Madras High Court
Arulmighu Subramania Swamy Deity vs Eraniyal Chekala Community on 7 June, 2023
A.S.(MD)No.1 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD)No.1 of 2015
and
M.P.(MD)No.1 of 2015
Arulmighu Subramania Swamy Deity,
Through its Joint Commissioner/Executive Officer,
Having office at Tiruchendur. ... Appellant / Plaintiff
-Vs-
1.Eraniyal Chekala Community,
Neyoor Post,
Kanyakumari District,
Through its President,
Subramanian @ Mani,
S/o.Ramiah,
No.29/23, South Sekala Street,
Eraniyal.
2.Palani
3.K.Veerabahu Subramanian ... Respondents/Defendants
PRAYER: This Appeal Suit is filed under Section 96 of the Civil Procedure Code
to set aside the judgment and decree dated 28.02.2014 passed in O.S.No.36 of
2012 on the file of the II Additional District Judge, Tuticorin.
For Appellant : Mr.M.Muthugeethayan
For R1 : Mr.N.Pandiyarajan
1/21
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For R2 : Mr.Lakshmi Gopinath
for M/s.Polax Legal Solutions
For R3 : No Appearance
JUDGMENT
Aggrieved over the dismissal of the suit filed seeking declaration and
recovery of possession and mandatory injunction not to construct any further
construction in the suit property, in O.S.No.36 of 2012 on the file of the learned II
Additional District Court, Tuticorin, dated 28.02.2014, the present appeal is filed
by the plaintiff.
2.For the sake of convenience, the parties are arrayed as per their rank
before the trial Court.
3.The brief facts leading to the filing of the Suit are as follows:
(i) Arulmigu Subramania Swamy Temple, Tiruchendur is the plaintiff in
the suit. Originally the suit properties are endowed to the temple for the purpose
of doing certain charities, viz., Viswarupa Neivathiyam and Archanai vide
partition deed, dated 02.01.1905 executed among one Kandasamy Pillai and
Muthiah Pillai. In the said deed, the suit properties were earmarked for doing
certain charities. Once the properties have been endowed to the temple for
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performing charity and service, the said properties are the absolute properties of
the Temple and same cannot be alienated. However, the third respondent, the legal
heir of Muthiah Pillai sold a portion of the suit properties to the first respondent
under Ex.A2, dated 10.09.1976. Similarly, the father of the third defendant sold a
portion of the suit properties in favour of the grandfather of the second defendant
under Ex.A3, dated 25.11.1960. After coming to know about the sale made in
respect of the suit properties, the plaintiff issued a notice to the third defendant on
12.06.2003 under Ex.A5 and the same was not replied. In the meantime, the first
defendant demolished the old building located in the suit property and made an
attempt to put up a new construction. In this regard, notice was also issued to the
first defendant under Ex.A6. Further, the second defendant also made an attempt
to demolish an another building situated in the suit property. Hence, the suit had
been filed by the plaintiff seeking declaration, recovery of possession and
permanent injunction.
4.It is the contention of the first defendant that the suit properties were
originally belonged to the family of the third defendant. The third defendant
obtained release deed from the other legal heirs and became an absolute owner of
the suit properties and he executed a sale deed in favour of the first defendant.
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The first defendant is regularly doing Neivaithiyam and Archanai to the plaintiff
Temple. As the properties belong to the Chekala Community, the said community
is doing all the works and worships to the plaintiff Temple. The community is
maintaining the properties by putting boundaries and making valuable
improvements in the suit properties. The plaintiff has no right over the suit
properties. The first defendant is doing all charities to the Temple.
5.The second defendant has filed a written statement to the effect that the
second defendant is the owner of the suit second schedule property. He contended
that the suit second schedule property is originally belonged to his grandfather,
namely, Essakkiyapillai, who purchased the said property under sale deed, dated
25.11.1960. There is no recital in the partition deed with regard to the
performance of any religious rites or charities in the second schedule property.
Therefore, the second defendant contended that the plaintiff Temple has no right
over the second schedule property and the second defendant has right to demolish
or construct any building in the suit second schedule property.
6.Based on the above pleadings, the trial Court had framed the following
issues:
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“1.Whether the plaintiff Temple is entitled for declaration that the
schedule properties were given to the Temple as endowment properties to
perform certain religious rites and charity in the Temple or not?
2.Whether the plaintiff Temple is entitled to recovery of
possession of the schedule properties from the defendants?
3.Whether the plaintiff Temple is entitled to get permanent
injunction restraining the defendants from putting up any constructions in
the schedule properties?
4.To what other reliefs?”
7.In order to prove the case, on the side of the plaintiff, P.W.1 was
examined and Ex.A1 to Ex.A7 were marked and on the side of the defendants,
D.W.1 and D.W.2 were examined and Ex.B1 to Ex.B1 to Ex.B7 were marked.
8.Based on the evidence and materials, the trial Court dismissed the suit
mainly on the ground that the plaintiff Temple has not proved the title over the suit
properties by producing documents.
9.Challenging the said decree and judgment, the present Appeal Suit has
been filed by the plaintiff.
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10.The learned counsel for the plaintiff/appellant vehemently contended
that the suit properties are originally endowed to the plaintiff Temple for
performing certain religious activities. It has been clearly captured in Ex.A1,
partition deed, dated 10.09.1976 executed among Muthiah Pillai and his brothers
that the suit properties were endowed to perform certain charity by a Will of the
year 1893. The suit properties were allotted to Muthiah Pillai. When the very
document proves the endowment and earmarking of the property for doing
religious charity, now merely on the basis of some recitals in Ex.A1, it cannot be
contended that the temple has no title over the suit properties. Even the second
defendant in his written statement had admitted Ex.A1. Therefore, once Ex.A1 is
admitted and not disputed, the question of proving the same by way of other
documents does not arise at all. Further, the trial Court has not appreciated the
entire recitals in Ex.A1, instead the trial Court had chosen to consider few
sentences, which were in favour of the defendants. Hence, the intention of the
parties was clearly established and the same cannot be defeated.
11.It is the further contention of the learned counsel for the plaintiff that
the trial Court had failed to go into the entire recitals in Ex.A1. When the
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properties have been dedicated and when the said dedication is completed for the
purpose of doing charity, it could be held only as a complete dedication in favour
of the temple. Even in the written statement, all the defendants have taken a stand
that they are continuing to do certain charity in the suit properties. That itself
clearly indicates that the suit properties have been originally endowed for religious
purposes. The entire reading of Ex.A1 proves the intention of the original owners
to do the religious charity in the suit properties. Further, Ex.A1 indicates that the
properties were endowed not only to do service to the plaintiff temple, but also to
do service to other temples. Such being the position, the trial Court non-suited the
plaintiff Temple merely on the ground that no document is filed to prove the title
of the plaintiff Temple. The said decree and judgment has to be set aside and the
suit has to be decreed.
12.In support of his contention, he relied upon the following judgments:-
(1)A.A.Gopalakrishnan vs. Cochin Devaswom Board and others
reported in (2007) 7 SCC 482;
(2) Kulalar Peravai rep. by its Secretary vs. A.S.S.Nataraj and others
reported in 2022 (1) CTC 207; and
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(3) Idol of Sri Renganathaswamy rep by its Executive Officer, vs.
P.K.Thoppulan Chettiar and others reported in (2020) 17 SCC 96.
13.The learned counsel for the respondents submitted that Ex.A1, clearly
shows that the suit properties have been allotted to the respective sharers with
absolute right even to convey the property. Therefore, merely because some
service is earmarked in the suit properties, the same cannot be treated as a
complete dedication. At the most, it can be taken as only a charity to do certain
services. The services contemplated under Ex.A1 is Archana and Neiveidhyam.
For which, complete dedication is not at all required. The intention expressed in
the partition deed under Ex.A1, clearly shows that absolute right has been created
in favour of the sharers. Further, it is the contention that Ex.A1 does not state that
charity should be performed without any interruption. The appellant traces the
title to the property only on the basis of the Will, of the year 1893. But, the said
Will has not been produced before this Court. The recital in the document that a
sum of Rs.150/- is retained for the purpose of services clearly indicates that the
suit properties are only meant for charity and not a complete dedication. Hence, if
any charity or service is not performed, action could be initiated only under
Section 38 of the Tamil Nadu Hindu Religious and Charitable Endowments Act.
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Such being the position, the Temple cannot claim absolute title over the suit
properties, which had not been dedicated completely in favour of the Temple. The
tax receipts and Electricity receipts were in the name of the respondents. All the
facts have been fairly considered by the trial Court and then the suit came to be
dismissed. Hence, the learned counsel for the respondents pray for dismissal of
the appeal suit.
13.In the light of the above submissions, now the points that arise for
consideration in this appeal are:
“1)Whether the suit properties are endowed for the purpose of
performing any service to the plaintiff Temple and if so, it is mere a charity or
complete dedication?; and
2)Whether the plaintiff is entitled to the relief of declaration, recovery
of possession and permanent injunction?”
14.The suit has been laid by the Temple mainly on the ground that the
suit properties have been completely endowed to the Temple for the purpose of
performing some services to the temple. The plaintiff traces such endowment on
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the basis of Ex.A1, partition deed dated 02.01.1905. It is relevant to note that
though survey number has not been mentioned in Ex.A1 except four boundaries of
the properties, identity of the properties is not disputed. The only defence taken
by the defendants is that the plaintiff has not established any title and the
defendants are continuously performing services as mentioned in Ex.A1.
15.Ex.A1 is the partition deed entered between one Kandasamy Pillai
and Muthiah Pillai. The first schedule property was allotted to Kandasamy Pillai
and the second schedule property was allotted to Muthiah Pillai. A careful perusal
of the recitals shows that out of the properties allotted to two brothers, certain
properties, which have been earmarked for doing certain charities or services to
the temple, have to be retained to continue such charity. Such recital is as follows:
“,jd; 1tJ jgrpy;fspy; fz;oUf;fpwgo brhj;Jf;fspy; rpy
brhj;jpd; tUk;goapyUe;J rpy jUkq;fs; bra;J tUk;goahf ek;Kila
khjhkfh; Kj;jahgps;is mth;fs; capy; K:ykha; vw;g;ghL
bra;jpUf;fpwgoahy; ehk; ,UtUk; ,jd; 1tJ 2tJ jgrpy;fspy;
tpthpj;jpUf;fpwgo mtuth; ghfr; brhj;J rk;ge;jg;gl;l jUkj;ij
mth;mtnu vd;bwd;iwf;Fk; elj;jp tuntz;oaJ.”
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16.The above said recital in Ex.A1, makes it clear that from the first and
second schedule of properties, which are the subject matter of the partition in
Ex.A1, certain properties alone had been earmarked for doing services forever.
This makes it very clear that such endowment has been made in the year 1893 in a
Will. The Will is also referred in Ex.A1. Though the recitals of the document
indicate that the absolute title is also allotted to the sharers, the fact remains that
except few properties, which are endowed for performing certain charity, the
absolute enjoyment had been given to the sharers. Further it is also relevant to
note that the properties endowed for doing certain services had been clearly
mentioned in Ex.A1 in page No.14 of clear copy, which reads as follows:
“tPLk; fila[k; jpUr;bre;J}h; Rg;gpukzprhkp tp];tU:g
bea;ntj;jpaKk; mh;r;riza[k; bra;J tuntz;oa jh;kj;Jf;Fk;
ghj;jpag;gl;oUg;gjpy; nkw;go jh;kj;ij ek;kpy; Kj;ijahgps;is rhpaha[k;
fpUkkha[k; elj;jp tu ntz;oaJ”.
17.The said recital makes it very clear that the suit properties, which
have been earmarked with specific boundaries under Ex.A1, were specifically
endowed for the purpose of doing certain charities to the Temple. The sentence
“tPLk; fila[k; jpUr;bre;J}h; Rg;gpukzparhkp tp];tU:g bea;ntj;jpaKk; mh;r;riza[k;
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bra;J tuntz;oa jh;kj;Jf;Fk; ghj;jpag;gl;oUg;gjpy;”makes it very clear that the
properties were earmarked with specific boundaries for doing certain services,
namely Neiveidhiyam and Archana continuously.
18.It is relevant here to refer sub sections 16, 17 and 19 of Section 6 of
the Tamil Nadu Hindu Religious and Charitable Endowments Act:
(16) “religious charity” means a public charity associated with Hindu festival
or observance of a religious character, whether it be connected with a math or
temple or not;
(17) “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 archaka, service holder or other employee of a
religious institution;
Explanation.—(1) Any inam granted to an archaka, service holder or other
employee of a religious institution for the performance of any service or charity
in or connected with a religious institution shall not be deemed to be a personal
gift to the archaka, service holder or employee but shall be deemed to be a
religious endowment.
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Explanation.— (2) All property which belonged to, or was given or endowed
for the support of a religious institution, or which was given or endowed for the
performance of any service or charity of a public nature connected therewith or
of any other religious charity shall be deemed to be a “religious endowment”
or endowment” within the meaning of this definition, notwithstanding that,
before or after the date of the commencement of this Act, the religious
institution has ceased to exist or ceased to be used as a place of religious
worship or instruction or the service or charity has ceased to be performed:
Provided that this Explanation shall not be deemed to apply in respect of any
property which vested in any person before the 30th September 1951, by the
operation of the law of limitation;
(19) “specific endowment” means any property or money endowed for the
performance of any specific service or charity in a math or temple or for the
performance of any other religious charity, but does not include an inam of the
nature described in Explanation (1) to clause (17);
Explanation. —(1) Two or more endowments of the nature specified in this
clause, the administration of which is vested in a common trustee, or which are
managed under a common scheme settled or deemed to have been settled under
this Act, shall be construed as a single specific endowment for the purposes of
this Act ;
Explanation.—(2) Where a specific endowment attached to a math or temple is
situated partly within the State and partly outside the State, control shall be
exercised in accordance with the provisions of this Act over the part of the
specific endowment situated within the State;”
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19.A combined reading of the above sections makes it very clear that any
property given or endowed to the temple for the purpose of any charity of public
nature connected there with or of any other religious charity shall be deemed to be
a 'religious endowment'. Similarly, specific 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. If the above definition is
applied, Ex.A1 clearly indicates that the suit properties have been endowed
specifically for the purpose of doing charity services to the plaintiff Temple.
Hence, the said endowment shall be considered only as a 'religious endowment'
and also 'specific endowment'. Therefore, when the donors had an intention to
leave the properties for the purpose of doing certain services to the temple, the
intention cannot be defeated by taking a different view.
20.Further, in the partition itself, the suit properties have been
specifically endowed to perform specific services to the temple and it has been
specifically mentioned about the continuance of doing charity forever. The very
fact that only few properties have been identified with specific boundaries and it
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has been used only for charitable purposes, clearly proves the intention of the
ancestors of the third defendant and others to endow the property to the Temple.
When the intention of the parties from the inception is clear that the properties had
been endowed only for the purpose of doing charity, the Court as parens patriea
has to necessarily protect the property, which had been endowed to the plaintiff
Temple.
21.Admittedly, the service is only meant for the temple. The temple is
the place, where the large number of people appear and gather and the charity to
the temple will benefit only the public at large or otherwise the fluctuating body of
persons incapable of being specifically identifiable. Such being the position, the
charity acquires the character of public in nature. The Hon'ble Apex Court in the
case of Idol of Sri Renganathaswamy, rep by its Executive Officer vs.
P.K.Thoppulan Chettiar, Ramanuja Koodam Anandhana Trust reported in 2020
(2) CTC 341 (SC) had clearly held as follows:
“16.The distinction between a public and private charity was set out by
a Constitution Bench decision of this Court in Mahant Ram Saroop Dasji v S P
Sahi6. 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
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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.”
Where the beneficiaries of a trust or charity are limited to a finite
group of identifiable individuals, the trust or charity is of a private character.
However, where the beneficiaries are either the public at large or an amorphous
and fluctuating body of persons incapable of being specifically identifiable, the
trust or charity is of a public character. This test has been consistently followed
by subsequent benches of this Court, most recently in a three judge Bench
decision of this Court in M J Thulasiraman v Hindu Religious & Charitable
Endowment Admn7. In the present case, the Deed of Settlement states that the
charity is to be carried for the benefit of the ?devotees‘ who visit during certain
Hindu religious festivals. The charity is one which benefits the public and the
beneficial interest is created in an uncertain and fluctuating body of persons.
The ?devotees? as a class of beneficiaries are not definitive and therefore, the
respondent trust is a public trust.”
In the present case, since the very properties had been endowed to the plaintiff
Temple, it has to be held that the suit properties have been specifically endowed
for doing charity and services to the temple.
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22.Though recitals with regard to the charity had not been found in
Ex.A3, sale deed, dated 25.11.1960, in which the father of the third defendant
executed a sale in favour of the grandfather of the second defendant, it cannot be
concluded that the suit properties had not been dedicated to the plaintiff Temple.
It is relevant to note that the sale of the properties under Ex.A3, sale deed, dated
25.11.1960 is made only on the basis of the allotment made under Ex.A1, partition
deed, dated 02.01.1905, which is the parent document. When the parent document
itself clearly refers to the earlier Will, under which the suit properties had been
dedicated to the plaintiff Temple, mere omission in the subsequent documents
about the charity will not give any advantage to the defendants to claim absolute
title over the property. Further, under Ex.A2, sale deed dated 10.09.1976, a sum of
Rs.150/- had been fixed to do certain services in the temple. Allotting such
particular amount itself makes it very clear that the parties, ie., seller and the
purchaser are aware that the properties are specifically endowed to the Temple to
do certain charity. Therefore, the subsequent recitals, which had been made by the
parties, who had purchased the properties suppressing the earlier recitals in the
original deed for the purpose of transferring the property, cannot be a ground to
hold that it is only a charity to perform services and not a complete dedication.
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23.It is also to be noted that D.W.1 is the president of the first
defendant's community. In his evidence, he had admitted that in the Ex.A2, it is
referred that there should be service to the temple and Rs.150/- to be retained for
such service. It is relevant to note that retaining of Rs.150/- for service had been
first time introduced in Ex.A2 only during the year 1976. Whereas, the original
parent deed under Ex.A1 clearly proves the absolute dedication in favour of the
Temple. Further, in his evidence, he had also admitted that they are continuing
service, even when the suit properties were vacant site and they also received a
communication from the Temple that the suit properties are endowed to the
Temple. He had also admitted that they have not obtained any permission for
purchasing the property. He had also admitted in his cross examination that the
suit properties are meant for service to the temple for doing Neivethyam and
Archanai. It is not known whether the service is still continued and he had
obtained any permission to construct a new house in the suit premises.
24.When the pleadings and the evidence about the endowment of the
property in favour of the Temple to perform certain charity and services under
Ex.A1 are not disputed, the question of placing the burden on the plaintiff to prove
the title by producing the Will and other title deeds does not arise at all. Once the
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suit properties are completely dedicated even in the year 1893 as per the Will
referred in Ex.A1, any subsequent sale with regard to the temple properties
without getting sanction from the Commissioner of the Hindu Religious and
Charitable Endowments Department under Section 34 of the Act is void ab initio
and based on that subsequent documents, the defendants cannot resist the plaintiff
from seeking declaratory relief and other reliefs. Once the property is held to be
the charitable property and dedicated to the temple, the temple can recover the
same from the persons, who are occupying the said properties. Admittedly, the suit
properties are now vacant sites. Only when an attempt has been made by the
defendants 1 and 2 to put up some constructions, the suit came to be filed. As the
limitation is not applicable to recover the possession of the temple property under
Section 109 of Act, this Court is of the view that the plaintiff Temple is certainly
entitled for declaration as well as recovery of possession and also mandatory
injunction restraining the defendants from making any alienation over the suit
properties.
24.In the result, the appeal suit is allowed and the decree and judgment
of the trial Court is set aside and the suit is decreed for declaration, recovery of
possession and injunction as sought for. The respondents 1 and 2 shall hand over
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the possession of the properties to the plaintiff Temple within a period of two
months from the date of receipt of a copy of this judgment. No costs.
Consequently, connected miscellaneous petition is closed.
07.06.2023
Index : Yes/No
Internet : Yes/No
ta
To
1.The II Additional District Judge, Tuticorin
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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N.SATHISH KUMAR, J.
ta
Judgment made in
A.S.(MD)No.1 of 2015
07.06.2023
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