Manali Lakshmana MudaliarSpecific Endowment, Chennai v. P.MANICKARATHINAM

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 30.07.2009Coram :THE HONOURABLE MR.JUSTICE K.RAVIRJA PANDIANandTHE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJAAppeal Suit No.13 of 2002& CMP No.968 of 2009The Commissioner,H.R. & C.E. Department,Chennai 34. ..Appellant/Defendantv.Manali Lakshmana MudaliarSpecific Endowment, Chennai,represented by its HereditaryTrustee Manali Ramakrishnan Mudaliar ..Respondent/Plaintiff1. P.MANICKARATHINAM2. M.K.SENTHILKUMAR3. M.KUPPUSAMY 4. V.RAMALINGAM 5. P.RAMU 6. S.VIMALAN 7. K.BABY 8. T.RADHAKRISHNAN 9. A.ABDUL RAHEEM 10.A.MOHAMMED GHOUSE 11. P.PALANISAMY 12. D.USHA 13. S.ADAIKALAMARY 14. V.VEERACHANDRAN 15. SIVARAMAN 16. UMAMAHASWARI 17. PADMAVATHI 18. GANGA BAI19. R.AZHAGAMBAL 20. K.GANAPATHY 21. M.ANNALAKSHMI 22. S.LAKSHMI 23. C.ARUMUGAM https://hcservices.ecourts.gov.in/hcservices/

24. P.KANNAMMAL 25. A.SURESH KUMAR26. K.KASTURI 27. M.GOPINATH28. G.PAKKIRI 29. G.RUIMANI30. M.AZHAGESAN 31. J.CHANDRA 32. C.THANGAPAZHAM 33. R.RAVI34. K.VEERAPANDIYAN 35. G.BAGHYALAKSHMI 36. N.JAYARAMAN 37. S.VETRIVEL 38. NAJMUNNISA39. V.CHANDRA 40. V.TAMILSELVI 41. T.AMBUJAM 42. S.MOORTHY 43. D.SANTHAKUMARI 44. R.RADHA 45. R.LAKSHMI 46. R.JAMBU47. T.SUNDAR 48. M.PANDU 49. S.DEVAKI 50. T.PALANI 51. K.MURUGAN52. E.SHANTHI 53. S.VALLI 54. T.VIMALA 55. N.VELMURUGAN 56. S.KASTURI 57. A.SARASWATHI 58. P.LATHA 59. S.KALI AMMAL 60 V.VIMALA 61. K.ARJUNAN 62. N.KUPPU 63. M.CHANDRAN 64. R.SEETHALAKSHMI 65. P.SEKAR 66. G.VENKATESAN 67. K.GUBENDIRAN68. V.SARASWATHI 69. S.VISALAKSHI 70. T.DEIVIGAN 71. S.M.ROKKAIYA BEE 72. M.ANANDAN 73. G.AMMAPONNU https://hcservices.ecourts.gov.in/hcservices/

74. S.MALINI 75. H.NIRMALA 76. V.SIVASANKARI 77. K.RAJI 78. K.PANCHAMURTHI79. C.VANAJA 80. P.SUBRAMANIAN 81. J.GOWRI 82. SURIYAGANDHI 83. T.LOGANATHAN 84. R.AMAUDHA 85. R.KANNAN 86. P.GUNASEKARAN 87. GIRIJASANTHI88. P.MARIAMMAL 89. K.ADILAKSHMI90. P.DHANASEKAR 91. P.ELUMALAI92. S.LAKSHMI AMMAL 93. M.USHA 94. G.R.GUNAVARMAN 95. G.R.PARTHIBAN 96. P.VEDAPPAN 97. NEELA 98. K.RAMU 99. R.RAJESWARI 100. ALAMELU AMMAL 101. P.SAROJA 102. KANNAMMAL 103. M.CHANDRA 104. T.SAVITHRI105. T.MURUGESAN 106. A.RAJA 107. V.SANTHI108. R.GANGAMMAL 109. R.RANGANATHAN 110. M.RAMASAMY111. D.SANTHI 112. K.SUGUMARAN 113. K.ARUMUGAM 114. J.VEERAPPA RAYAR115. G.THAIYAL NAYAGAI 116. R.JAYANTHI 117. R.SEENUVASAN 118. R.SENGENI 119. K.KALIYAN 120. R.CHINNAPONNU 121. S.TAMIL SELVAN 122. M.SARALA 123. P.RAMA 124. T.SAKTHIVEL https://hcservices.ecourts.gov.in/hcservices/

125. S.ANJALAI 126. S.SANTHA 127. R.RAMESH 128. N.ALANVANDAN129. R.SURESH 130. R.P.RAJKUMAR 131. M.RAMASAMY 132. L.LATHA 133. DHANALAKSHMI134. M.VENKATESAN 135. T.MURTHY 136. M.BALAJI 137. MOHAMMED BEEVI 138. P.SAGUNTHALA 139. M.AMARAVATHY 140. P.BABU 141. S.DILSHAD BEGAM 142. S.AMIRTHAM 143. P.BABU AMMAL144. A.HUSSAIN 145. G.POONGODI 146. R.RAJAN 147. R.GANESAN 148. R.VIJAYAKUMAR 149. S.SELVI 150. L.KALPANA 151. L.THANGARAJ 152. G.GOPALAKRISHNAN 153. S.SENTHIL KUMAR 154. M.KARUNAKARAN 155. M.DHANASEKARAN 156. K.MUTHULAKSHMI 157. A.AROKIASAMY MALIAYAPA 158. D.ADITHTHAN 159. P.VASANTHA 160. S.ARUL RAJA 161. K.ANNAMUTHU 162. N.SELVI 163. M.RANGANAYAKI 164. E.IRUDAYASAMY ALIAS INNASI 165. R.SAKKUBAI 166. A.MAHALINGAM167. S.YASODAI 168. KASTURI 169. K.BHUVANESWARI 170. D.KAMATCHI AM MAL 171. T.PACHIAYAAMAL 172. K.RAJESWARI 173. MEHBOOB BASHA KHAN 174. P.RAJA 175. G.VENUGOPAL https://hcservices.ecourts.gov.in/hcservices/

176. C.SUBRAMANIYAN 177. JAMILA BEE 178. C.NAGAMBAL 179. A.GOVINDAMMAL 180. R.RADHA 181. M.KASTURI 182. A.AMBIGA 183. A.ALIMA BEEVI 184. S.SUBRAMANIYAN 185. S.SUBRAMANIYAN 186. D.SAROJA 187. A.ARUMUGAM 188. S.SATHYAVANI 189. N.INDIRA 190. S.KALA 191. M.JAYAVELKUMAR 192. P.SURIYAKUMAR 193. K.JAYARAMAN 194. R.JAYAPAUL 195. G.DEVARAJ 196. S.LAKSHMI 197. UDAYAKUMAR 198. K.ARUMUGAM 199. C.THENMOZHI200. K.KARUNKARAN 201. P.KALIYAPERUMAL ..Impleading Petitions/ Proposed RespondentsVS 1) THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENT, ADMINISTRATIVE DEPARTMENT, CHENNAI-34. ..Respondent/ Appellant2) MANALI LAKSHMANA MUDALIAR SPECIFIC ENDOWMENT, CHENNAI, REP.; BY ITS HERIDITORY TRUSTEE, OFFICE AT 21/22, VARADA MUTHIAN STREET, CHENNAI-1. ..Respondent/ Respondent Appeal suit filed under section 70(2) of the Hindu Religiousand Charitable Endowments Act 22 of 1959 against the judgment anddecree dated 30.04.2001 made in O.S. No.184 of 2000 on the file ofthe Subordinate Judge, Cuddalore. CMP NO.968/09. For the reasonstated petitioner praying that in the circumstances stated thereinthe accompanying affidavit High Court may be pleased to implead theabove named 201 petitioners with respect to the above First Appealin A.S.No.13 of 2002. https://hcservices.ecourts.gov.in/hcservices/ For appellant:Mr.T.Chandrasekaran,Special Government Pleader(H.R. & C.E. Department)For respondent:Mr.G.Anbumani Mr.N.Jothi Senior Counsel for proposed petitioner in CMP 968/09JUDGMENT(Judgment of the Court was deliveredby K.RAVIRAJA PANDIAN, J.)The Commissioner of Hindu Religious and Charitable EndowmentsDepartment, has filed this appeal against the judgment and decreedated 30.04.2001 made in O.S. No.184 of 2000 granting the decree infavour of the plaintiff/respondent to sell an extent of Ac.14.14out of lands belonging to the plaintiff to the Pudupalayam Co-operative House-site society at the rate of Rs.1,25,000/- peracre. The correctness of the said decree is canvassed by theappellant on the ground that the suit by the plaintiff is notmaintainable in view of section 108 of the Hindu Religious andCharitable Endowments Act. A prior permission has to be obtainedunder section 34 of the Hindu Religious and Charitable EndowmentsAct before any alienation is made in respect of the properties ofthe Endowment.2. The facts of the case are : Manali Ramakrishnan Mudaliar,the hereditary trustee of Manali Lakshmana Mudaliar SpecificEndowment, filed a suit on the premise that the suit propertiessituated in Pudupalayam, Cuddalore are the trust properties, andthat there were more than 200 persons, who had occupied theproperties last several decades ago and constructed more than 40brick built terraced houses, besides tiled buildings and huts andthe trust was not deriving any income from the suit property forseveral decades. The occupants of the property have formed asociety among themselves under the name of Pudupalayam Co-operativeHouse Sites Society (E. No.2513) (hereinafter called 'thesociety'); that all the attempts made by the plaintiff to evictthem were resisted by the occupants and as well as by the societyand the trust was not able to recover possession of the property.In the said circumstances, permission was sought for from theCommissioner, H.R. & C.E. Department, Nungambakkam to dispose ofthe suit properties. The defendant/appellant in their letter inC.No.29538/60 dated 22.04.1960 permitted the plaintiff to sell theproperties by public auction. The society formed by the occupiersof the property resisted the public auction to be conducted by theplaintiff. There was no takers of the property in the publicauction so conducted as the properties were under the occupation https://hcservices.ecourts.gov.in/hcservices/ and possession of the members of the society. No third party wasinclined to purchase the same. Hence, the properties could not besold in the public auction. 3. Taking into consideration the fact that the property didnot yield any income, but under the occupation of several personsfor several decades, a settlement was reached, rather a compromisewas arrived at the instance of eminent persons and dignitaries,whereby the society itself offered to purchase the suit propertiesand distribute the land amongst its members. The Society offeredto purchase the property at the rate of Rs.1,25,000/- per acre.According to the plaintiff, it was a reasonable proposal and hence,the plaintiff once again applied to the defendant to modify thepermission already given and permit him to sell the property to thesociety at the rate of Rs.1,25,000/- per acre by letter dated17.06.1999. Despite the fact that more than a year had lapsed, thedefendant did not give any reply and when the plaintiff personallyapproached the defendant, the defendant refused to give any answerfor the sale of the property. The plaintiff, finding no otheroption, filed a suit under section 92 of the Civil Procedure Codeby arraying the Commissioner as a party respondent to the suit andsought for the relief of permission permitting the plaintiff tosell the suit property for Rs.17,67,500/- to Pudupalayam Co-operative House site society. 4. The suit was defended by admitting almost all the materialfacts stated in the plaint, such as, the properties belong to theTrust; the properties encroached upon by several persons and are inpossession for several decades; and that all attempts made to evictthem ended in futile. But the only defence taken was that theamount offered by the Society was not on par with the market price.5. The learned trial Judge, after hearing the counsel oneither side and on analysis of the oral evidence let in and thedocuments produced before it, granted the relief as sought for inthe plaint. The correctness of the same is now canvassed before usin this appeal by the Hindu Religious and Charitable EndowmentsDepartment on the grounds stated in the summation of facts. Anapplication to implead 201 persons, who are stated to be in actualpossession of the properties, is filed by the members in CMP No.968of 2009.6. We heard the learned counsel on either side and perused thematerials available on record. We also heard Mr.Jothi, learnedsenior counsel, appearing for the proposed parties in CMP No.968 of2009. 7. The facts are not in dispute. The properties of the Trusthave been occupied by several persons, and they are in suchoccupation for the last several decades and constructed more than40 brick built terraced houses, besides tiled buildings and huts.The trust was not deriving any income from the suit property for https://hcservices.ecourts.gov.in/hcservices/ the several decades. All the efforts made to recover the propertyfrom them went in vain and ultimately, the Trust took a decision tosell away the property to the occupants to atleast have some moneyfrom the occupants, who otherwise would occupy the same without anyhindrance and without making any payment to the Trust. They evenformed a society to protect their possession. That factum has beenexplained to the Commissioner and the Commissioner permitted theTrust by letter dated 22.04.1960, which is marked as Ex.A2, to sellthe property by public auction. That shows that the defendant iswell aware of the situation and then only granted the permission tosell the property in public auction. But when the efforts of thetrust in selling the property through the Public auction did notyield any result, by a letter dated 17.06.1999, the plaintiffinformed this factum to the defendant and sought for permission tosell the property to the society for Rs.1,25,000/- per acre, butthere was total silence on the part of the defendant. The defendantneither gave any permission nor rejected the same. It is curiousto note that in the written statement even the permission grantedunder Ex.A2 has not been vouched by the defendant by innocuouslysaying that the defendant was not able to verify the proceedingsdated 22.04.1960, since the same was 40 years old document.Whatever may be the reason, the fact remains that the defendant hasnot replied to the letter seeking permission to sell the propertiesto the occupants themselves. Taking into the totality of thecircumstances of the case, and the fact that the occupants are inpossession of the properties dating back to several decades priorto the filing of the suit and also the further fact that theproperties could not be sold to any other third party, the trialJudge has granted the decree.8. Before us, the learned Government Pleader appearing for theappellant/defendant contended that the suit itself is notmaintainable, since there is a specific bar for filing of the suitunder section 108 of the Hindu Religious and Charitable EndowmentsAct. He further submitted that prior permission has to be obtainedfor any alienation as per section 34 of the Act, which has not beenobtained in this case, whereas the learned counsel for theplaintiff/respondent argued for sustaining the judgment and decreeof the trial Court. Mr.Jothi, learned senior counsel, appearingfor the proposed parties, also argued for sustaining the order ofthe trial Court.9. Admittedly, these two points were not raised before thetrial Court. As a point as to the bar of jurisdiction of the CivilCourt has been argued, we consider the point. The first point thatarises for consideration in this appeal is whether the suit filedunder section 92 of the Code of Civil Procedure seeking permissionfrom the defendant/appellant is barred because of the provisionsection 108 of the Act. Section 108 of the Act reads as under :"No suit or other legal proceeding in respect of theadministration or management of a religious institution orany other matter or dispute for determining or deciding https://hcservices.ecourts.gov.in/hcservices/ which provision is made in this Act shall be instituted inany court of law, except under, and in conformity with, theprovisions of this Act.”10. It is evident from the above provision that filing of asuit in civil Court in respect of the administration or managementof a religious institution or any other matter or dispute fordetermining which provision is made in the Act, is barred. Whatare the provisions made in the Act for determining or deciding thematter or dispute in respect of the administration or management ofthe religious institution is provided in Chapter V of the Act,which speaks about 'Inquiries'. The said Chapter contains sections63 to 70. Sections 63 and 69 are relevant for deciding the issueon hand. Section 63 vests the power on the Joint Commissioner orDeputy Commissioner to inquire into and decide the disputesenumerated therein, such as, (a) whether an institution is a religious institution;(b) whether a trustee holds or held office as a hereditarytrustee; (c) whether any property or money is a religious endowment;(d)Whether any property or money is a specific endowment;(e)whether any person is entitled, by custom or otherwise,to any honour, emolument or perquisite in any religiousinstitution; and what the established usage of a religiousinstitution is in regard to any other matter;(f)whether any institution or endowment is wholly or partlyof a religious or secular character; and whether anyproperty or money has been given wholly or partly forreligious or secular uses; and(g) where any property or money has been given for thesupport of an institution which is partly of a religiousand partly of a secular character, or the performance ofany service or charity connected with such an institutionor the performance of a charity which is partly of areligious and partly of a secular character or where byproperty or money given is appropriated partly toreligious and partly to secular uses, as to what portionof such property or money shall be allocated to religioususes." 11. Section 69 provides for appeals to the Commissioneragainst any order passed under the provisions of Chapter V andsection 70 provides for suits and appeal to the Civil Courtagainst the order of the Commissioner made under the provisions inthe same Chapter. 12. Thus, the filing of the suit in a Civil Court in respectof the administration or management of a religious institution orany other matter or dispute for determining or deciding whichprovision is made in the Act is barred, except under and inconformity with the provisions of the Act. Though thejurisdiction of the Civil Court to decide the matter that arose https://hcservices.ecourts.gov.in/hcservices/ under section 63 of the Act is not totally prohibited, the sectionrequires that the proceedings prescribed under the Act to befollowed. So far as matters do not relate to the subjectsenumerated in section 63, a civil suit will certainly lie. The lisin the present case does not relate to the subject enumerated insection 63. (See Venkatramanaswamy Deity v. Vadugambal, 1974 (1)MLJ 431).13. The normal rule of law is that Civil Courts havejurisdiction to try all suits of civil nature except those of whichcognizance by them is either expressly or impliedly excluded asprovided under Sec.9 of the Code of Civil Procedure. But suchexclusion is not readily inferred and the presumption to be drawnmust be in favour of the existence rather than exclusion ofjurisdiction. Therefore, jurisdiction of the Civil Court is to beassumed. Exclusion thereof is an exception. Unless the jurisdictionis specifically or by necessary implication is excluded the CivilCourt will continue to have the jurisdiction vide Abdul v. BhawaniAIR 1966 SC 1718; Dhulabhai v. State, AIR 1969 SC 78; State ofA.P. v. Manjeti Lakshmikan Rao, (2000) 3 SCC 689; I.T.C. Limited v.Siemens Public Communications Network Limited, (2002) 5 SCC 510.14. Even in the wake of specific provision in the statutegiving finality to the orders passed by the authorjities under thestatute it is not decisive to conclude that the jurisdiction ofthe Cviil Court is taken away. In Dhulabhai v. State f M.P., AIR1969 S.C. 78), a Constitution Bench of the Apex Court laid downseven principles of parameters regarding the exclusion ofjurisdiction of Civil Court and they are thus:"(1) Where the statute gives a finality to the ordersof the special Tribunals the civil courts’ jurisdictionmust be held to be excluded if there is adequate remedy todo what the civil courts would normally do in a suit. Such provision, however, does not exclude those caseswhere the provisions of the particular Act have not beencomplied with or the statutory Tribunal has not acted inconformity with the fundamental principles of judicialprocedure.(2) Where there is an express bar of the jurisdictionof the court, an examination of the scheme of theparticular Act to find the adequacy or the sufficiency ofthe remedies provided may be relevant but is not decisiveto sustain the jurisdiction of the civil court. Wherethere is no express exclusion the examination of theremedies and the scheme of the particular Act to find outthe intendment becomes necessary and the result of theinquiry may be decisive. In the latter case it isnecessary to see if the statute creates a special right ora liability and provides for the determination of theright or liability and further lays down that allquestions about the said right and liability shall bedetermined by the Tribunals so constituted, and whether https://hcservices.ecourts.gov.in/hcservices/ remedies normally associated with actions in civil courtsare prescribed by the said statute or not.(3) Challenge to the provisions of the particular Actas ultra vires cannot be brought before Tribunalsconstituted under that Act. Even the High Court cannot gointo that question on a revision or reference from thedecision of the Tribunals.(4) When a provision is already declaredunconstitutional or the constitutionality of any provisionis to be challenged, a suit is open. A writ of certiorarimay include a direction for refund if the claim is clearlywithin the time prescribed by the Limitation Act but it isnot a compulsory remedy to replace a suit. (5) Where the particular Act contains no machineryfor refund of tax collected in excess of constitutionallimits or illegality collected a suit lies.(6) Questions of the correctness of the assessmentapart from its constitutionality are for the decision ofthe authorities and a civil suit does not lie if theorders of the authorities are declared to be final orthere is an express prohibition in the particular Act. Ineither case the scheme of the particular Act must beexamined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the civilcourt is not readily to be inferred unless the conditionsabove set down apply.15. In the light of the decisions referred to supra and interms of the statutory provisions above referred to, we are of theview that the suit is well maintainable. 16. In respect of the second point that no permission has beenobtained for alienating the property under section 34 of the Act,we are not able to accept the stand of the appellant. As detailedin the summation of facts, necessary permission was sought forunder Ex. B.1 dated 17.06.1999 for which no reply was forthcomingfrom the appellant. The continuous silence on the part of theappellant made the Trust to move the civil Court for which therespondent should not be faulted, rather should not be denied therelief particularly in the given set of facts. 17. We find, on the peculiar facts and circumstances of thecase, that the amount fixed is also correct and the decree grantedby the trial Court cannot be regarded as faulty, for us tointerfere with. The decree is confirmed. The appeal is dismissed.No costs.18. Mr.Jothi, learned senior counsel appearing on behalf ofcertain persons who are claiming that they are in possession of thesuit properties, and filed CMP No.968 of 2009 seeking to impleadthemselves, has expressed apprehension that the society maydistribute the properties to their whims and fancies without https://hcservices.ecourts.gov.in/hcservices/ identifying the proper persons entitled for distribution of landand argued that certain directions may be issued in this regard. 19. Having regard to the fact that the issue is of the year2000, and the fact that the persons who are in occupation andpossession of the suit properties are in the suit properties for 20to 30 years back, a cautionary note is hereby issued to the SpecialOfficer or the elected persons or whoever is administering thesociety to be careful in identifying the persons, who are entitledto the benefit of the decree granted by the trial Court. Anydereliction on the part of the officers would be viewed seriously.By observing so the CMP No.968 of 2009 is dismissed as thepetitioners are neither necessary nor proper party to the lis. Sd/- Asst. Registrar /True Copy/ Sub Asst.Registrar mfTo1) The Subordinate Judge, Cuddalore.2) The Section Officer, JR Section, High Court, Madras+ 1 cc to the Government Pleader SR 33278+ 2 cc's to Mr.G.Anbumani, Advocate, SR 33133+ 1 cc to Mr.V.Karthikeyan, Advocate SR 33392 Appeal Suit No.13 of 2002& CMP No.968 of 2009BV (CO)RH (10.9.09)