirs, there is no vested or immediate right available
to the plaintiff, to file the suit. There is no permanent or absolute
dedication of the suit properties by the settlors in favour of the plaintiff
temple. Only some “kattalais” are to be performed and offerings to be
made, out of the income of the suit properties. The Courts below have
come to the conclusion on the misconception that the suit properties
belonged to the plaintiff temple.
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11. The learned counsel for the appellant further submitted that
there is no case made out either with regard to the non-performance of
obligations by the trustees of the first defendant or there is any case of
mismanagement of trust properties reported. The Courts below have
failed to consider that the trust properties can be sold in case of legal
necessity and when it is non-remuneratory. There cannot be a permanent
injunction restraining the alienation of the properties, more so when the
plaintiff has no title or vested right over the trust properties.
12. Further, there is no positive evidence on the side of the
plaintiff to show that the suit properties are the properties of the plaintiff
temple or under the control of HR & CE Department. No declaratory relief
is sought for in respect of the title. The settlement deed(trust deed) shows
that it is only a private trust. The Executive Officer has no right to file the
suit. There is no agricultural operation being carried out in the suit
properties and there are encroachers. If the property is sold and invested
or certain revenue earning properties are purchased, it would help the
management of the trust and trust properties. In the absence of the
sufficient income, the trustees have to use their personal funds to meet
out the trust obligations. Plaintiff has failed to prove that there are no
legal heirs to carry on the trust obligations. Without considering all these
aspects, the Courts below have wrongly decreed the suit.
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13. The learned counsel for the appellant relied on the judgment
of this Court in the case of Sri Arthanareeswarar v. T.M.Muthusamy
Padayachi, decided on 15th August, 2002, for the proposition that the
Executive Officer is not the competent authority to initiate the legal
proceedings, wherein it is held as follows:
“21...... From the above it is clear that the
Executive Officer is not the authority competent to initiate
legal proceedings and that he had not been assigned
with the power of filing a suit. It is only the Board of
Trustees in existence at that time which was competent
to initiate the legal proceedings. The trustees are not
made parties to the suit and therefore, the finding
insofar as the Executive Officer's suit is concerned, that
it is filed without authority has to be upheld.”
Thus, he submitted and prayed that the judgment of the Courts below are
to be set aside and the suit is to be dismissed.
14. In reply to the submissions, the learned counsel for the first
respondent/plaintiff submitted that the suit is filed for the limited prayer
for permanent injunction restraining the first defendant from alienating or
encumbering the suit properties and restraining the second and third
defendants not to register any alienation or the encumbrance made by the
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first defendant. The plaintiff reliably learnt that the first defendant has
taken hectic efforts to sell the suit properties. The plaintiff and the public
in general are the beneficiaries under the settlement deed(trust deed).
If the suit properties are permitted to be sold or alienated, the object of the
trust would be rendered nugatory. The recitals made in the settlement
deed made it clear that the object of the trust is for public purpose. That
is to benefit the public at large during the performance of trust
obligations.
15. The learned counsel for the first respondent further
submitted that it is seen from the evidence of P.W.1 that some portion of
the trust properties were already sold. The Rules framed under the Indian
Trusts Acts, 1882, permits initiation of the suit and defence of the suit by
the Executive Officer to safeguard the trust property. Not only that,
the plaintiff filed the suit in its capacity as beneficiary as well. Any
beneficiary under the trust can maintain the suit. When the cause-title
of the plaint shows that the suit is filed by the Executive Officer as a
beneficiary, the first defendant should have specifically denied that the
plaintiff is not a beneficiary. There is no specific denial in the plaint.
There is no such ground taken in the appeal and in the second appeal.
Therefore, it is not open to the appellant now to contend that the plaintiff
cannot maintain the suit.
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16. He produced the judgment of the Hon'ble Supreme Court in
Idol of Sri Renganathaswamy represented by its Executive Officer,
Joint Commissioner reported in (2020) 17 SCC 96, to bring it to the
notice of this Court the distinction between the public trust and the
private trust.
17. He relied on the judgment in A.A.Gopalakrishnan v.
Cochin Devaswom Board and Others reported in (2007) 7 Supreme
Court Cases 482, for the proposition that it is the duty of the Courts to
protect and safeguard the properties of religious and charitable trust from
wrongful claim and misappropriation.
18. The judgment of this Court in Durgai Lakshmi Kalyana
Mandapam, a Specific Endowment to Arulmigu Siddhi Ganesar
Nataraj Perumal Durgaiamman Group Temples, represented by
K.Jeevanandham & another vs. Idols of Arulmigu Siddhi Ganesar
Nataraja Perumal Durgaiamman Group Temples, Rep. by its
Executive Officer & Others reported in 2023-3-LW. 801, is pressed into
service wherein it is observed that in A.N.Kumar vs. Arulmighu
Arunachaleswarar Devasthanam, Thiruvannamalai, rep. by its
Executive Officer (Asst. Commissioner), Thiruvannamalai and Others
reported in (2011-2-L.W.1), this Court held that it is the duty of the
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Executive Officer to file the suit to protect the property of the temple. The
aforesaid judgment is relied by the learned Single Judge of this Court in
the judgment reported in 2023-3-LW. 801. Therefore, the learned
counsel for the first respondent prayed for confirming the judgment of the
Courts below and for dismissal of this appeal.
19. In reply to the submissions, the learned counsel for the
appellant submitted that the HR & CE Rules permit the Executive Officer
to file a suit after obtaining permissions from the competent authority.
No such permission was granted to the first respondent/plaintiff.
Therefore, the suit filed by the first respondent/plaintiff is not
maintainable. Question of law can be taken even without pleadings. If
the trust is a public trust as claimed by the first respondent, then Section
92 of C.P.C., will come into play. As per Section 92 of C.P.C., the suit
should have been filed only by the Advocate General or two or more
persons who are having interest in the trust and having obtained leave of
the Court and not otherwise.
20. In response to this submissions, the learned counsel for the
first respondent submitted that scope of Section 92 of C.P.C., is different
from the nature of the suit filed. The suit is filed only to prevent, the first
defendant by prohibitory injunction, from alienating or encumbering the
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suit properties. Therefore, the suit is not barred.
21. I have considered the rival submissions and perused the
records.
22. From the pleadings, evidence, submissions and judgments
of the Courts below, it is not in dispute that the suit properties originally
belonged to (1)Sa.Ve.Palsamy Chettiar, (2) Sa.Ve.Krishnasamy Chettiar,
(3) Sa.ve.Padmanathan Chettiar (4) Sa.Ve.Umapathy Chettiar, and they
executed Ex.A1 and Ex.A2 settlement deeds(trust deeds). To understand
the nature of the trust, it is useful to extract certain portions of these
documents . It is recited in Ex.A1 as follows:
1905 tU\k; $dthp khjk; 21k; njjp 1905 tU\k; $dthp khjk; 25k;
jpz;Lf;fy; lt[z; FHe;ijntyd; njjp khiy 2 kzpf;F jpz;Lf;fy;
bjUtpypUf;Fk; rhuq;f btq;fplhryk; rg;hp$p];jhuhgprpy; jhf;fy; bra;jJ
brl;oahh; Fkhuh;fs; brush\;ou $hjp rh.bt.fpU\;z rhkp vGjpf; bfhLj;jjhf
tpahghh tptrha $Ptdk; rh.bt.ghy;rhkp xg;gf[ ; bfhz;lJ. rh.ghy;rhkp rhuq;f
brl;oahh; 1. rh.bt.fpU\;z rhkp btq;flhryk; brl;oahh; Fkhuh;
brl;oahh; 2.rh.bt.gj;kehgd; brl;oahh; brush\;ou tptrhak; E}y; tpahghuk;
3.rh.bt.ckhgjp brl;oahh; 4. ngh;fSk; jpz;Lf;fy; FHe;ij ntyd; re;J
vGjpf; bfhz;l brl;oy;bkz;l; gj;jpuk; rh.bt.fpU\;zrhkp i\ i\ i\
ehk; Rahh;$pjkha; fpuaq;fs; thq;fpaJk; rh.bt.gj;kehgd; i\ i\ i\
jh;krj;jpuk; tifawh fl;oa[k; fpzWfs; rh.bt.ckhgjp i\ i\
btl;oa[k; njhg;g[ ee;jtdq;fs; i\ ,th;fis rg;hp$p];jhuh; nehpy;
itj;Jk; ,d;Dk; kw;w tpjkha[k; mhpthh; 1905 tU\k; $dthp 25 c
mDgtpj;J tUfpw ghy jpUg;gjp vd;W gp v]; uhkuht; rg;hp$p];lhh; 1tJ
bgah; tHq;fpa ,lj;jpYs;s moapy; g[]jfk; 229 tJ thy;a[k; 482 Kjy;
fz;l vy;yh brhj;Jf;fspYk; 3 yf;f 486 tiu gf;fq;fspy; 251 tJ
rj;jpuj;jpy; ehk; tHf;fkha; elj;jp tUfpw ek;guhf hp$p];jjh; bra;ag;gl;lJ 405
jhof; bfhk;g[ _kj; brse;juh$g; tU\k; $dthp; khjk; 26k; njjp
bgUkhs; rpj;jpu brYj;jpa fl;lzk; U:.9.00 gp v];
uhkuh$ rg;hp$p];lhh;; Kj;jpiu.
bgsh;zkp cw;rt kz;lfg;go tifawh jh;kq;fisa[k; i\ jh;k
ghpghydj;Jf;fhf Vw;gl;oUr;fpw 1, 2 yf;f brhj;Jf;fs; tifawhita[k;
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ek;Kila tk;]ghuk;ghpakha[k; rh];tjhkha[k; ahbjhU Fiwtd;dpapYk;
elj;jpu tu ntz;oa tp\aq;fSf;fhd Vw;ghLfs; bra;J itf;f ntz;oaJ
mtrpahapUf;fpwgoahy; ehk; vy;nyhUk; Vnfhgpj;J kdg;g{h;tkha; moapy;
fz;l epgj;jidfs; Vw;gLj;jpapUf;fpnwhk;.
....
i\ kz;lfg;go elj;j ntz;oaJ Kjypa jh;kj;Jf;fhft[k; i\
rj;jpuk; khukj;J bryt[fSf;fhft[k; moapy; fz;l 1,2,3 yf;f
brhj;Jf;fis ehk; ,jw;F Ke;jpna tpl;L itj;jpUf;fpwgoahy; ,g;nghJ
ek;kpy; n$\;luhfpa i\ rh.bt.ghy;rhkp brl;oahh;th;fs; i\
brhj;Jf;fspKilat[k; khnd$pbkz;l; tfpj;J ghh;j;J tu ntz;oaJ
mtUf;F gpe;J ek; ehY Flk;gq;fspYk; me;je;j fhyj;jpy; taJf;F
K:g;ghapUf;fpwth; xUtUf;F gpd; xUtuhf i\ nknd$;bkz;l; xg;gf[ ;
bfhz;L elj;jp tu ntz;oaJ.
...
i\ kz;lfg;go jh;kk; rj;jpuk; khukj;J Kjypa bryt[fSf;F
nghjhkypUe;jhy; mjpfk; ntz;oa bjhifia ek;Kila ehY FLk;gj;jhh;fs;
me;je;j fhyj;jpy; ,Uf;fpwgo rkghfkhf mtuth; <t[g;gpufhuk; mg;nghija
khnd$hplk; brYj;jp urPJ bgw;Wf; bfhs;sntz;oaJ.
...
i\ jh;k brhj;Jf;fspd; tUk;goapypUe;J i\ bryt[ nghf
kPjk; Vw;gl;lhy; mjw;F jf;fgo i\ khnd$h; khj;jpuKs;s ViHfSf;F
$hjp tpj;jpahrkddpapy; md;djhdk; bra;J tuntz;oaJ khnd$h; i\ 1
2 yf;f brhj;Jf;fspDilat[k; gpe;jp Vw;gLfpw brhj;Jf;fspYilat[k;
tUk;gof;Fk; i\ kz;lfg;go jh;kk; khukj;J tifawh rfy bryt[fSf;Fk;
rhpahd fzf;F itj;j xt;bthU tU\Kk; rpj;uh bgsh;zkp cw;rt Koe;j
xU thuj;Jf;Fs; ek;Kila FLk;q;fs; xt;bthd;wpYk; mg;nghJ jiyik
ahapUg;gthplk; fhz;gptpj;J tpguk; brhy;yp xg;g[tpj;J mth;fspy; bk$hhpl;o
bjhif ahUila ifbaGj;Jfs; thq;fp itf;f ntz;oaJ kj;jpa fhyq;fspy;
nky; fz;l bk$hhpl;o ahh; fzf;if fhz;gpf;Fk; go nfl;lhy; khnd$h;
mij K:d;W ehisf;Fs; bfhLf;f ntz;oaJ i\ cw;rt ehs;fs; jtpu
kw;w fhyq;fspy; i\ rj;jpuj;jpy; ,lk; ,Uf;fpwtiuapy; xU thuj;jpw;F
nkw;glhky; gpuahzpfs; mg;nghijf;fg;nghJ jq;fpapUf;f khnd
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$h; ,lq;bfhLf;f ntz;oaJ.
.....
,jpy; fz;l vy;yh brhj;Jf;fspYk; 1,2 yf;f brhj;Jf;fspd;
tUk;goapYk; i\ jh;krk;ke;jkha; ,jp nky; Vw;gLfpw brhj;Jf;fspYk;
mitfspd; tUk;gofspYk; ekf;Fk; ek;Kila thhpRfSf;Fk; i\ jh;k
rk;ke;jkhd ghj;jpaj;ij jtpu ntnw vt;tpjkhd brhe;j tp\aq;fSf;Fk;
ahbjhU ghj;jpaKk; ,y;iy. nkny brhy;yg;gl;oUf;fpw tp\aq;fs; vy;yhk;
ek; FLk;gq;fpy; vjpyhtJ Mz; thhpR ,Uf;fpw tiuapy; mth;fSf;nf
khj;jpuKk; mth;fSf;F gpe;jp bgz; thhpRfSf;Fk; mth;fSf;F gpd;g[ i\
jhof; bfhk;g[ _kj; brse;juh$; bgUkhs; njt];jhdj;Jf;Fk; ,jd;
epge;jidfSf;Fl;gl;L ghj;jpag;gl ntz;oaJ i\ vy;yh
brhj;Jf;fspYk; ,dpnky; ,J tp\akha; Vw;glfpw brhj;Jf;fspYk; ,jd;
K:ykha; mtuth;fSf;F Vw;gl;oUf;fpw khnd$;bkz;l; ghptl;lk; tifawh
khpahijfis Kjypa ,d;Dk; kw;w ghj;jpaq;fspYk; vija[k; ahUk;
ve;jf;fhuzj;ij apl;Lk; vt;tpj guhjPdKk; khWjYk; bra;af;TlhJ.
23. Ex.A2 reads as follows:
“nky; fz;l njjpapy; ehbky;nyhUk; bra;J itj;j nkw;go
j];jhntrpy; fz;l \uj;Jf;fspd;gona ehKk; ,J fhhpa eph;ge;jk;
ahbjhU (o) Fiwtd;dpapy; nkw;go j];jhntRf;F gpd; if kd;dpapUk;
nkw;go jh;krj;jpuk; mgptpUj;jpahfp tUtjpy; nkw;go j];jhntRfs;
tpnuhjkd;dpapy; fz;Ls;s Xh; epge;jidia ehq;fs; mDrhpj;Jk; ,dpa[k;
nkd;nkYk; $h];jp mgptpUj;jp bra;tpf;f ntz;oa tHpghl;Lf;fhfnt
nky;fz;l njjpapy; gpwe;j brl;oy;bkz;L j];jhntRf;F
tpnuhjkd;dpapy; ,jdoapy; fz;Ls;s epge;jidf;Fs;gl;Lk; nkw;go jh;k
rj;jpuj;Jlndna vq;fshy; Rahh;$pjkha; rk;ghjpf;fg;gl;lJ. moapy; fz;l
brhj;Jf;fisa[k; mjd; tUk;gofisa[k; kJiu kpy;]; fk;bgdp ypkpbll;
kpy;ypy; vq;fs; n\h; Kjy; Jif U:.94000.00 k; nkw;go j];jhntrpy;
fz;l jh;k rj;jpuk; kz;lfg;go tifauht[f;nf ,jd; K:ykha;
ghj;jpag;gLj;jpapUf;fpnwhk;. 3.nky; fz;l brl;oy;bkz;L rhrdj;jpy;
fz;Ls;s brhj;Jf;fspy; jdf;fhft[k; ikdUf;fhft[k; rh. ghy;rhkp
rh.fpU\;zrhkp rh.bt.gj;kehgd; 2. tUk;gofspy; ,Ue;J jh;kj;ij elj;jp
tUtJ nghynt fPH;fz;l brhj;Jf;fspy; tUk;gofspypUe;Jk; (2) tJ
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ghuhtpy; brhy;ypapUf;fpw kJiu kpy;]; fk;bgdp ypkpbll; kpy; n\h; Kjy;
jdJ tUk;gofisf; bfhz;Lk; nky; fz;l brl;oy;bkz;L rhrdj;jpy;
fz;lgo tU\htU\k; elj;jp tu ntz;oa jhof;bfhk;g[ brse;jpuuh$g;
bgUkhs; rpj;jpuhbgsh;zkp cw;rt kz;lfg;go rpyt[f;Fk; nkw;go
jh;krj;jpuj;jpYk; moapy; fz;l brhj;Jf;fspYk; Vw;glf; Toa khukj;J
rpyt[fSf;Fk; E}jdf; fl;olr; bryt[fSk; nkw;go rj;jpuj;jpy; mz;lfk; 9
ngUf;F Fiwahky; md;djhdk; bra;J tu ntz;oaJf;Fk; Vw;gl;l
rpyt[fs; nghf ghf;fpa[s;s Jifia rj;jpuj;Jg; gz;Lld; nrh;jJ ;
mgptpUj;jp bra;a ntz;oa (4) nkny fz;l brl;oy;bkz;od;go
ve;bje;j fhyj;jpy; ahh; ahh; khnd$uhfapUe;J nkw;go jh;k rk;ke;jkhd
khnd$;bkz;ilg; ghh;jJ ; tUfpwhh;fnsh mth;fs; nky;fz;l fhhpahjpfis
nky; ghh;j;J tUtjw;fhf ntz;o tz;o, rj;jk; ,d;Dk; kw;w rpy;yiur;
rpyt[fSf;fhft[k; khjk; 1f;F U:.25.00 ,Ugj;ije;J tPjk; nkw;go (5)
jh;kr;rj;jpuk; tUk;goapypUe;J vLj;Jf; bfhs;s ntz;oaJ. 5 vq;fSf;F
Rahh;$pjkha; ghj;jpag;gl;l fPH; fz;l brhj;Jf;fisa[k; 2tJ ghuhtpy;
brhy;yg;gl;oUf;fpw kJiukpy; Kjy; Jifa[k; nrh;j;J nkw;go
jh;krj;jpuj;Jf;nf nrh;g;gpj;j tifapy; vq;fs; FLk;gj;Jf;Fg; bghJthf nru
ntz;oa U:.5000/- Iahapuk; kl;Lk; nky; fz;l brhj;Jf;fspd;
tUk;goapy; ,Ue;J ehq;fs; vLj;J FLk;;g brhj;Jf;fSld; nrh;jJ ; f;
bfhs;tijj; jtpu nkw;go brhj;Jf;fis ahtJk; nkw;go brhj;Jf;fspd;
tUk;gofisahtJk; ekf;Fk; ek;Kila thhpRfSf;Fk; nkw;go jh;k
rk;ke;jkd fhhpahjpfs; bra;J tu ntz;oaij jtpu vt;tpjkhd brhe;j
cgnahfq;fs; bra;J bfhs;tjw;F ghj;jpakpy;iy. 6 nky; fz;l kJiu
kpy; n\h; Kjy; Jif U:94000 k; nkw;go jh;kj;Jf;nf tplg;gl;oUe;j
nghjpYk; To nkw;go kpy; rk;ge;jkha; ,d;Dk; $h];jp tUk;go
fpilf;Fbkd;W njhd;Wk; fhyj;jpy; nkw;go kpy;ypd; gq;F jdf;fhft[k;
ikdUf;fhft[k; rh.ghy;rhkp rh.t.fpU\;zrhkp rh.bt.gj;kehgd; 3 fis
Flk;gj;jpYs;s bk$hhpl;ojhh;fspd; mgpg;gpuhag;go gq;Ffis tpw;W me;j
Jiffisf; bfhz;L clnd ];jhth brhj;Jf;fs; fpiuaj;Jf;F thq;fp
nkw;go rj;jpuj;Jf;nf khnd$pq; tpl;L tpl ntz;oaJ 7 nky;
fz;lgoaha[s;s rfy fhhpahjpfisa[k; ehq;fSk; vq;fs; thhpRfSk;
mg;ghy; tUk; guk;giuaha; Vw;gl;Ls;s thhpRfSs;stiu mth;fSf;Fk;
mth;fSf;Fg; gpd; bgz; thhpRfSf;Fk; nky; fz;l epge;jidf;Fs;gl;L
elj;jpa[k; mg;ghy; vq;fs; tk;rj;Jf;Fg; gpwF jhof;bfhk;g[ _kj
brse;jpuuh$g; bgUkhs; njt];jhdj;Jf;F ,jd; epge;jisf;Fs;gl;L
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ghj;jpag;gl;l ntz;oajijj; jtpu kw;wgo ehq;fshtJ vq;fs;
thhpRfshtJ nkw;go brhj;Jf;fisa[k; mjd; tUk;gofisa[k; mila
ntZbkd;w vt;tif Vw;ghLfs; bra;j nghjpYk; mitfSf;Fk; ,jDl;fs;
nkw;go brhj;Jf;fisa[k; mjd; tUk;gofisa[k; mila ntz;Lbkd;W
vt;tif Vw;ghLfs; bra;j nghjpYk; mitfSk; ve;jf; fhuzj;ij
Kd;dpl;Lk; vt;tpj ghujPdKk; j];jhntRf;F khWjy;fshft[k;
bra;tjhdhYk; mitfSk; Kw;wpYk; ekJ ,e;Jyhapy; brhy;ypago
bry;yj;jf;fJkpy;iy vd;W vq;fs; rk;kjpapy; vGjp itj;j rg;spbkz;ly;
brl;oy;bkzL Ol;.”
24. Reading of Ex.A1 shows that the properties under the deed
were dedicated for the purpose of religious ceremonies during Chitra
Pournami of Arulmigu Soundararaja Perumal Temple, Thadicombu. Apart
from religious ceremonies, there are obligations to give “Annadhanam” to
the poor public and for the stay of devotees. There is a recital that the
trustees and their legal heirs can take part in the religious ceremonies,
they are entitled to temple honours with adorning of “parivattam”. There
is a specific recital that trustees or the legal heirs should not alienate or
encumber the properties.
25. Similar recitals are made in Ex.A2 as well. The trustees are
given permission for purchasing other properties in favour of the trust by
selling shares and not otherwise. At best, they can take Rs.5,000/- from
the properties dedicated. It is reiterated that the trustees or the legal heirs
are not entitled to encumber the properties and if they do so, it will not
bind the trust.
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26. In the judgment reported in (2020) 17 Supreme Court
Cases 96(cited supra), it is held as follows:
“18. The distinction between a public and private
charity was set out by a Constitution Bench decision of this
Court in Ram Saroop Dasji v S.P Sahi. In that case, the
Court had to determine whether the Bihar Hindu Religious
Trusts Act (1 of 1951) applied to both public as well as
private trusts. It described the difference between public
and private charities as follows:
“6. ... it is necessary to state first the
distinction in Hindu law between religious
endowments which are public and those
which are private. To put it briefly, the
essential distinction is that in a public trust
the beneficial interest is vested in an uncertain
and fluctuating body of persons, either the
public at large or some considerable portion of
it answering a particular description; in a
private trust the beneficiaries are definite and
ascertained individuals or who within a
definite time can be definitely ascertained.
The fact that the uncertain and fluctuating
body of persons is a section of the public
following a particular religious faith or is only
a sect of persons of a certain religious
persuasion would not make any difference in
the matter and would not make the trust a
private trust....”
27. The properties are dedicated for certain religious obligations
during Chitra Pournami at Arulmigu Soundararaja Perumal temple,
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Thadicombu, with a direction to offer free food (Annadhanam) to the poor
public and for the stay of devotees. There is no doubt that the properties
are dedicated for the benefit of public also. What is important here is that
there is repeated reiteration in both Ex.A1 and A2 that the trustees or the
legal heirs have no right to alienate/encumber the suit properties. If they
do so, it will not bind the trust.
28. In this regard, it is pertinent to refer to the evidence of
D.W.1. D.W.1 during the course of cross-examination admitted that he is
a trustee from 1993. There are three trustees. The trust has 21 acres of
land. They used to conduct the Mandakapadi during Chitra Pournami
festival at Arulmigu Soundararaja Perumal temple, Thadicombu. He
candidly admitted that out of 21 acres of land, 1 acre 60 cents were sold
in 1997. It is his further evidence that this 1 acre 60 cents were plotted
out and sold for the benefit of the trust. Before effecting sale, no
permission was obtained from the Court.
29. Thus, from the evidence of D.W.1, it is evident that without
obtaining any permission from the Court, the first defendant and other
trustees have sold 1 acre 60 cents of lands of the trust property. It is seen
from Exs.A1 and A2 that the object of the trust is to perform certain
religious obligations when deity comes during Chitra Pournami festival.
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There must be offering of food during the religious ceremonies. If there
are no male or female heirs, the properties are to be vested with the
plaintiff temple. The ultimate beneficiary of the trust and trust properties
are the deity, temple and general public. Trustees are entitled only for
temple honours. Therefore, this Court is of the view that the judgment
relied by the learned counsel for the appellant in Sri Arthanareeswarar
of v. T.M.Muthusamy Padayachi decided on 05th August, 2002, is not
applicable to the facts and circumstances of the case. The reason is that a
subsequent judgment of the Division Bench in 2011-2-L.W.1(referred to
supra), it was clearly held that the Executive officer, being an Officer
appointed by a competent authority, is duty bound to protect the property
of the temple. Therefore, it is incumbent on him to file a suit and protect
the right of the temple.
30. It is pertinent to refer to paragraphs 11, 15 to 18 of the
judgment in Durgai Lakhsmi Kalyana Mandapam, represented by
K.Jeevanandam & another vs. Idols of Aruligu Siddhi Ganesar
Nataraja Perumal Durgaiamman Group Temples, Rep. by its
Executive Officer & Others reported in 2023-3-L.W.801, as follows:
“11. This apart, he would submit that the
Government of Tamil Nadu had subsequently framed rules
namely, The Conditions for Appointment of Executive Officers
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Rules, 2015, in and by which, the Executive Officer has been
expressly authorised to represent and also file suits for and on
behalf of the temple. The constitutional validity of the said
rules came to be challenged in M/s.Temple Worshippers
Society Rep. by its President T.R.Ramesh Vs.
Government of Tamil Nadu3 and the Division Bench upheld
the validity of the said rules. In view thereof, it cannot be
contended that the suit by the Executive Officer was not
maintainable. The learned Counsel also relied upon a judgment
of a learned Single Judge of this Court in Mohammed Rafiq
and Ors. Vs. Arulmigu Pasupatheeswarar Swamy Koil
Avoor4, whereunder, the suit filed by the Executive Officer
was held to be maintainable on the ground that any person
interested (which includes a devotee) can set the law in motion
as per the scheme of the Act.
.....
15. It is in this context, by considering Sections 6 &
45 of The Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959, when the powers and duties are to be
defined by the Commissioner at the time of appointment of the
Executive Officer, it is held that unless the Commissioner
expressly authorises the filing of the suit by the Executive
Officer, the suit is not maintainable.
16. It is in this context, the march of law has to be
understood when the later Division Bench of this Court, in the
year 2011, in A.N.Kumar Vs. Arulmighu
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Arunachaleswarar Devasthanam Thiruvannamali, rep.
by its Executive Officer (Asst. Commissioner)
Thiruvannamalai and Ors. (cited supra) while resolving the
question as to whether the temple has to resort to eviction
proceedings under Sections 78 and 79 of The Tamil Nadu
Hindu Religious and Charitable Endowments Act, 1959 or
whether it can file the suit, while deciding that the temple can
resort to either of the proceedings, also held that it is the duty
of the Executive Officer to file a suit. It is useful to extract
paragraph No.32 of the said judgment which reads as follows:-
"32........................ The Executive
officer,being an Officer appointed by a competent
authority, is duty bound to protect the property of
the temple. Therefore, it is incumbent on him to
file a suit and protect the right of the temple."
17. This paradigm shift from 'power' to 'duty' has to
be noted. Always the march of law has to be seen with
reference to the social transformation and in tune with societal
concerns. It could be seen that there were times when people
were donating their properties to Temples. Temple properties
were not earning great income and quite often Trustees in their
discretion permitted persons to occupy or cultivate the same.
Many a times if they default to pay the meagre rent, still action
was not taken considering their economic background or their
services to the temple. Generally people had a sentiment/fear
not to exploit the temple property. However, with the population
growth and urbanisation, this sentiment has vanished in thin
air and the properties of the temple, be it residential plots or
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commercial buildings or agricultural lands are encroached
upon without any guilt and the temple is divested of the
income. Thus, the 'power' to file a suit has transformed into a
'duty' to file a suit. When the law has been laid down that it is
the duty of the Executive Officer to protect the property and it is
incumbent upon him to file the suit, then Section 45 can no
more be read as requiring an express authorisation to file a suit
as the very appointment enjoins the said duty.
18. The second reason is that under Section 6 (15) of
The Tamil Nadu Hindu Religious and Charitable Endowments
Act, 1959, where under, a person having interest is defined, in
which, a devotee/worshiper will also be having interest and
the suit filed by them in case of mismanagement is
maintainable. Even in the judgment of a Division Bench of this
Court in Sri Arthanaeeswarar (cited supra), it is held that a
suit filed by a devotee in case of mismanagement would be
maintainable. It is in this context, a learned Single Judge of
this Court in Mohammed Rafiq and Ors. vs. Arulmigu
Pasupatheeswarar Swamy Koil Avoor (cited supra) held
that when a devotee can set the law in motion, Executive
Officer certainly will be entitled to do so. It is useful to extract
paragraph No.15 of the said judgment which reads as follows:-
"15. There can be no doubt over the
ownership of the suit property and the plaintiff is
entitled to recover the possession from the
trespasser. In the absence of proof that the
temple land was taken away and assigned to
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third parties after paying due compensation to
the temple. The Division Bench judgment of this
Court, where the defendants have questioned the
locus of the Executive Officer, who has laid the
suit at the inception does not akin to the facts of
the case in hand. Any person, who are interested
in the temple, is entitled to initiate law into
motion. Further, the Court itself as parens patriae
is bound to protect the interest of idol. In this
case, when no plea was taken regarding locus of
the Executive Officer for filing suit for mandatory
injunction and no opportunity given to Executive
Officer to show that he, on authorisation from the
Commissioner initiate the legal proceedings, it is
to be presumed that he had been authorised by
the Commissioner to initiate proceedings. "
This Court is the parens patriae and is therefore has
to protect the properties of the temple. Useful reference in this
regard can be made to a judgment of the Hon'ble Supreme
Court of India in Joint Commissioner, HR&CE, Admn.
Deptt. Vs. Jayaraman. The Court being the parens patriae in
respect of the Temple and its properties, the Executive Officer
only sets the law in motion by filing the suit. Therefore, for all
the reasons stated above, the suit filed by the Executive Officer
is maintainable and accordingly, I answer this question.
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31. In Paragraph No.10 of the judgment of the Hon'ble Supreme
Court reported in (2007) 7 SCC 482( referred to supra), it is observed as
follows:
“10. The properties of deities, temples and
Devaswom Boards, require to be protected and
safeguarded by their Trustees/Archaks/
Sebaits/employees. Instances are many where persons
entrusted with the duty of managing and safeguarding the
properties of temples, deities and Devaswom Boards have
usurped and misappropriated such properties by setting
up false claims of ownership or tenancy, or adverse
possession. This is possible only with the passive or active
collusion of the concerned authorities. Such acts of 'fences
eating the crops' should be dealt with sternly. The
Government, members or trustees of Boards/Trusts, and
devotees should be vigilant to prevent any such usurpation
or encroachment. It is also the duty of courts to protect and
safeguard the properties of religious and charitable
institutions from wrongful claims or misappropriation.”
32. It is stated in this judgment that the Government, members
or trustees of Boards/Trusts, and devotees should be vigilant to prevent
any such usurpation or encroachment. It is also the duty of courts to
protect and safeguard the properties of religious and charitable
institutions from wrongful claims or misappropriation.
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33. From the evidence of D.W.1, it is evident that 1 acre 60
cents of the properties dedicated to the trust were sold. It is nothing but
misappropriation of trust properties. The suit is filed by the plaintiff not
only as Executive Officer but also as a beneficiary of the temple. This
claim of the plaintiff is not specifically denied by the defendant.
34. Therefore, in view of the development in law as discussed
above, this Court is of the view that the plaintiff is entitled to file the suit.
When it is manifested by the own admission of D.W.1 that 1 acre 60 cents
of trust land had been sold by the first defendant, then it is just and
appropriate that the defendants should be restrained from alienating or
encumbering the suit properties in favour of anybody.
35. With regard to applicability of Section 92 of C.P.C., this
Court finds that Section 92 of C.P.C., has no application in this case in
the light of the prayer asked in this case. Section 92 of C.P.C., applies
only when, the suit is filed for,
“(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person
who has ceased to be a trustee, to deliver possession of any
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trust property in his possession to the person entitled to
the possession of such property];
d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the
interest therein shall be allocated to any particular object
of the trust;
(f) authorizing the whole or any part of the trust property
to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the
case may require.
36. However, this case is filed only seeking prohibitory
injunction restraining the first defendant from encumbering/alienating
the trust properties. As found already, the first defendant had sold 1 acre
60 cents of the trust property. In the said circumstances, the suit for
injunction filed before the District Munsif Court is maintainable.
37. This Court finds that the Courts below have properly
analysed the evidences and rightly decreed the suit. There is no case
made out for interference.
38. In view of the discussions recorded above, this Court
answers that,
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(i) the plaintiff as a beneficiary under the trust is entitled to
maintain a suit for permanent injunction, for substantial question of law
No.1;
(ii) When there is a clear evidence to show that one of the
trustees has sold a portion of the trust properties, against the terms of the
trust settlement deed, despite the performance of religious and charitable
obligations by the trustees, the plaintiff is entitled for the relief of
permanent injunction, for substantial question of law Nos.2, 3;
(iii) When already a portion of the trust properties was sold, it is
required that permanent injunction should be passed against defendants
2 and 3 not to register any document intended to create alienation or
encumbrance in respect of the trust properties, for substantial question of
law No.4; and
(iv) It was discussed and held that the Executive Officer has the
duty to safeguard the temple property and therefore, the Executive Officer
has a right to file a suit, for additional substantial question of law No.1;
(v) In view of the nature of the relief sought ie., preventive
injunction and when there is evidence to show that one of the trustees has
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sold a portion of the trust properties, the suit filed on the file of the
District Munsif Court, is maintainable and it is not necessary to file a suit
before the District Court, for additional substantial question of law Nos.2
and 3.
39. In fine, the judgment of the Courts below are confirmed. This
second appeal is dismissed with the costs of the first respondent.
Consequently, connected Miscellaneous Petition is closed.
. .2023
pm
Index:Yes/No
NCC:Yes/No
To,
1.The Additional Sub-Judge, Dindigul.
2.The I Additional District Munsif Court, Dindigul.
3.The Sub-Registrar No.2, Dindigul Taluk Office, Dindigul Town.
4.The District Registrar,
Scheme Road, Dindigul Town,
Presently having office next to Superintendent of Police Bungalow,
Round Road, Dindigul.
5.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court, Madurai.
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G.CHANDRASEKHARAN, J.
pm
12.12.2023
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G.CHANDRASEKHARAN, J.
The learned counsel for the petitioner submitted that the suit was
filed by the 1st respondent against the appellant represented by its then
Manager S.P.Venkatachalapathy. After he passed away in the year 2007,
S.P.Ramamoorthy assumed office as the present Manager of the Dharma
Chathiram. In the Judgment cause title, the appellant is correctly shown as
represented by present Manager. But in the decree, the name of the deceased
S.P.Venkatachalapathy was shown. MP (MD) No.1 of 2014 in SA (MD)
No.SR45417 of 2010 was filed to accept the cause title in the memorandum
of grounds stating that the then Manager S.P.Venkatachalapathy died during
the pendency of A.S.No.22 of 2005. However, this petition was dismissed.
2.At the time of filing the review application in Rev.Aplc (MD) No.
73 of 2021 against the dismissal of MP (MD) No.1 of 2014, applications for
condonation of delay, dispense with and accepting the cause title were also
filed by the appellant represented by its present Manager S.K.Ganesan.
However, C.M.P.(MD) SR.11142 of 2021 filed for accepting the cause title is
not placed before me. This Court allowed the review application in Rev.Aplc
(MD) No.73 of 2021 on 09.11.2023. Therefore, the cause title should read as
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appellant represented by its present Manager S.K.Ganesan. This has to be
amended in the memorandum of appeal. The learned counsel for the
appellant has also filed a memo to that effect. In view of the fact that the
review application is allowed, the memo filed by the appellant is ordered,
Registry is directed to carry out the necessary amendment in the cause title.
sli
01.03.2024
G.CHANDRASEKHARAN, J.
sli
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01.03.2024
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