High Court · 2006

tiuyIN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 27.10.2006CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANA.S.No.700 of 1997andC.M.P.No.11299 of 19971.The Commissioner, HR. & CE Admn. Department, Nungambakkam High Road, Madras-34.2.The Joint Commissioner,.. Appellants HR. & CE Admn. Department, Nungambakkam High Road, Madras-34.3.The Joint Commissioner, HR. & CE Admn. Department, Nungambakkam High Road, Madras-34... Appellants vs.1.W.N.Alala Sundram,2.Veeraraghavan3.T.N.Singarayan4.G.Kumaravelu5.The Executive Officer, A/m. Agastheeswarankoil, Villivakkam, Madras-49.6.The Executive Officer, A/M. Somiya Damadaraperumal Temple, Villivakkam, Madras-49. .. RespondentsPrayer: This Appeal has been filed against the decree and Judgmentdated 27.10.1995, passed in O.S.No.5916/1990, on the file of the FirstAssistant Judge, City Civil Court, Madras.For Appellants : Mr.T.Chandrasekaran, Spl.GP. for HR. & CE. https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.V.RAhavacharai (For R1) Mr.C.Ravichandran (For R2) Mr.S.Shanmugam (For R5) Mr.D.Nellaiaphan (For R6) JUDGMENTThis appeal has been preferred against the decree and Judgmentpassed in O.S.No.5916/1990, on the file of the First Assistant Judge,City Civil Court, Madras, dated 27.10.1995. The Defendant is theappellant herein. 2. The short facts of the plaintiff's case in the plaint are asfollows:-2(i) The plaintiff has filed the suit to set aside the orderpassed in Appeal Petition No.57/87 by the first Defendant on 21.3.1990and to declare under Section 63(a) of the Tamil Nadu Hindu Religiousand Charitable Endowment Act, 1959 (Act 22, 1959) that PakkiyammalTrust is not a public trust. There was a trust by name Pakkiyammal inrespect of Sri Swamiya Dhamodara Perumal temple as per HR & CE Act.The above said Pakkiyammal Trust cannot be known as a public trust.The second Defendant, the Deputy Commissioner of HR & CE Department,Chennai-34 has issued a notice claiming that Pakkiyammal trust is apublic trust. The plaint schedule property are settled in favour ofPakkiyammal by her forefathers as per the above said settlement deed,Pakkiyammal was in possession and enjoyment of the plaint scheduleproperty from 1928 to 1959. Pakkiyammal had executed a settlementdeed in favour of Raju Cehnttiar and through him his wife Jegathambalgot the plaint schedule property. After Jegathambal her son NatarajanChettiar came into possession of the property and after NatarajanChettiar his son plaintiff was entitled to the plaint scheduleproperty and he was in possession and enjoyment of the same. The 6thand 7th Defendants have no right in the plaint schedule property. Thepetition filed by the plaintiff belonged to a private trust, wasdismissed. The Appeal preferred by the plaintiff before the firstDefendant was also dismissed. Under a wrong notion that the plaintplaint schedule property belonged to the 6th Defendant, the firstDefendant has passed an erroneous order. The first Defendant hasfailed to note that there was no endowment in favour of the 7thDefendant. Only to perform certain Tharmam, a liability has beencreated over the property and it cannot be said that it was anendowment. The first Defendant has failed to consider that theplaintiff is the owner of the plaint schedule property. Hence tocancel the order of the first Defendant the plaintiff has filed thesuit. 2(ii) The Defendants 1, 2 and 8 have filed a joint writtenstatement and the other Defendants remain exparte. In the writtenstatement it has been stated that there was no endowment performed asper the settlement deed executed by the forefather of the plaintiff, https://hcservices.ecourts.gov.in/hcservices/ and 7th Defendant alone is entitled to enjoy the plaint scheduleproperty. Pakkiyammal Trust was created only for performing aspecific endowment. The plaintiff was not given any specific right inrespect of the suit property. The trust has no right in the suitproperty. The order passed by the 8th Defendant is valid. Hence thesuit is liable to be dismissed.3. On the above pleadings the learned trial Judge had framed fourissues and after going through the oral and documentary evidence hascome to a conclusion that the plaintiff is entitled to the relief asprayed for and consequently set aside the order passed by the firstDefendant dated 21.3.1990 under Ex.A.6. Aggrieved by the above saidfindings of the learned trial Judge, Defendants 1, 2 and 8 havepreferred this Appeal. 4. Now the point for determination in this Appeal is whether anyspecific endowment has been made under Ex.A.1-document dated 4.6.1926warrants a declaration that the 7th Defendant temple is a religiousinstitution under Section 63(a) of the Tamil Nadu Hindu Religious andCharitable Endowment Act, 1959?5. The point:-5(i) Ex.A5 is the order of the Deputy Commissioner, HR & CEDepartment, passed under Section 63(a) of the Tamil Nadu HinduReligious and Charitable Endowment Act. The plaintiff has claimedthat the premises in Door No.17, Sivankoil Street, West Madras Street,Villivakkam, Madras-49, comprised in S.No.1/A, 78, measuring North toSouth 36' and East to West 213' at Madras-49, belonged to a ReligiousInstitution on the ground that a specific endowment has been madeagainst the said property. Aggrieved by the said order of the DeputyCommissioner, HR & CE Department, under Ex.A.5, the plaintiff haspreferred an Appeal before the Commissioner, who also confirmedEx.A.5-order under Ex.A.6, which is being challenged inO.S.No.1596/1990 before the First Assistant Judge, City Civil Court,Chennai, who had allowed the claim of the plaintiff setting asideEx.A.6-order, which necesitated the Defendants 1, 2 and 8 to preferthis Appeal before this Court. 5(ii) The only point to be decided in this Appeal is whetherany specific endowment has been made under Ex.A.1-document orPakkiyammal derived any right in respect of the plaint scheduleproperty under Ex.A.1. The recital in Ex.A.1 is to be read in betweenthe lines to see whether any right has been conveyed under Ex.A.1 infavour of Pakkiyammal. The exact recital in Ex.A.1 in favour ofPakkiyammal dated 4.6.1926 executed by the trustees of SriAgastheeswara Swamy Thevasthanam are as follows:-"jpUg;gjp ehuhaz brl;oahh; ghhphs; ghf;fpak;khSf;fFnkw;go I[py;yh nkw;go jhYf;fh nkw;go rg;o];ohpf;fl;ilr;rhh;j 73tJ https://hcservices.ecourts.gov.in/hcservices/ bek;gh; tpy;ypthf;fk; fpuhkj;jpy; _ mfj;jP];tu Rthkpahh; njt];j;jhdjw;kfh;jh;fshd jhq;fp. Rhkpehj Kujypahh;(1) \ jhq;fp. Fhe;ijKunfrKjypahh;(2) btq;fluhkS bul;oahh;(3) Rhkp buloahh;(4) Mfpa ehq;fs;ehy;tUk; nanfhgpj;J vGjpf;bfhLj;j jw;krj;jpuk; fl;Ltjw;f;Fk; fPh;Hepy RthjPd mf;fphpbkz;L 1921 tUlk; brd;dg;gl;lzk; Kj;jpahy; ngl;ilK:l;ilf;fhud; bjUt[ 4tJ bek;gh; tPl;oYs;s khq;fhL vy;yg;gbrl;oahUf;F fPH;epyk; RthjPdk; bra;J bghpa rj;jpuk; fl;o itjjtisapy;njt[];j;jhd jpUg;gzp KjyhdJfs; brt;itaha; ele;J tUtijg;gw;wa[k;me;j rj;jpuk; ij> Mo khjq;fspYk; ch;r;rt jpdq;fspYk; tUk; $df;Tl;lq;fSf;Fk; nghJkhdjhf ,y;yhjjpdhYk; \ njt];j;jhd mgptpUjpiaf;fUjpa[k; ,d;bdhU rj;jpuk; fl;LtJ ,trpabkd;W vq;fSf;Fnjhd;Wtjhy; \ jpUbthw;wpa{h; fpuhkj;jpYs;s fh.fe;jrhkp brl;oahiuehq;fs; nfl;Lf;fbfhz;lgoahy; mth; jd; Fkhuj;jpa[k; fhyQ;brd;wjpUg;gjp ehuaz brl;oahh; ghhpahs; ghf;fpak;khsf; bfhz;L rj;jpuk;fl;Ltjhfbthg;g[f; bfhz;ljhy; me;j mk;khSf;F fPH; b\oa{y;y; fz;lbrf;gh;jp go fPH; epyj;ij ehq;fs; ehy;tUk; xUkpj;J kdg;g{h;tkha;RthjPdk; bra;tjha; \ njt];j;jhdk; jtpu vq;fSf;fhtJ vq;fs;gph;f;fhyj;jpy; tUgth;fSf;fhtJ ahbjhJ mf;Fq;pfilahJ \ghf;fpak;khs; RthjPdk; bra;Jf; bfhs;Sk; epyj;jpy; ]h];tpjhkd jh;krj;jpuk; fl;o rpthrhjdk; nghl;L j;d MapR ghpae;jk; jhndghpghypj;J gpuFjd;dhy; epakpf;Fk; thh;RfshYk; Vb$z;LfSf;Fk; Xh;]h];ptjhh;g;ghLbra;J ghpghypj;J tuntz;oaJ. \ rj;jpuk; ve;jfhyj;jpYk; bghJ$dj;jpw;f;nf cgnahfpf;f ntz;oaJ Foj;jdj;jpw;f;F ve;j fhyj;Jf;Fk;tplf;TlhJ ,e;j rj;jpuj;jpy; vt;tpjkhd yhgKk; Mif itf;f;f TlhJ. \rj;jpjuj;jpw;f;Fz;lhd rpg;ge;jp rpyt[fSk; kuhkj;JfSk; \ghf;fpk;khSk; \ ghf;fpak;khs; Vh;g;gLj;Jk; thh;RfSk; Vb$z;LfSnkbrhe;jj;jpyy br;aJf;bfhs;s ntz;oaJ. \ rj;jpujw;f;Fthpnah;g;gl;lhYk \ ghf;fpak;khs; tifuhf;fns elj;jpf;bfhs;sntz;oaJ.\ rj;jpuj;jpy; gQ;rkh; kfk;kjpah; ePq;fyhf ,e;J gpuhzpfs; K:d;W jpdk;jq;ft[k; fypahz Kjyhd Rgfhhpaq;fl;Fk; njt];j;jhd cgaf;fhuh;fl;Fk;xU ehs; ,uz;L ehs;. K:d;W ehs; jq;f cgnahfg;glntz;oaJ. \ghf;fpak;khSf;Fk; mth;thhpRfl;f;Fk; ,\;lg;go bylh; K:ykhfRgfhhpaq;fl;f;F cgnahfpf;f ntz;oaJ mRggpunah $dq;fl;f;fhtJmRj;jkhd gpf;fzp $dq;fSf;fhtJ ,le;juf;Tlhj \ rj;jpjuj;jpYk;moepyj;jpYk; ve;jfhyj;jpYk; thhpRfshYk; Vb$z;LfshYk; xj;jp fpiwak;KjyhdJfs; bra;a mjpfhuk; fpilahJ ,e;jg; gof;F ehq;fs; ehy;tUk;rk;kjpj;J vGjpf;bfhLj;j moepy];thjPd mf;fphpbkz;L.The above said recital in Ex.A.1 will clearly go to show thatPakkiyammal was entrusted with the suit property only to construct anadditional Choulty to accommodate the devotees to Sri AgastheeswaraSwamy Temple. The recital will clearly go to show that since the said https://hcservices.ecourts.gov.in/hcservices/ Pakkiyammal volunteered to construct the above said Choulty out of herown volition, the trustees of Sri Agastheeswara Sawmy Temple haveentrusted to her the plaint schedule property. It has beenspecifically mentioned that only the public are entitled to use thechoulty and it has been specifically mentioned that the Choultry is tobe maintained by the said Pakkiyammal, her decendence or her nomineesby spending money from their pocket. It has been further specificallystated in Ex.A.1 that no one can create any mortgage or anyencumbrance over the plaint schedule property and it has been furtheremphasized that the choultry cannot be rented out at any time and noincome can be derived from out of the choultry and no one cae have anydesire to get gain from out of the above said choulty. Under suchcircumstances, it is clear from the recital that the intention of thetrustees who had executed Ex.A.1, that there was no right given toPakkiyammal except to construct an additional Choultry in the suitproperty since she herself volunteered to do the said service. Thecontention of the plaintiff that under Ex.A.2 and Ex.A.3, he cannottrace his title to the suit property because Pakkiyammal herself hasno right to execute Ex.A.2-settlement deed, since she herself had notderived any title to the suit property under Ex.A.1. 5(iii) The learned Special Government Pleader appearing forthe appellants relied on 2000(3) LW 468 (Commissioner, HR & CE,Administration Dept. Vs. C.V.Sundarsan and another), and contendedthat as per the said dictum the recital under Ex.A.1 will attract theprovision under Section 6(19) of HR & CE Act and hence the orderpassed under Ex.A.5 & 6 are to be confirmed by dismissing the suitfiled by the plaintiff. The facts of the above said case are that:" One Cheetalla Venkatachalam Chetty Charities foundedby Cheetalla Venkatachalam Chetty in the year 1882, had setapart his house bearing old No.174, New No.61, GovindappaNaicken Street, George Town, for the performance ofThadhiarathanal Service in Perumal Temples at Madras, fromwhich food had to be distributed to the "Desanthiris" in thetemples. A slab inscription dated 22.09.1882 WrittenStatement also embedded on the wall of this property todenote the creation of this endowment. Sometime in the year1969, the Deputy Commissioner, Hindu Religious andCharitable Endowments, Madras, initiated proceedings underSection 61(1) of the Hindu Religious and the CharitableEndowments Act, 1959,(hereinafter referred to as the Act) toframe a scheme in respect of the Charities on acount of themismanagement by the then trustee. The grandson of thefounder one C.Ragavalu styling himself as a Defacto-trusteealso filed an application under Section 63(1) of the Act fora declaration that this endowment was a private trust. Boththese maters were heard together by the Deputy Commissionerand while dropping the proceedings under Section 64(1) viz., https://hcservices.ecourts.gov.in/hcservices/ O.A.19/69, he dismissed the application under Section 63(a)of the Act holding that the suit trust is religious Charity.Against this, the aforesaid Sri.Ragavalu Chetty filed anappeal under Section 69(1) of the Act to the Commissioner,HR & CE. This appeal was also dismissed by the Commissionerholding that the property is a specific endowment under theAct. Aggrieved by this, the said Ragavalu Chetty, grandsonof the Founder of the Charities filed the statutory suitunder Section 70(1) of the Act before the City Civil Courtat Madras viz., O.S.No.2114 of 1981. According to him, thetrust was purely private. There was no specific direction bythe Founder to perform the Charity in any particularreligious institution and further there was no absolutededication of the property for the performance of any"Kattalai" to made the charity, a specific endowment andtherefore, he prayed that the order of the Commissioner, HR& CE,be set aside.The Commissioner, HR & CE, in the Written Statementarrayed as the first defendant stated that the statutoryauthorities had correctly found that there was an absolutededication by the Founder and the clandestine removal of thestone inscription also proved that there was an attempt madeby the present defacto trustee to remove the property fromthe purview of the HR & CE, department. Therefore, thedefendant prayed that the suit should be dismissed.After going through the evidence the learned trial Judge held that:"The property had been endowed by the donor for theperformance of service of feeding the pilgrims inVaishanavite Temples in Madras City and dismisssed the suit,holding tht the suit endowment is of a public natureconnected with the temples and the trust. The appeal filed before this Court was allowed, settingaside the decree and judgment of the trial Court. Againstthat order of the single judge, Letters Patent Appeal wasfiled wherein it has been held as follows:"The Charity to be performed here is theThahirahannai service which is propitiation andoffering of food to the deity at the Perumal templesand thereafter the Founder intended the food to bedistributed to the pilgrims. The feeding of pilgrimshas been held in the aforesaid case a public charityand since it is associated with the offering at thePerumal Temples it partakes of a religious characteralso. It cannot also be denied that the pilgrims atPerumal temples will only be Hindus.Appeal was ultimately allowed by the DivisionBench, setting aside the order of the learned SingleJudge and thereby dismissed the suit." https://hcservices.ecourts.gov.in/hcservices/ The above said dictum squarely applies to the present facts of thecase. Here also under Ex.A.1 Pakkiyammal was given only a right toconstruct an additional choultry in the suit property and there wasendowment created by dedicating the same to the use of the publicparticularly to those devotees who throng the temple during Thai andAdi festivals. Since the Choultry, which is in existence could notaccommodate them the trustee who wrote Ex.A.1 had felt that anadditional choultry is absolutely necessary to accommodate thedevotees who visit the temple during the months of Thai and Adi.Pakkiyammal was given a right of maintenance of the above saidchoultry and she was not given any right to neither use the choultryfor more than three days or to get any income from out of the abovesaid choultry. It has further been specifically stated in Ex.B.1 thatonly out of her own income Pakkiyammal has to maintain the above saidchoultry. So, the above said dedication of choultry to the publicunder Ex.A.1 is only an endowment which will attract the provisioncontemplated under Section 63(a) of the HR & CE Act.5(iv) The learned counsel appearing for the respondent wouldcontend that Pakkiyammal was given a right to maintain the choultryfrom out of her income and hence there was no endowment created forthe suit property. In respect of this contention the learned counselfor the respondents relied on 2001(2) CTC 351 (The Commissioner, HR &CE,(Admn) department vs. N.A.Ramaswamy Chettiar and two others).The facts of the case will not be applicable to the present facts ofthe case because the subject matter of the said case related to aprivate trust belonged to Vanika Vaisya Community. The facts of theabove said case in brief are as follows:"People belong to Vanika Vaisya Community ofMannachanallur have formed a sangam and named it as"Mannchanallur Vanika Vaisya Sangam" (hereinafter called as"the Sangam") and registered the same under the SocietiesRegistration Act. The said sangam was represented by thePresident and Secretary, who have filed the suit underSection 70(1)(ii) of the Hindu Religious CharitableEndowments Act (Act 22 of 1959) read with Order 7, Rule 1,CPC in O.S.No.620 of 1980 on the file of Subordinate Judge,Tiruchirapalli to set aside the order of the Commissioner ofHindu Religious and Charitable Endowments (Admn.)Department, Madras dated 19.2.1980 in A.P.No.58 of 1977 andalso prayed for a declaration that the suit properties arenot the properties of any religious endowments. The learnedSubordinate Judge, Tiruchirapalli decreed the suit on21.09.1981 and the same was confirmed by the learned SingleJudge of this Court in A.S.No.369 of 1984 by the Decree andJudgment dated 2.1.1996. As against the same, theCommissioenr, HR & CE(Admn.) Department has preferred theAppeal before the Division Bench of this Court, wherein ithas been held as follows: https://hcservices.ecourts.gov.in/hcservices/ "A cursory perusal of the deed dated 9.5.1961 woulddisclose that the people of a particular communityconvened the General Body Meeting on 11.2.1960 andendowed the properties to carry out certain Upayams(Charities) and the same was reduced into writing forthe benefit and guidance of future generation of thatcommunity people. As per the unanimous decision takenon that day, the settlement deed was also executed andregistered, on 9.5.1961. It was further resolved thatthe properties will be administered. Upayams would becarried out, by the presidents of the Sangam as per theby laws of the Sangam as such, the property vests withSangam and the performance of Charities are carried outas per the resolutions passed in the General Body,which are amenable to changes and that therefore, theCharities set out in the deed are not specificendowments and the HR &CE department cannot poke theirnose in the administration."But in the case on hand there is no private trust at all. Thetrustees of a particular temple have executed Ex.A.1-deed to constructan additional choultry for the purpose of public use. Under suchcircumstances, the facts of the above said dictum will not beapplicable to the present facts of the case.5(v) The other case relied on by the learned counsel for therespondents is 1991 LW 337 (R.M.AR.AR.RM.AR.Ramanathan Chettiar Vs.Commissioenr for HR & CE., Madras). The facts of the said case are asfollows:"Late RM.AR.AR.RM.Arunachala Chettiar, a native ofDevakottai, was religious and charitable minded. Accordingto the plaintiff, he created endowments purely of a privatecharacter for the spiritual benefit of himself, hisdescendants, the members of his family and his closerelatives and friends. He died on 23rd February, 1983,leaving behind him surviving his two widows and a widoweddaughter-in-law, the wife of a predeceased son, who was alsochildless. Each of the two widows and the widowed daughter-in-law adopted a son in accordance with the custom of theNattukotai Chettiar community. The plaintiff and the secondDefendant are the adopted sons of late Arunachalam Chettiarand the third Defendant is his adopted grandson. Consequentupon certain internal disputes in the family a suit foradministration and partition of the estate of lateArunachalam Chettiar was filed, and it was numbered asO.S.No.93 of 1938 on the file of the Sub-Court, Devakottai.In that suit properties privately endowed by late Chettiarwere also the subject-matter. Two joint receivers wereappointed in that suit which ended in a compromise. In thesaid compromise the private character of the endowment was https://hcservices.ecourts.gov.in/hcservices/ recognised and a scheme was framed thereto under which thetrust should be maintained in rotation by the plaintiff andDefendants 2 and 3 each for one year. Subsequently, inanother family, litigation, O.S.No.35 of 1966 Sub-Court,Devakottai, the plaintiff has been recognised as the trusteeto be in charge of the endowed properties. It is in thatcapacity and after due sanction the plaintiff has institutedthe three suits referred to above in the circumstances to bestated hereinafter.The plaintiff has traced the history of the endowmentsthus-Late Arunachalam Chettiar was doing worship in manysaivite temples. He did many charities some of which werereligious in character and some secular. He used to setapart moneys in the course of his business for theaforesaid purposes. Cosideratble amounts so set apart gotaccumulated. Late Arunachalam Chettiar, therefore, had toexecute trust-deeds and at one particular point of timeWritten Statement was called upon to confirm such trustbefore the Income tax authorites. Ex.A.4 is one of suchaffidavit filed by him before the taxing authoritiesaffirming the nature of the trust created by him. Thetrusts were being performed by turn trustees in accordancewith the intentions of the author of the trust. There was nointerference by the Hindu Religious and CharitableEndowments department till the death of the founder of thetrust. At one time there was an attempt by the Department tointerfere and levy fees under Act 19 of 1951, as if theendowments were of a public nature. The aggrieved personsfiled successfully writ petitions before the High Court andprevented such a levy. But in the above proceedings thequestion whether the endowments created by late AurnachalamChettiar was of a public nature or whether it is a religiousendowment coming within the provisions of Act 19 of 1951 wasleft open to be decided under the provisions of the Actitself. As the Deputy Commissioner for Hindu Religious andCharitable endowments, Thanjavur, initiated punitiveproceedings against the plaintiff and defendants 2 and 3under S.45 of Act 19 of 1951, hereinafter referred to as theAct the plaintiff and defendants 2 and 3 applied underSection 57 of the Act for due determination of the matter inissue whether the endowments created by late ArunachalamChettiar were of a public or a private character. The Deputy Commissioner after due enquiry was of theview that some endowments covered by the trust deed arereligious and some specific endowments. An Appeal waspreferred before the Commissioner, who by an order confirmedthe order of the Deputy Commissioner. Hence the suits werefiled before the Sub-Judge, challenging the orders of theCommissioner of HR & CE. The Sub-Judge has confirmed the https://hcservices.ecourts.gov.in/hcservices/ orders of the Deputy Commissioner and Commissioner, HR & CEDepartment, by holding that the suit trust is a religiousendowment and not a private trust. Against the saidfindings, the said Appeal was preferred, wherein it has beenheld as follows:"A 'Specific endowment' is defined thus in Sec.6clause 19- 'specific endowment' means any property or moneyendowed for the performance of any specific service orcharity in a math or temple, or the performance of anyother religious charity, but does not include an inamof the nature described in Explanation(1) to clause(17).From the above definition it is seenthat everyendowment made by a donor may not squarely come withinits meaning. It should be clear either by expressdedication or by necessary implication tht aparticular property has been given for the performanceof any service of a public nature connected with atemple. Such giving or endowing the property for theperformance of any service or charity in a temple,etc., should be apparent from the evidence let in aparticular case. It cannot be a matter of assumptionor presumption unless by a course of conduct foryears such inference is possible. Further, theproperty should have been given for the performance ofany service of a public nature connected with thetemple. In the instant case, the evidence is that theendowment is not to any particular temple. It is forthe performance of abhishekam in the Siva temples inthe country. Obviously therefore, it bristles withvagueness. The choice is left to the trustees for thetime being of the endowment to choose the temple. Thetemple authorities are not even informed of such aperformance of service. The fund is controlled by thetrustees and the abishekam is performed in the nameand jenma nakshathiram of the donor and the members oftheir family. The temple authorities cannot enforcethe performacne of the service because they areunaware of the fact whether in one particular templesuch abishekam is going to be performed at all duringthe Mahasivarathri day.Under such circumstance only it has been held in the said case thatthere was no public dedication and there was no specific endowment.That is not the case herein. Under Ex.A.1 there is a specificendowment to the effect that the choultry to be constructed by thepakkiyammal is to be endowed for the purpose of public use. Undersuch circumstances, the facts in the above said case will not fit inwith the facts of the present case. https://hcservices.ecourts.gov.in/hcservices/ 5(vi) The other case relied on by the learned counsel forthe respondents is AIR 1974 ANDHRA PRADESH 316 (M.AppalaRamanujacharyulu Vs. M.Venkatanarasimhacharyulu and others), whereinit has been held that;"Mere execution of a deed of dedication withoutthe donor intending to act upon the terms of the deed wouldnot create a valid endowment. To constitute a validendowment, it must be established that the donor intendedto divest himself of his ownership in the propertydedicated. In order to determine whether an endowment isnominal or real, the factors relevant and material are (i)Whether, infact, any endowment has been created or not,and(ii) the conduct of the parties and the surroundingcircumstances. Were an endowment has, in fact, been createdor a trust came into existence, the subsequent conduct ofthe parties with regard to the enjoyment of the propertysettled or endowed,is not very much material."Under Ex.A.1, the donor has been specifically mentioned as "public".Under such circumstance, Ex.A.1 conveys a specific endowment in favourof the public. There was no right given to Pakkiyammal to enjoy or topossess the plaint schedule property under Ex.A.1. So under Ex.A.1neither Pakkiyammal nor the plaintiff under Pakkiyammal can claim anyright in respect of the plaint schedule property. The plaint scheduleproperty under Ex.A.1 has been dedicated for the use of public andpublic alone viz, the devotees who come to the 6th Defendant-templeduring Thai and Adi months. 5(vii) Yet another dictum relied on by the learned counselappearing for the respondents is 1952(1) MLJ 282 (The Commissioner forHindu Religious Endowments Board, Madras Vs. Sri Vinayakar ArudraTiruppani Sabha, having its office at No.32, Vinai Theertha VinayakarKoil Street, Kosapet, Madras). In the above said case whileconfirming the orders of a Single Judge, the Division Bench of thisCourt has held as follows:-"The appellant's case is almost entirely on theterms of the memorandum of association, Ex.P.4- according tohim, the fact that the object in Written Statement mentionedas the conduct of the controller in a particular temple wassufficient to prove an endowment. We cannot agree. Therecannot be an endowment unless there is a clear divesting ofownership of the owner in favour of the third party astrusteee or by a declaration constituting the owner himselfas a trustee."But in the case on hand there is a dedication under Ex.A.1 in favourof the public. Under such circumstance, it cannot be said that theorders passed by the Deputy Commissioner as well as the Commissionerunder Ex.A.5 and Ex.A.6 are invalid. So necessarily this Court has to https://hcservices.ecourts.gov.in/hcservices/ interfere with the Decree and Judgment of the learned trial judge inO.S.No.5916/1990 which in my opinion is completely erroneous innature. The point is answered accordingly.6. In fine, the Appeal is allowed with costs, setting aside theDecree and Judgment passed in O.S.No.1596/1990 on the file of theFirst Assistant Judge, City Civil Court, Chennai, and therebyconfirmed Ex.A.5 and Ex.A.6- orders.ssvSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo, 1. The Registrar, City Civil Court,Chennai.2. The First Assistant Judge,City Civil Court, Chennai.3. The Record Keeper,VR Section, High Court, Madras.ONE CC TO THE SPL.G.P., HR & CE (SR NO 50480)A.S.No.700 of 1997JRG(CO)BP