This first appeal is directed against the Judgment and Decree dated 21 August 1987 in O.S.No.1973/1986 on the file of the learned XV Assistant City Civil Court, Chennai.
2.The fourth defendant is the appellant.
3.Parties to this appeal are referred to as plaintiff and Defendants.
Background facts :-
4.The suit in O.S.No.1973/1986 was preferred by the plaintiffs against the defendants praying for a money Decree for a sum of Rs.41,401/- by way of refund of the advance consideration paid by him for the purpose of purchasing the property of the temple by name "Sundareshwarar Temple", Madras.
5.In the plaint in O.S.No.1973/1986, plaintiff inter-alia contended thus:-
(a)Defendants 1 to 3 are the trustees of the temple by name "Sundareshwarar Temple". They have entered into an Agreement with the plaintiff on 12.02.1983 agreeing to sell the property of the temple bearing D.No.20, Masudhi Street, Saidapet. As per the Agreement, the property was agreed to be sold for a total consideration of Rs.1 lakh. Defendants 1 to 3 also received a sum of Rs.10,001/- simultaneous with the execution of the Agreement. Subsequently, further amount of Rs.10,000/- and Rs.14,500/- were paid on 13.03.1983 and 14.07.1984 respectively. Advance consideration was received by the Defendants 1 to 3 in their capacity as trustees of the temple. On 14 March 1983, Defendants 1 to 3 made an application before the Commissioner, H.R. & C.E. Department seeking permission to sell the temple property. As per proceedings dated 17 March 1983, Commissioner, H.R. & C.E. Department called upon the trustees to inform the market value of the property. However, there was no follow up action to execute the Sale Deed on the basis of the Agreement, which made the plaintiff to send a notice to the Defendants on 29 October 1984.
(b)Notice was received by the Defendants 1 and 4. Notice sent to the Defendants 2 and 3 were returned un-served. The fourth defendant in his reply informed the plaintiff that he was not aware of any such transaction. In such circumstances, the plaintiff was constrained to file the suit for the purpose of getting back the amount paid by him.
6.The suit was contested by the Defendants. In the Written Statement filed by the first Defendant, it was contended thus :-
(a)Defendants 1 to 3 are the trustees of the temple. It is true that an agreement was entered into with the plaintiff. Defendants 1 to 3 duly approached the Commissioner, H.R. & C.E. Department seeking permission to sell the temple property. However, permission was not granted. On the other hand, the trustees were directed to sell the property by way of public auction. Auction was later notified on 18.06.1983 and as per the said notification, auction was scheduled to be held on 18.07.1984. Plaintiff was also aware of the auction notification. However, he has not taken any steps to take part in the public auction. Since the H.R. & C.E. Department did not grant permission for private sale, the trustees were not in a position to execute the Sale Deed and as such, plaintiff is not entitled for a Decree. Plaintiff has given only a sum of Rs.20,000/-. His contention that he has paid a further sum of Rs.14,500/- was against facts. The amount advanced by the plaintiff was deposited in the account of the temple maintained in the Saidapet Branch of the Indian Bank. The amount was subsequently spent for renovation of Gopuram, plastering and providing mosaic floor to the temple. The Executive Officer took charge of the temple from the trustees and as such, it was the fourth defendant who is liable to pay the amount to the plaintiff.
7.In the Written Statement filed by the fourth defendant, it was contended thus :-
(a)The Executive Officer was not a party to the sale Agreement and as such, he was an unnecessary party to the suit. Before executing the sale Agreement in respect of the temple property, permission of the Hindu Religious and Charitable Endowment Department [hereinafter referred to as 'the H.R. & C.E. Department] was absolutely necessary under Section 34 of the H.R. & C.E. Act. Purchaser should have known the legal position and as such, he was not entitled to a Decree, much less a Decree against the temple.
(b)The first Defendant has filed additional Written Statement wherein he has specifically denied the receipt of a sum of Rs.14,500/-. He has also explained that he has received a sum of Rs.7,000/- from the plaintiff and it was only by way of sale of jewels.
Issues :-
8.The learned Trial Judge on the basis of pleadings framed the following issues :-
"a) Is plaintiff entitled to enforce the agreement dated 12.02.1983 ?
b) Is it true that on 14.07.1984, Rs.14,500/- was given ?
c) Is the first defendant liable to pay the suit amount along with other defendants ?
d) Is the fourth defendant an unnecessary party ?
e) Is the suit liable to be rejected on account of wrong schedule ?
f) Has the first defendant obtained any advance amount ? If so, to what extent ?"
Evidence :-
9.Before the trial Court, plaintiff was examined as PW-1 and Exs.A-1 to A-11 were marked on his side. PW-2, who is the father of the plaintiff was examined to prove the signature as found in Exs.A-1 to A-3. On the side of the Defendants, DW-1 was examined and Exs.B-1 to B-10 were marked.
The Trial Court Judgment :-
10.The learned Trial Judge on the basis of the pleadings and evidence adduced by the parties, arrived at a categorical conclusion that there was a valid agreement between the plaintiff and Defendants 1 to 3, whereby Defendants 1 to 3, being the trustees of the temple, agreed to sell the suit property to the plaintiff. Accordingly, the trial Court passed a Decree making the Defendants jointly and severally liable to pay the suit amount with interest at 6% p.a.
11.The judgment and decree dated 21.08.1987 is under challenge in this appeal at the instance of the fourth defendant.
Submissions :-
12.The learned Counsel for the fourth defendant/appellant contended that the Defendants 1 to 3 were the trustees of the temple. However, the trustees were not authorized to sell the temple property without the express permission of the Commissioner, H.R. & C.E. Department. Therefore, agreement entered into by the trustees without the concurrence of the Commissioner was not valid. Since the Defendants 1 to 3 received the advance consideration on their own without reference to the Commissioner, temple was not liable to repay the amount to the plaintiff and as such, decree against the fourth defendant has to be set aside.
13.None appeared on behalf of the plaintiff and Defendants 1 to 3.
The issue on this appeal :-
14.The following points arise for consideration in the present appeal :-
(a)Whether the fourth respondent was bound by the act of the trustees with regard to the assignment of temple property without the consent of the Commissioner, H.R. & C.E. Department ?
b)Whether the fourth respondent is liable to return the advance consideration to the plaintiff ?
Discussion :-
15.The property which is the subject matter of the suit admittedly belongs to the temple. Defendants 1 to 3 were the trustees of the temple. They have entered into an agreement with the plaintiff on 12.02.1983. As per the terms and conditions of the agreement, defendants 1 to 3 agreed to execute the Sale Deed in favour of the plaintiff on a total consideration of Rs.1 lakh. The property is situated in a prime locality at Saidapet. The Defendants 1 to 3 also received the advance consideration from the plaintiff on various dates. The last payment made on 14.07.1984 was disputed by the first defendant. However, this Court is not concerned about the dispute regarding the said payment as the finding with respect to the said issue remain unchallenged at the instance of the contesting Defendants 1 to 3.
Role of trustees :-
16.The trustees of the temple are functioning in a fiduciary capacity. They are the custodians of the temple property. Trustees are appointed only to manage the temple and not for its mismanagement.
17.The principles governing the sale of property owned by a minor is equally applicable to the property owned by the temple. Idol is presumed to be a minor. The exercise of statutory function under Section 8(4) of the Hindu Guardian and Minority Act, by the District Court is exercised by the Commissioner under Section 34 of the H.R. & C.E. Act with respect to the sale/lease of the temple land. Temple authorities are not expected to sell the temple property in a routine manner. There should be a decision taken on the basis of relevant materials that the sale was absolutely necessary for the temple. It is only when the sale was warranted in a given situation, the question of taking a decision to sell the property would arise. The further question regarding beneficial nature of the sale to the temple would arise only after arriving at a decision with respect to the necessity for such sale. There was no question of sale unless there was a necessity. Once it was established that there was an absolute necessity to sell the temple land or to grant a lease of the property, then the natural question would be whether the proposed sale or lease would be beneficial to the temple. The question of approaching the Commissioner under Section 34 of the H.R. & C.E. Act would arise only after satisfying the basic requirements of the necessity and the beneficial nature of the transaction. It was not permissible to enter into a secret deal with the prospective purchasers or lessees and to approach the Commissioner subsequently to achieve the hidden agenda. The requirement of sanction by the Commissioner is absolutely necessary for the disposal of the temple property or for granting lease beyond the period of five years.
Legal position :-
18.In Chenchu Rami Reddy v. Govt. of A.P., (1986) 3 SCC 391 :: AIR 1986 SC 1158, the issue before the Supreme Court was regarding a private sale of the temple property. Supreme Court indicated the manner in which the property has to be sold and in the said factual context, observed thus:-
"We cannot conclude without observing that property of such institutions or endowments must be jealously protected. It must be protected, for, a large segment of the community has beneficial interest in it (that is the raison detre of the Act itself). The authorities exercising the powers under the Act must not only be most alert and vigilant in such matters but also show awareness of the ways of the present day world as also the ugly realities of the world of today. They cannot afford to take things at their face value or make a less than the closest-and-best-attention approach to guard against all pitfalls. The approving authority must be aware that in such matters the trustees, or persons authorised to sell by private negotiations, can, in a given case, enter into a secret or invisible underhand deal or understanding with the purchasers at the cost of the concerned institution. Those who are willing to purchase by private negotiations can also bid at a public auction. Why would they feel shy or be deterred from bidding at a public auction? Why then permit sale by private negotiations which will not be visible to the public eye and may even give rise to public suspicion unless there are special reasons to justify doing so? And care must be taken to fix a reserve price after ascertaining the market value for the sake of safeguarding the interest of the endowment. With these words of caution we close the matter."
19.The plaintiff has entered into an agreement with defendants 1 to 3 knowing very well that the property absolutely belongs to the temple. Everybody is presumed to know the law of the land and nobody could plead ignorance of law. The plaintiff was interested in purchasing the temple property for a song and as such, a secret deal was entered into with the defendants 1 to 3. Before the execution of sale agreement, plaintiff should have insisted to produce the permission from the Department. However, even after the communication sent by the H.R. & C.E. Department, calling upon the temple authorities to inform the market rate of the property, plaintiff made further payments. Though the first defendant has taken a contention that the advance consideration was deposited in the temple account, there was no document produced to show any such deposit. In fact, Ex.B-6, B-7 and B-9 clearly shows that there was no entry with respect to the receipt of the said amount in the temple accounts. The further explanation given by the first defendant that the amount was spent for the purpose of renovation was without any material. The Commissioner has taken a decision to go for public sale as per Ex.B-4. The plaintiff has not participated in the public auction which is also a pointer to show that his attempt was to purchase the property in a secret deal.
20.It is true that Executive Officer took charge of the temple only subsequently and defendants 1 to 3 were in-charge of the temple as trustees during the relevant period. However, there was nothing indicated in the pleadings or in the evidence to show that there was a real necessity to sell the temple land. Similarly, there was nothing to indicate that the sale was beneficial to the temple. Defendants 1 to 3 even without taking preliminary permission from the Commissioner, straightway proceeded to sell the temple property at a throw away price. Plaintiff has also agreed to purchase the property through a private sale. When there was no evidence before the trial Court to indicate that there was necessity to sell the temple land; and that it was to benefit the temple, it cannot be said that the fourth respondent is liable to refund the amount to the plaintiff. Similarly, there is nothing on record to prove that the sale amount was deposited in the temple account and it was spent for the maintenance or renovation of the temple. Therefore, plaintiff has no cause of action against the fourth defendant.
21.The transaction in question was a secret affair between the plaintiff and the defendants 1 to 3. Though the property absolutely belongs to the temple, it was treated as a private property by defendants 1 to 3 and they have entered into an agreement to sell the land. The plaintiff, in his eagerness to purchase the property for a paltry sum, did not inquire as to whether permission of the Commissioner was granted for such sale. The temple is bound only by the lawful acts of the trustees. Trustees being custodians of the temple property are expected to protect the interest of the temple. In case they have acted detriment to the interest of the temple, third parties who lost money on account of such actions are not entitled to be indemnified by the temple.
22.While decreeing the suit against the defendants jointly and severally, the learned Trial Judge has not considered the issue as to whether the sale was for an absolute necessity or the proposed sale was beneficial to the temple. The pleadings and the evidence adduced in the matter clearly shows that the sale was not in the interest of the temple. In such circumstances, it cannot be said that the fourth defendant is liable to pay the amount to the plaintiff. Hence both the points are answered against the plaintiff and in favour of the fourth defendant.
Disposal :-
23.In the result, the judgment and decree dated 21.08.1987 is set aside in part and the fourth defendant is absolved from liability. The appeal is allowed as indicated above. No costs.
tar To The 15th Assistant City Civil Court, Madras