The first defendant is the appellant. The second appeal is preferred against the judgment and decree dated 08.01.1997 made in A.S.No.109 of 1994 on the file of the learned Subordinate Judge, Tuticorin, reversing the judgment and decree, dated 16.02.1984, made in O.S.No.30 of 1993, on the file of the learned Additional District Munsif, Tuticorin.
2.The suit is filed for a declaration, declaring that the plaint schedule mentioned building is a trust property and for a mandatory injunction and recovery of possession. The suit is filed by the Executive Officer, 'Arulmighu Kailasanathasamy Devasthanam', Pasuvanthanai Village.
3.The brief facts of the case are as follows:-
The suit property, the 'Kalmandapam' and 'Nandavanam' of Pasuvanthanai Village is situated on the North Ratham Street. Every year the 3rd day of Tamil month of Chitrai, the second defendant and her husband used to do service to the deity of the plaintiff's temple. On that day, the deity used to be taken to the 'Kalmandapam' and the second defendant and her husband used to conduct 'Abishegam', 'Neivethiam' and 'Deeparadhana' and thereafter, the deity used to be taken to the temple. The second defendant migrated to Madurai and the first defendant is the resident of Pasuvanthanai Village and he knows that such service is being conducted on the dedication of the suit property. However, the second defendant had executed a sale deed in favour of the first defendant conveying the suit property and the first defendant has been trying to demolish the 'Kalmandapam' and put up shops in the suit property and therefore, the plaintiff is constrained to file a suit for declaration and for recovery of possession.
4.The suit was resisted by the first defendant. The first defendant would admit that every 3rd day of Tamil month of Chitrai, the Kattalai used to be conducted as narrated by the plaintiff. However, according to the first defendant, the said service is a personal service by the second defendant and there is no charge or dedication of the suit property to the deity. According to the first defendant, the suit property and the other properties are originally belonged to the Ettaiahpuram Jameen and the property was given as 'Devathasi Maniam' to the second defendant. Thereafter, a portion of 'Inam' property became 'Nadavanam' and therefore, the possessor of the property is given patta and title. According to the first defendant, the second defendant has an alienable right in the property and thereby she has rightly alienated and the first defendant has purchased the same. It is also submitted by the first defendant that as far as the service of 'Kattalai' is concerned, he is ready to perform the same and he has also approached the temple authority for doing so.
5.Based on the above averments, the parties went for a trial and on perusal of the oral and documentary evidence, the trial Court found that the suit property is a dedicated property as defined under Section 6(17) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, and therefore, under Section 41(1) of the Act, it cannot be alienated. However, the trial Court found that under Section 41(2) of the Act, if the service is not conducted, the Department can recover the expenses from the, who is in possession. Thereby, the trial Court granted a limited decree of declaration alone and the other reliefs were negatived.
6.The temple went on appeal in A.S.No.No.109 of 1994 for the disallowed portion and the first defendant preferred the cross appeal for the relief granted. The first appellate Court viz, the learned Subordinate Judge, Thoothukudi, formulated the points for consideration and found that the plaintiff's Temple having been declared for the property is also entitled to recover the same from the defendant and thereby modified the decree and judgment of the trial Court by granting the relief of recovery of possession and dismissed the cross appeal. Against which, the first defendant has preferred the present appeal on the following grounds:-
(i) The Courts below ought to have held that the grant in favour of the second defendant's ancestors is a personal grant burdened with service as the grant was not made to the temple but to the individual burdened with performance of certain service during festival times.
(ii) The Courts below erred in law in drawing adverse inference against the defendant as if they have not established that the suit properties are personal grants which approach is erroneous inasmuch as it is for the plaintiff to establish his case and should not depend on the case of the defendants.
(iii) The judgment and decree passed by the Courts below are un- sustainable in law inasmuch as the suit properties are not resumable as provided under Sections 41 and 42 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, when the suit properties were granted to the second defendant's ancestors as a personal grant burdened with service.
7.On admission, this Court has framed the following substantial questions of law:-
1.Whether in law the suit properties are resumable under Section 41 of the Tamil Nadu Hindu Religious Charitable Endowments Act, 1959, when the suit properties are personal grant burdened with service and when the particular services are performed regularly?
2.Whether in law the suit properties are religious endowments as provided under Section 6(17) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, when the suit properties were personally granted to the second defendant predecessors and the same were being possessed and enjoyed personally and the particular services are being performed regularly for two generations?
3.Whether the Courts below erred in law and misdirected themselves to casting the burden on the defendant to establish negatively that the suit probabilities were not the grant made to the temple when 'in law' it is for the plaintiff to establish its case as provided under Sec.101 of the Indian Evidence Act, 1872?
8.Heard Mr.K.Govindarajan, for Mr.J.Pothiraj, learned counsel appearing for the appellant and there is no representation for the respondents.
9.The learned counsel for the appellant pointed out that the property is not the dedicated property to the temple and therefore, it is not coming under the explanation under
Section 6(17) of the Act. The learned counsel pointed out that the service was dedicated by the second defendant viz., Kanniyammal, who was given the personal grant of the property. Therefore, the suit property is a personal grant burdened with service and as such, the property can be alienated subject to continuation of the service. In short, the learned counsel pointed out that the property is charged with service and it is not the dedicated property.
10.I have carefully considered the submission of the learned counsel for the appellant.
11.It is an admitted fact that every 3rd day of Tamil Month of Chitrai, 'Kattalai' (Service) is to be conducted for the deity of the plaintiff's temple. The description of the 'Kattalai' and the remarks thereon are recorded in Register No.13 of the temple, which is marked as Ex.A6. The said 'Kattalai' is also admitted by the defendant. It is also admitted that the property is a vacant site with a 'Kalmandapam'. According to the plaintiff, the deity used to be taken to the 'Kalmandapam' and after 'Abishegam' and 'Aarathana', it would be returned back to the temple. Obviously, such service is only from the income of the property. According to the defendant, it is a personal service and the property is not dedicated for the service.
12.According to the defendant, initially the property belonged to one Ettaiahpuram Jameen and it was given as 'Devadasi Maniam' and after abolition of the Inam, the possessor obtained title over the property and therefore, being a personal grant, it can be alienated.
13.Sections 6(17) and 41 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 reads as follows:-
Section 6(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.
Section 41 : Resumption and re-grant of inam for performance of any charity of service - (1) Any exchange, gift, sale or mortgage and any lease for a term exceeding five years of the whole or any portion of any inam granted for the support or maintenance of a religious institution or for the performance of a charity or service connected therewith or of any other religious charity and made, confirmed or recognised by the Government shall be null and void:
Provided that any transaction of the nature of aforesaid (not being a gift) may be sanctioned by the Government as being necessary or beneficial to the institution.
14.The case of the defendant is that the suit property is an Inam property and the possessor viz., the second defendant was given title tot he property and she has an alienable right. It is also contended that the 'Kattalai' is only a personal service. 1 disagree with the appellant for the simple reason that the suit property itself is 'Kalmandapam' with vacant site. The description in the records would show that the vacant site is a 'Nandavanam'. Though there are some tax receipts to show that the building thereof was assessed for tax, it is admitted that the 'Kalmandapam' was in existence and the deity used to be taken there for 'Abishegam' and 'Aradhana'. Obviously, the expenses for such service is only from the property. In that case, it is an Endowment as defined under
Section 6(17) of the HR & CE Act. There is no proof to show that the property is only charged with service and the very purpose of presence of 'Kalmandapam' and 'Nandavanam' would show that the property is dedicated for service and it is regulated by the provisions of the HR & CE Act. Therefore, it is an endowment, as defined under
Section 6(17) of the Act and coming under the provision of Section 41 and therefore, it cannot be alienated. Hence the plaintiff had established that the property is dedicated and burdened with service. Therefore, the property cannot be alienated. The substantial questions of law are answered accordingly.
15. In the result, the Second Appeal is dismissed. However, there will be no order as to costs.
MPK To
1.The Executive Officer, Arulmighu Kailasanathasamy Devasthanam, Pasuvanthanai, Arulmighu Shanbagavalli Amman Temple, Kovilpatti
2.The Subordinate Judge, Tuticorin.
3.The Additional District Munsif, Tuticorin.