V.Vasudeva Naidu v. Commissioner Hindu Religious and Charitable Endowment(Administration)Department Chennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 06.07.2009CORAM:THE HONOURABLE MR.JUSTICE M.VENUGOPALA.S.No.208 of 2002V.Vasudeva Naidu..Appellant/plaintiff-vs-1. Commissioner Hindu Religious and Charitable Endowment(Administration)Department Chennai2. Deputy Commissioner Hindu Religious and Charitable Endowment(Administration)Department Thanjavur. .. Respondents/defendantsThis appeal is filed under Section 70(2) of the T.N.H.R &C.E.Act 22 of 1959, against the Judgment and Decree dated 27.3.2002passed in O.S.No.463 of 2000 on the file of the SubordinateJudge,Tiruvarur.For appellant : : Ms.Sri Vidya for Mr.S.ViswanathanFor respondents : :Mr.M.R.Murugesan, Spl.G.P.(HR & CE)J U D G M E N T The appellant/plaintiff has preferred this appeal as againstthe Judgment and decree made in O.S.No.463 of 2000 by the learnedSubordinate Judge, Tiruvarur. 2.The necessary facts of the case are set out in theplaint in brief as follows: Well one hundred years before, the ancestor of theappellant/plaintiff has founded a Family Trust called"SriVenkatachalapathy Dharmam Chatram". The Chatram building has beenconstructed by the ancestors of the appellant/plaintiff and theChatram has been utilised as rest house for pilgrims. The wet anddry lands mentioned in the plaint schedule property situated in thevillage of Olimathi and Anumanthapuram in Nidamangalam Taluk have https://hcservices.ecourts.gov.in/hcservices/ been dedicated for the maintenance of Venkatachalapathi DharmaChatram and for performance of certain charities. The charitiesconsist of feeding of Brahmins on Dhuvadesi day every month in theDharma Chatram, alms to be distributed to the Brahmins andconducting water pandal charity during the summer every year anddistribution of food packets to the visiting worshippers of SriRajagopalaswamy Temple, Mannargudi in every Dhuwadesi day once in amonth. The registered agreement dated 2.5.1866 and the registeredrelease deed dated 4.1.1923 speak of Venkatachalapathy DharmamTrust. The agreement of the year 1866 has been entered into betweenthe descendants of the founder of the Trust. As per the release deedof the year 1923,one Gopalakrishna Naidu, the then hereditarytrustee relinquished his trusteeship , right in favour of hisyounger brother Ramagovindappa Naidu. The eldest brother of thesaid Gopalakrishna Naidu and Ramagovindappa Naidu is RamachandraNaidu, who is the paternal grand father of the plaintiff.Therefore, the plaintiff is a person interested in the maintenance,upkeep and performance of the Family Trust founded by ancestors ofthe plaintiff.3. By virtue of G.O.Ms.No.21 of 64, the Government issued anorder and wanted to extend the provisions of T.N.Act 22/1959 to theprivate family trust known as Sri Venkatachalapathy Dharma Chatram.The Government as per Notification under Section 3 of the Tamil NaduHindu Religious and Charitable Endowment Act( hereinafter referredto as"TN H.R.& C.E.Act) has treated Sri Venkatachalapathy DharmaChatram as a Hindu Charitable Public Trust. In pursuance of theNotification, objections have been called for and in taking over theAdministration of the Trust by the government, there has been adelay. In the meanwhile, five of the descendants of the founder ofthe Trust viz., Jagannathan,S.Gopalakrishman, V.Gopalakrishnan,V.Raghuraman and J.Ramagovindan without any reference to theplaintiff, who is a senior in age filed an application inO.A.No.18 of 1987 under Section 63(a) of the TN H.R& C.E.Act beforethe second defendant praying for declaration that SriVenkatachalapathy Dharma Chatram Trust is a Private religious Trustand not a public religious Trust within the meaning of the said Act.By order dated 15.1.1989, the second defendant has dismissed thesaid application observing that the Institution has already beennotified as per Section 3 of the T.N.H.R &C.E.Act. The appeal tothe first defendant in A.P.No.70 of 1989 has also been dismissed on10.12.1992. 4. According to the appellant/plaintiff, the nature ofcharities to be performed by the Trustees only specifies that it isa private family trust solely intended for the welfare of the soulsof the ancestors in the other world. The object of the Trust is thespiritual welfare of the Founder and his descendants. Therespondents 1 and 2/defendants 1 and 2 have declared that SriVenkatachalapathy Dharman Trust is a private family religious trustand it is neither a public religious trust nor a public charitabletrust. The plaintiff alone is managing the private Family religiousTrust and is entitled to collect rents for the trust lands under https://hcservices.ecourts.gov.in/hcservices/ lease. The appellant/plaintiff has been paying the land revenue tothe trust lands and therefore he is a person aggrieved by the orderof the second respondent/second defendant in O.A.No.18 of 1987confirming an appeal by the first respondent/first defendant inA.P.NO.70 of 1989. Therefore, the present suit is filed praying theCourt to pass a decree cancelling the order of the secondrespondent/second defendant dated 15.1.1989 in O.A.No.18 of 1987 asconfirmed in appeal by the first defendant in A.P.No.70 of 1989dated 10.12.1982. 5. In the written statement filed by the firstrespondent/first defendant adopted by the second respondent/seconddefendant, it is specifically pleaded that on the basis of thereport of the Inspector, H.R & C.E.(Administration) Department,Nedamangalam, it transpires that there has been no performance ofthe Trust as per dedication and no accounts have been maintained andacting on the said report, the Government has extended theprovisions of Section 3 of the T.N.H.R.& C.E. Act 1959 and aftercomplying with the procedural formalities, a Notification underSection 3 of the Act has been published in G.O.Ms.No.2164 C.T. & R.E. dated 20.12.1977 and per the said order "Sri VenkatachalapathyDharma Chatram" has been notified as a Hindu Charitable PublicTrust coming within the ambit of the Act, and the five individualspurported to be the descendants of the founder of the Trust, whofiled O.A.No.18 of 1987 has been dismissed by the secondrespondent/second defendant and an appeal being preferred inA.P.No.70 of 1989, the same has been confirmed on 10.12.1992. 6. The main plea of the respondents/defendants is that thedesire of the forefathers to perform the dedication has not beencomplied with by the respective individuals, who are in managementand therefore the object of the Trust has been defected and as amatter of fact, Arulmighu Venkatachalapathy Trust properties havebeen dedicated by the forefathers of the appellant/plaintiff forperformance of certain charities as mentioned in the deed and forseveral years, the performance of the charities/functions have notbeen performed. The five descendants/applicants in O.A.No.18 of1987 have not been arrayed as parties in the suit and therefore,the suit is liable to be dismissed. 7. In the additional written statement filed by thedefendants wherein it is mentioned that the suit is filed underSection 70(i) of H.R & C.E.Act and under Section 6(7) of the saidAct, the Subordinate Court is having jurisdiction over the area inwhich the institution is situate and therefore, the SubordinateCourt, Nagapatinam alone has jurisdiction to conduct the suit. 8. On the basis of the aforesaid pleadings, the trial Court(Subordinate Judge,Tiruvarur) has framed three issues. On the sideof the appellant/plaintiff, no witness has been examined and Exs A1to A3 have been marked and on the side of therespondents/defendants, D.W.1 has been examined and Exs B1 to B3have been marked. https://hcservices.ecourts.gov.in/hcservices/

9.The trial Court, on an appreciation of the oral anddocumentary evidence and taking note of the available materialevidence on record, and after analysing the same, has ultimatelycome to the conclusion that the appellant/plaintiff is not entitledto any relief in the suit and resultantly dismissed the same withoutcosts.10.Heard both the learned counsel appearing for the parties andthis Court has noticed their contentions.11.The points that arise for determination are(1) Whether the Sri Venkatachalapathy DharmamChatram is a public Trust or not ? (2) Whether the plaintiff is entitled to therelief of cancellation of the order of the secondrespondent/second defendant dated 15.11.1989 made inO.A.No.18/87 and confirmed in appeal by the firstrespondent/first defendant in his order dated10.12.1992 in A.P.No.70 of 1989? 12. Contentions, Discussions and Findings on Point Nos 1 and2: The learned counsel appearing for the appellant/plaintiffurges before this Court that the trial Court ought to have held thatthe appellant/plaintiff should have been given the furtheropportunity to put forth his objections for extending the Act to thetrust in issue since he has not filed his objections earlier forreasons beyond his control and moreover Ex A1 and Ex A2 documentswill clearly establish that the trust in question is a private trustof appellant's/plaintiff's family and therefore, the same will notcome within the purview of H.R.& C.E.Act and added further theappellant/plaintiff has agitated his right as a trustee being thesenior most member of the family to seek cancellation of theGovernment Notification and in short the trial Court has not lookedinto the above facts in a proper perspective which has resulted in amiscarriage of natural justice and therefore prays for allowing theappeal in furtherance of substantial cause of justice.13. In response, the learned Special Government Pleader(H.R.&C.E) contends that the Venkatachalapathy Dharmam Chatram Trust isonly a public one and that the trial Court has considered allaspects of the matter and has come to the right conclusion indismissing the suit and therefore the same need not be disturbed.. 14. In support of his contention that VenkatachalapathyDharmam Chatram is a public one the learned Special GovernmentPleader(H.R & C.E) relies on the decision of this Court in The Idolof Arulmighu Thayumanaswami by Executive Officer, Rockfort, Tirchi(2001(4)CTC 260 at 264)wherein in paragraph 9, it is observed asfollows: https://hcservices.ecourts.gov.in/hcservices/ "In this case, the A-schedule property Ex P1 Will, was endowed to the ThirunavukkarasuMadalayam for the performance of Specific serviceand charity in connection with the festival ofChithirai Avittam in Thayumanaswamy Temple.Therefore, what was created under the Will wasdefinitely "specific endowment" and it has beenso admitted by the 1st respondent as seen from theextract of petition referred above. The deedrefers to beneficiaries of the endowment who arethe devotees and poor people. The endowment iswith relation to an observance of religious andcharitable character' charitable' since the poorare fed. 'religious' since the idol ofThayumanaswamy is worshipped and thereafter takenin procession. For this amongst others thefounder had set apart the property and hadintended that the income therefrom should beutilised for their performance. Therefore,definitely a 'specific endowment" was created infavour of the petitioner and the decisionreported in Commissioner, H.R & C.E.Administration Dept.v. C.V.Sundarsan 200(3)L.W.468 applies to this case." 15. Admittedly, on the side of the appellant/plaintiff, noone has been examined as a witness. However, on the side of theappellant/plaintiff Exs A1 to A3 have been marked. At this stage,it is pertinent to point out that D.W.1, the Inspector of H.R &C.E.Department in his evidence has deposed that a notice underSection 3 of the Act has been issued to the appellant/plaintiff on20.12.1977, since the charity has not been performed and furtherthat the appellant/plaintiff in the Nedamangalam Village has notperformed the Venkatachalapathy Dharmam Charity and thatappellant/plaintiff has been asked to furnish accounts and later anapplication has been filed under Section 63(a) of the Act by theappellant/plaintiff seeking the relief of a declaration that thesaid Venkatachalapathy Dharmam Charity is a private charity andthat presently no charity is conducted and the charity in issue inthe present case is not a private charity and it is a public charityand in the year 1866, it is mentioned by the ancestors that it isDharma Chatram as evidenced from the records of the file. 16. In Ex A1 agreement dated 2.5.1866, five individuals haveentered into an agreement and in the said document, it iscategorically mentioned that the said Dharma Chatram has beenconstructed from the common funds of the family. Further in Ex A1document, it is mentioned that from the income of the lands, therevenue due to the Government has to be paid and that Brahmins haveto be fed on Dhuvasasi day every month in the Dharma Chatram andalms to be distributed etc., Admittedly, the original trust deed hasnot been filed into Court,since the same is reportedly untraceable.But the agreement dated 2.5.1866 Ex A1 and Ex A2 dated 4.1.1924 https://hcservices.ecourts.gov.in/hcservices/ release deed executed by G.K.Naidu have been filed the trial Court.The Dharma Chatram has been dilapidated and fallen down and thesame has not been renovated. The appellant has not examinedhimself as a witness. No accounts have been filed in respect ofChatram income and as such the Venkatachalapathy Chatram trust isnot in existence. A reading of the recitals in Ex A1 agreement showsthat Dharma Chatram is intended for performance of the someCharities and that the lands in two villages have been dedicated forthe maintenance of Venkatachalapathy Dharma Chatram and therefore,the said Dharma Chatram is for the benefit of the section of publicviz., feeding of Brahmins, conducting water pandal, charity duringthe summer every year and distribution of food packets to theworshippers who visiting Sri Rajagopalaswamy Temple, Mannargudi inevery Dhuvadesi day. 17. Section 6(18) of the Tamil Nadu Hindu Religious andCharitable Endowment Act refers to 'religious Institution' meansmath, temple or specific endowment and includes-i) a samadhi orBrindavan or any ii)other institutions established or maintained fora religious purpose etc., .. Section 6(19) of the Act refers to'specific endowment' means any property or money endowed for theperformance of any specific service or charity in a math or templeor for the performance of any other religious charity etc., In factSection 63 of the said Act empowers the Joint Commissioner or DeputyCommissioner of the Department to decide certain disputes includingwhether the Institution is a religious institution or not etc., 18. Ex A2 is the release deed executed by G.GopalakrishnaNaidu. EX B3 is the order made in O.A.No.18/87 passed by theDeputy Commissioner, H.R & C.E.Admn., Department, Thanjavur dated5.1.1989. It is useful to refer the said order wherein it is interalia mentioned that ' the Inspector of H.R.& C.E.,Needamangalam hassubmitted a detailed report dated 18.2.1988 stating that theInstitution was established by the ancestors of the petitioners,that it owns an extent of 45 acres and 33 cents of Nanja lands and4 acres and 57 cents of Punja lands situated at Olimathi Village andsome extents of lands at Anumanthapuram Village etc and further thatthe above institution has notified by the Government inG.O.Ms.NO.2164 C.T.& R.E. dated 20.12.1977 as per Section 3 of theTamil Nadu H.R & C.E.Act 1959' and under these circumstances, theorders of the Government cannot be questioned and therefore, theapplication filed as per Section 63(a) of the said Act isdismissed,in view of the fact that the Government have notified thesaid Institution under Section 63(3) of the Act 1959 as per G.O.referred to supra. Against the order passed by the DeputyCommissioner,H.R & C.E.(Admn) Department, the appellants have filedA.P.No.70 of 1989 before the Commissioner, H.R.& C.E.Admn.Department, Madras -34 . Ex A3 is the order passed by the firstrespondent /first defendant viz., The Commissioner, H.R.& C.E.AdmnDepartment dated 10.12.1992 in A.P.No.70 of 1989 and in the saidorder it is inter alia held as follows: https://hcservices.ecourts.gov.in/hcservices/ "In the present case, prima facie the Institutionin question is a public' charitable endowment'since the beneficiaries constitute a section ofthe Hindu Public and further the major charitiesto be performed also and of a religious nature assuch the notification of the trust by theGovernment cannot be questioned."and resultantly the appeal filed by the appellants against the orderof the Deputy Commissioner,H.R.& C.E.Admn. Department inO.A.No.18/87 dated 5.1.1990 fails and stands dismissed under Section69(1) of the Act.19. Coming to the next aspect of five descendants of thefounder of the trust have not been arrayed as parties to the presentcase, it is to be pointed out their non-inclusion in the suit asparties is not fatal since this Court opines that the subject matterof the suit/issues can be adjudicated effectively and efficaciouslyin complete and comprehensive fashion without their presence andanswered accordingly . On a careful consideration of respectivecontentions, and on an appreciation of oral and documentary evidenceadduced on both sides, this Court is of the considered view that SriVenkatachalapathy Dharma Chatram is not a private religious trustand inasmuch as there is a stipulation in the registered deed dated5.1.1866 that the charities are 'Dharmam"Kattalai' at Chatram andgiving of aids required by Brahmins, water pandal charity andDhuwadesi Kattalai at Arulmighu Rajagopalaswamy Temple at MannargudiTown and further Ex A1 agreement dated 2.5.1866, the properties areset apart for religious trust, the same is not a private property ora private secular trust property and all these things will beclinchingly, cogently and convincingly point out that the trust inissue is only a public one since the beneficiaries are from thesection of Hindu Public and charities to be performed or allreligious in character and therefore, the orders passed by theDeputy Commissioner and Commissioner are not liable to be interferedwith by this Court sitting in appeal and resultantly the appeal hasno merits and the same is dismissed without costs.20. In fine, the appeal is dismissed and the Judgment anddecree made in O.S.No.463 of 2000 passed by the learned SubordinateJudge, Tiruvarur are affirmed. However, considering the facts andcircumstances of the case, there shall be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ sgTo The Subordinate Judge,TiruvarurCopy to :The Section Officer,VR Section, High Court,Madras.+1cc to Govt. Pleader SR 28726CK(CO)km/20.7.A.S. No.208 of 2002