Sri Subramani Swamy Thirukovil Vs… — Contract and Commercial Disputes | Madras HC (2022)

Sri Subramani Swamy Thirukovil Vs… — Contract and Commercial Disputes | Madras HC (2022)

A.S.(MD)No.271 of 2009

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON : 09.06.2022

DELIVERED ON : 27.06.2022

CORAM:

THE HONOURABLE MR.JUSTICE P.VELMURUGAN A.S.(MD)No.271 of 2009

Sri Subramania Swamy Thirukovil,

Tiruchendur, represented through its Executive Officer. ... Appellant / Plaintiff -Vs1.A.S.V.M.Kannan 2.A.Chidambaram 3.K.Chidambaram 4.Gomathinayagam ... Respondents / Defendants

PRAYER : Appeal Suit is filed under Section 96 of the Code of Civil Procedure to set aside the decree and judgment dated 20.03.2008 made in O.S.No.59 of 2004, on the file of the Fast Track Court No.II, Thoothukudi (Additional District Court, Thoothukudi). For Appellant : Mr.I.Suthakaran For R2 to R4 : Mr.D.Nallathambi 1/18

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JUDGMENT

The appellant is the plaintiff in O.S.No.59 of 2004 on the file of the learned Additional District Judge, Fast Track Court No.II, Thoothukudi, in which the respondents are the defendants. The appellant / temple has filed the said suit, seeking for a direction to the defendants to put the plaintiff in possession of the schedule property; seeking for a direction to the first defendant to pay a sum of Rs.90,000/- (Rupees Ninety Thousand Only) towards past mesne profits with interest thereon from the date of plaint till the date of payment; to render an account of mesne profits from the date of the plaint till the date of possession of the schedule property and to pay the cost of the suit to the plaintiff.

2.The brief facts of the plaint are as follows:-

(i)the suit property is originally belonged to the predecessors of the respondents 2 to 4, namely, Chidambaram Pillai, Malaiperumal Pillai and Paramasivan Pillai, who are the sons of Andiappa Pillai of Alwarthirunagari. By virtue of a registered partition deed dated 07.09.1921, the schedule property and other properties dedicated to Avani and Masi Festival and 2^nd day of mandagapadi kattalai attached to the plaintiff temple. The said Kattalai is an absolute

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dedication for a specific service in the plaintiff temple and therefore, it is a specific endowment. The defendants 2 to 4 claimed to be the trustees of the said Kattalai, they have mismanaged the trust properties and also sold the properties to the first defendant, which is against the purpose and object of the trust created in the said partition deed.

(ii)In the year 1989, the defendants 2 to 4 and others attempted to sell the trust properties. Therefore, the plaintiff filed a suit before the Sub Court, Thoothukudi in O.S.NO.291 of 1991. In that suit, the plaintiff temple had sought for a declaration to declare that the properties are Kattalai properties and for injunction, restraining the trustees from selling them. In the said suit, the trial Court granted a decree for declaration as prayed for, by its judgment dated 14.09.1995, however, dismissed the relief of injunction, stating that since the properties already sold and the first defendant was in possession of the property, the temple was not entitled to get the relief of injunction.

(iii)The same was challenged by the defendants before the District Court, Thoothukudi in A.S.No.193 of 1996, which was dismissed on 03.10.1997.

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The Commissioner of HR & CE Department has already declared the above trust properties as a specific endowment in R.P.No.50 of 1990 dated 27.12.1991. Against which, the 4^th respondent filed a Writ Petition before this Court in W.P.No.4459 of 1992 and the same was dismissed on 07.09.1999. Therefore, more than once, the Civil Court as well as the Commissioner of HR & CE Department declared that it is a specific endowment. Hence, the plaintiff has filed the suit for the aforesaid relief.

3.The brief facts of the written statement filed by the first defendant are as follows:-

The plaintiff has no right in the suit property. The suit property is not a trust property as alleged by the plaintiff and there is no absolute dedication and there is no specific endowment. The averment that the defendants 2 to 4 mismanaged the trust property is denied. Till date, they are conducting the kattalai properly. Therefore, the suit is not maintainable, in view of the provisions of Hindu Religious and Charitable Endowment Act, 1959 (hereinafter referred to as 'the Act'). The first defendant has purchased the property in the year 1989 and has been in possession and enjoyment without any interruption for more

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than the statutory period. Therefore, he and his successors are entitled to the property by adverse possession also and in the year 1997, the first defendant sold the property to one Ramanatha Subramanian. Knowing fully well, the plaintiff without impleading the said Ramanatha Subramanian, has filed the suit. Therefore, this suit is bad for non-joinder of necessary party and the same is to be dismissed with costs.

4.The brief facts of the written statement filed by the second defendant are as follows:-

The suit itself is not maintainable and the temple cannot file the suit before the Civil Court. Regarding the declaration of the Kattalai, only the Commissioner of HR & CE Department has alone jurisdiction to decide whether there is a specific endowment or not. The defendants are the hereditary trustees of the Avani and Masi Festival and 2^nd day of Mandagapadi Kattalai, which is not under the control of plaintiff temple. Therefore, the plaintiff temple has no locus standi to file the suit. Therefore, the same is liable to be dismissed.

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5.Based on the above said pleadings and written statement, the trial

Court framed the following issues:-

“1.Whether the suit is maintainable or not?;

2.Whether the suit in O.S.No.291 of 1991 on the file of the Sub Court, Thoothukudi and R.P.No.50 of 1990 on the file of the Commissioner of HR & CE Department are binding on the defendants or not?;

3.Whether the plaintiff is entitled to recovery of possession, when the first defendant has not given any rights to any party?;

4.Whether the plaintiff is entitled to past and future mesne profits and

5.To what other reliefs is the plaintiff entitled?.

6.In order to substantiate the case of the parties, during the trial on the side of the plaintiff, one of the Assistants of the plaintiff temple was examined as P.W.1 and 12 documents were marked as Exs.A.1 to A.12. On the side of the defendants, the second defendant was examined as D.W.1 and one witness was examined as D.W.2, however, no documents were marked.

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7.On conclusion of the trial, after hearing the arguments advanced on either side, the trial Court dismissed the suit on 20.03.2008, stating that the plaintiff is not entitled for the relief as prayed for.

8.Challenging the said judgment and decree dated 20.03.2008, the plaintiff has filed the present Appeal Suit before this Court.

9.The learned counsel for the appellant would submit that the suit property is originally belonged to the predecessors of the respondents 2 to 4, namely, Chidambaram Pillai, Malaiperumal Pillai and Paramasivan Pillai, who are the sons of Andiappa Pillai of Alwarthirunagari. By virtue of a registered partition deed dated 07.09.1921, the schedule property and other properties dedicated to Avani and Masi Festival and 2^nd day of mandagapadi kattalai attached to the plaintiff temple. The said Kattalai is an absolute dedication for a specific service in the plaintiff temple and therefore, it is a specific endowment. The respondents 2 to 4, who are the trustees, have mismanaged the trust properties and also sold the same to the first respondent, by way of a registered

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sale deed dated 25.09.1989, which is against the purpose and object of the trust created in the said partition deed. The sale cannot confer any title to the first respondent, since the respondents 2 to 4 have no right to sell the property and it is not their individual property, it is a trust property. Therefore, the plaintiff filed a suit before the Sub Court, Thoothukudi in O.S.NO.291 of 1991, seeking for a declaration that the properties are Kattalai properties and for injunction, restraining the trustees from selling them. In the said suit, the trial Court has given a clear finding that the suit property is an endowment property and it cannot be alienated by the trustees. The appeal filed against the said decree was also dismissed by the District Court, Tuticorin in A.S.No.193 of 1996, by its judgment dated 03.10.1997. There is no further appeal filed by the respondents.

10.He would further submit that the Commissioner of HR & CE Department has also declared the above trust properties as a specific endowment in R.P.No.50 of 1990 dated 27.12.1991. Against which the 4^th respondent filed a Writ Petition before this Court in W.P.No.4459 of 1992 and the same was dismissed on 07.09.1999. Therefore, more than once, the Civil Court as well as the Commissioner of HR & CE Department declared that it is a specific

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endowment. Therefore, the appellant temple is entitled to question the mismanagement made by the respondents 2 to 4.

11.Further, he would submit that the endowment is an absolute dedication for a specific service in the appellant temple. In addition to that under HR & CE Act, 1959, the appellant temple has a right of general superintendence over the trust and the trust shall obey all lawful order issued by the appellant temple. The appellant temple has recommended the Commissioner of HR & CE to proceed under Section 23 of the Act. Pending order under Section 23 of the Act, the appellant has taken over the management of the trustees as an interim measure in the interest by the above specific endowment and the appellant temple. The appellant sent a legal notice to the first respondent. Though he received the notice on 11.02.2000, did not respond to the same. Though it is stated that the respondents 2 to 4 had cancelled the sale deed subsequently, the first respondent has not been examined regarding the cancellation of the sale deed. Therefore, the appellant temple has proved the case by pleadings, oral and documentary evidence. However, the trial Court failed to appreciate the evidence and dismissed the suit. Therefore, the same warrants interference.

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12.The learned counsel for the respondents would submit that the suit itself is not maintainable and the temple cannot file the suit before the Civil Court. Insofar as the declaration of the Kattalai is concerned, only the Commissioner of HR & CE Department has alone jurisdiction to decide whether there is a specific endowment. The respondents 2 to 4 filed an application in O.P.No.7 of 2002 before the Commissioner, HR & CE Department to appoint them as permanent hereditary trustees and the same is pending. Further, the Civil Court has no jurisdiction to decide the issue of specific endowment and kattalai. There was no mismanagement as stated by the appellant and they have not violated the conditions mentioned in the partition deed / trust deed. Even the income from the properties is not sufficient to perform Kattalai and mandagapadi and out of their own fund, they are performing Kattalai till now. The appellant also admitted that till now, the respondents 2 to 4 are performing kattalai. Admittedly, there is no breach of trust and they have sold the property and subsequently, they cancelled the sale deed mentioned by the appellant. Now, only the respondents 2 to 4 are in possession. Even the earlier suit filed by the appellant for declaration and injunction was dismissed in respect of the relief of

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injunction. There is no absolute dedication and the appellant temple has no right over the property. Therefore, the trial Court rightly dismissed the suit and there is no merit in the appeal. Hence, the appeal is liable to be dismissed.

13.Heard both sides and perused the records.

14.Since this Court is First Appellate Court as fact finding Court, it has

to re-appreciate the entire evidence independently and arrive at an independent conclusion.

15.Admittedly, as per Ex.A.8, the partition deed, there is a specific endowment. Out of the income from the said property, the respondents 2 to 4 have performed kattalai and mandagapadi and therefore, both the appellant and the respondents have admitted the said partition deed and admitted that kattalai and mandagapadi are being performed from that date. According to the appellant, the appellant temple has right over the property and the management. Once it is dedicated to the temple, it is the property of the temple and the trustees only have to perform object of the trust. In case, the trustees mismanaged the trust or

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breached the trust conditions, the temple can otherwise control the same, take over the property and also remove the trustees from the management and the temple itself can manage it and perform the object of the trust.

16.Whereas it is the main contention of the appellant that the respondents 2 to 4, who are the trustees, attempted to sell the property. Therefore, the appellant temple filed the suit before the Sub Court, Thoothukudi and even in the suit, the Civil Court declared that there is a specific endowment and kattalai attached to the property and therefore, the temple is having power to control over the trust properties. Subsequently, it was found that already the respondents 2 to 4 sold the property to the first respondent. Even in the written statement filed in the suit, the first respondent clearly admitted that he purchased the plaint mentioned property and he was in possession of the same, though the respondents 2 to 4 admitted that they cancelled the said sale deed subsequently, they had taken over the possession and they are in possession and there is no breach of trust.

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17.It is the main contention of the respondents 2 to 4 is that they filed an application before the Commissioner of HR & CE Department in O.S.No.7 of 2002, seeking relief of appointing them as hereditary trustees, still it has not been decided and the Civil Court has no right to declare about endowment and kattalai. The Commissioner of HR & CE Department in R.P.No.50 of 1990 already passed an order that there is a specific endowment. Now the question is whether it is a endowment or not.

18.It is clearly proved that through Ex.A.8 partition deed, the trust has been created. As per Ex.A.8, the respondents 2 to 4 have to perform kattalai and mandagapadi out of the income from the said property. In case that income is not sufficient, they have to perform out of their own pocket money. Though in this case, the respondents 2 to 4 have stated that the income from the suit property is not sufficient and they are spending their own pocket money, according to the appellant, the income from the said property is more than that of expenses for performing the trust. For which, the respondents 2 to 4 have denied it and in order to prove, the respondents 2 to 4 had examined D.W.2. Though the appellant has stated that they would get Rs.30,000/- from the trust property, D.W.2 in his

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statement stated that the income from the suit property would be a sum of Rs.500/-. However, in the most of the questions, he has stated that he does not know. More over, the appellant has established that the trust property mentioned in the plaint is in the locality of the temple and it fetches more income. However, the respondents have not produced any accounts and established the clear income.

19.It is pertinent to note that since the suit is for declaration, the trial Court failed to consider the same. It is admitted that the respondents 2 to 4 sold the property to the first respondent and the first respondent has also admitted that he has purchased the property and he is in possession of the property. Subsequently, the respondents 2 to 4 cancelled the sale deed and though they have stated that they were in possession, absolutely, there is no evidence. However, a reading of the plaint, written statement filed by the respondents and also evidence of D.W.1 clearly shows that the respondents 2 to 4 sold the property, of course subsequently, they have cancelled the same, which means they sold the property or otherwise we can say that they attempted to sell the property. Since no right to sell the property has been given in the trust deed, the respondents 2 to 4 cannot sell the property to third party. Even otherwise, if any necessity arises, they can

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sell only after getting permission from the HR & CE Department and without getting permission, the trustees cannot sell the property and have no right to sell the property. There is no limitation for challenging the alienation of the trust properties and no adverse possession can be claimed against trust property, therefore, the question of adverse possession does not arise.

20.From the oral and documentary evidence, it is clearly seen that as per Ex.B.8, the properties have been endowed and absolutely, there is a specific endowment and out of the income from the said property, they have to perform kattalai and mandagapadi and the property has been dedicated only for that purpose not for other purpose. Further, in the trust deed, it is stated that if the income is not sufficient, the trustees have to perform kattalai and mandagapadi out of their pocket money, which means at any point of time, they cannot sell the property and as per law, the trust property cannot be sold out without permission from the Commissioner of HR & CE Department.

21.Under these circumstances, a perusal of the pleadings and evidence

of the first respondent clearly shows that the respondents 2 to 4 sold the property which is against the object of the trust and therefore, the appellant is entitled for

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the relief of recovery of possession. Though the appellant has stated that they get a sum of Rs.30,000/- per year from the suit property, they claimed Rs.90,000/- for three years towards past mesne profits. Since the appellant admitted that the second respondent has been performing the object of the trust continuously and even the trust deed also shows that out of the income from the trust properties, they have to perform kattalai and mandagapadi, the appellant temple is not entitled to get any mesne profits, unless the temple established that the trustees are not performing the kattalai and mandagapadi. However, since the respondents 2 to 4 mismanaged the property and tried to sell away the property, the temple is entitled to get recovery of possession. Therefore, the appeal is allowed as far as the relief of recovery of possession alone is concerned and the appeal is dismissed insofar as the mesne profits are concerned.

22.In the result, this Appeal Suit is partly allowed and the decree and judgment of the trial Court in respect of recovery of possession, are set aside and insofar as the mesne profits are concerned, are confirmed. No costs.

27.06.2022

Index : Yes / No Internet : Yes / No Myr

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To

1.The Additional District Judge,

Fast Track Court No-II, Thoothukudi.

2.The Record Keeper,

V.R.Section,

Madurai Bench of Madras High Court,

Madurai.

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P.VELMURUGAN, J.

Myr

Judgment made in A.S.(MD)No.271 of 2009

27.06.2022

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