The appellant/plaintiff has preferred this appeal as against the Judgment and decree made in O.S.No.463 of 2000 by the learned Subordinate Judge, Tiruvarur.
2.The necessary facts of the case are set out in the plaint in brief as follows:
Well one hundred years before, the ancestor of the appellant/plaintiff has founded a Family Trust called"Sri Venkatachalapathy Dharmam Chatram". The Chatram building has been constructed by the ancestors of the appellant/plaintiff and the Chatram has been utilised as rest house for pilgrims. The wet and dry lands mentioned in the plaint schedule property situated in the village of Olimathi and Anumanthapuram in Nidamangalam Taluk have been dedicated for the maintenance of Venkatachalapathi Dharma Chatram and for performance of certain charities. The charities consist of feeding of Brahmins on Dhuvadesi day every month in the Dharma Chatram, alms to be distributed to the Brahmins and conducting water pandal charity during the summer every year and distribution of food packets to the visiting worshippers of Sri Rajagopalaswamy Temple, Mannargudi in every Dhuwadesi day once in a month. The registered agreement dated 2.5.1866 and the registered release deed dated 4.1.1923 speak of Venkatachalapathy Dharmam Trust. The agreement of the year 1866 has been entered into between the descendants of the founder of the Trust. As per the release deed of the year 1923,one Gopalakrishna Naidu, the then hereditary trustee relinquished his trusteeship , right in favour of his younger brother Ramagovindappa Naidu. The eldest brother of the said Gopalakrishna Naidu and Ramagovindappa Naidu is Ramachandra Naidu, 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 of the plaintiff.
3. By virtue of G.O.Ms.No.21 of 64, the Government issued an order and wanted to extend the provisions of T.N.Act 22/1959 to the private family trust known as Sri Venkatachalapathy Dharma Chatram. The Government as per Notification under Section 3 of the Tamil Nadu Hindu Religious and Charitable Endowment Act( hereinafter referred to as"TN H.R.& C.E.Act) has treated Sri Venkatachalapathy Dharma Chatram as a Hindu Charitable Public Trust. In pursuance of the Notification, objections have been called for and in taking over the Administration of the Trust by the government, there has been a delay. In the meanwhile, five of the descendants of the founder of the Trust viz., Jagannathan,S.Gopalakrishman, V.Gopalakrishnan, V.Raghuraman and J.Ramagovindan without any reference to the plaintiff, who is a senior in age filed an application in O.A.No.18 of 1987 under Section 63(a) of the TN H.R& C.E.Act before the second defendant praying for declaration that Sri Venkatachalapathy Dharma Chatram Trust is a Private religious Trust and not a public religious Trust within the meaning of the said Act. By order dated 15.1.1989, the second defendant has dismissed the said application observing that the Institution has already been notified as per Section 3 of the T.N.H.R &C.E.Act. The appeal to the first defendant in A.P.No.70 of 1989 has also been dismissed on 10.12.1992.
4. According to the appellant/plaintiff, the nature of charities to be performed by the Trustees only specifies that it is a private family trust solely intended for the welfare of the souls of the ancestors in the other world. The object of the Trust is the spiritual welfare of the Founder and his descendants. The respondents 1 and 2/defendants 1 and 2 have declared that Sri Venkatachalapathy Dharman Trust is a private family religious trust and it is neither a public religious trust nor a public charitable trust. The plaintiff alone is managing the private Family religious Trust and is entitled to collect rents for the trust lands under lease. The appellant/plaintiff has been paying the land revenue to the trust lands and therefore he is a person aggrieved by the order of the second respondent/second defendant in O.A.No.18 of 1987 confirming an appeal by the first respondent/first defendant in A.P.NO.70 of 1989. Therefore, the present suit is filed praying the Court to pass a decree cancelling the order of the second respondent/second defendant dated 15.1.1989 in O.A.No.18 of 1987 as confirmed in appeal by the first defendant in A.P.No.70 of 1989 dated 10.12.1982.
5. In the written statement filed by the first respondent/first defendant adopted by the second respondent/second defendant, it is specifically pleaded that on the basis of the report of the Inspector, H.R & C.E.(Administration) Department, Nedamangalam, it transpires that there has been no performance of the Trust as per dedication and no accounts have been maintained and acting on the said report, the Government has extended the provisions of Section 3 of the T.N.H.R.& C.E. Act 1959 and after complying with the procedural formalities, a Notification under Section 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 Venkatachalapathy Dharma Chatram" has been notified as a Hindu Charitable Public Trust coming within the ambit of the Act, and the five individuals purported to be the descendants of the founder of the Trust, who filed O.A.No.18 of 1987 has been dismissed by the second respondent/second defendant and an appeal being preferred in A.P.No.70 of 1989, the same has been confirmed on 10.12.1992.
6. The main plea of the respondents/defendants is that the desire of the forefathers to perform the dedication has not been complied with by the respective individuals, who are in management and therefore the object of the Trust has been defected and as a matter of fact, Arulmighu Venkatachalapathy Trust properties have been dedicated by the forefathers of the appellant/plaintiff for performance of certain charities as mentioned in the deed and for several years, the performance of the charities/functions have not been performed. The five descendants/applicants in O.A.No.18 of 1987 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 the defendants wherein it is mentioned that the suit is filed under Section 70(i) of H.R & C.E.Act and under Section 6(7) of the said Act, the Subordinate Court is having jurisdiction over the area in which the institution is situate and therefore, the Subordinate Court, 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 side of the appellant/plaintiff, no witness has been examined and Exs A1 to A3 have been marked and on the side of the respondents/defendants, D.W.1 has been examined and Exs B1 to B3 have been marked.
9.The trial Court, on an appreciation of the oral and documentary evidence and taking note of the available material evidence on record, and after analysing the same, has ultimately come to the conclusion that the appellant/plaintiff is not entitled to any relief in the suit and resultantly dismissed the same without costs.
10.Heard both the learned counsel appearing for the parties and this Court has noticed their contentions.
11.The points that arise for determination are (1) Whether the Sri Venkatachalapathy Dharmam Chatram is a public Trust or not ?
(2) Whether the plaintiff is entitled to the relief of cancellation of the order of the second respondent/second defendant dated 15.11.1989 made in O.A.No.18/87 and confirmed in appeal by the first respondent/first defendant in his order dated 10.12.1992 in A.P.No.70 of 1989?
12. Contentions, Discussions and Findings on Point Nos 1 and 2:
The learned counsel appearing for the appellant/plaintiff urges before this Court that the trial Court ought to have held that the appellant/plaintiff should have been given the further opportunity to put forth his objections for extending the Act to the trust in issue since he has not filed his objections earlier for reasons beyond his control and moreover Ex A1 and Ex A2 documents will clearly establish that the trust in question is a private trust of appellant's/plaintiff's family and therefore, the same will not come within the purview of H.R.& C.E.Act and added further the appellant/plaintiff has agitated his right as a trustee being the senior most member of the family to seek cancellation of the Government Notification and in short the trial Court has not looked into the above facts in a proper perspective which has resulted in a miscarriage of natural justice and therefore prays for allowing the appeal 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 is only a public one and that the trial Court has considered all aspects of the matter and has come to the right conclusion in dismissing the suit and therefore the same need not be disturbed..
14. In support of his contention that Venkatachalapathy Dharmam Chatram is a public one the learned Special Government Pleader(H.R & C.E) relies on the decision of this Court in The Idol of Arulmighu Thayumanaswami by Executive Officer, Rockfort, Tirchi(2001(4)CTC 260 at 264)wherein in paragraph 9, it is observed as follows:
"In this case, the A-schedule property Ex P1 Will, was endowed to the Thirunavukkarasu Madalayam for the performance of Specific service and charity in connection with the festival of Chithirai Avittam in Thayumanaswamy Temple. Therefore, what was created under the Will was definitely "specific endowment" and it has been so admitted by the 1st respondent as seen from the extract of petition referred above. The deed refers to beneficiaries of the endowment who are the devotees and poor people. The endowment is with relation to an observance of religious and charitable character' charitable' since the poor are fed. 'religious' since the idol of Thayumanaswamy is worshipped and thereafter taken in procession. For this amongst others the founder had set apart the property and had intended that the income therefrom should be utilised for their performance. Therefore, definitely a 'specific endowment" was created in favour of the petitioner and the decision reported 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, no one has been examined as a witness. However, on the side of the appellant/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 under Section 3 of the Act has been issued to the appellant/plaintiff on 20.12.1977, since the charity has not been performed and further that the appellant/plaintiff in the Nedamangalam Village has not performed the Venkatachalapathy Dharmam Charity and that appellant/plaintiff has been asked to furnish accounts and later an application has been filed under Section 63(a) of the Act by the appellant/plaintiff seeking the relief of a declaration that the said Venkatachalapathy Dharmam Charity is a private charity and that presently no charity is conducted and the charity in issue in the present case is not a private charity and it is a public charity and in the year 1866, it is mentioned by the ancestors that it is Dharma Chatram as evidenced from the records of the file.
16. In Ex A1 agreement dated 2.5.1866, five individuals have entered into an agreement and in the said document, it is categorically mentioned that the said Dharma Chatram has been constructed from the common funds of the family. Further in Ex A1 document, it is mentioned that from the income of the lands, the revenue due to the Government has to be paid and that Brahmins have to be fed on Dhuvasasi day every month in the Dharma Chatram and alms to be distributed etc., Admittedly, the original trust deed has not 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 release deed executed by G.K.Naidu have been filed the trial Court. The Dharma Chatram has been dilapidated and fallen down and the same has not been renovated. The appellant has not examined himself as a witness. No accounts have been filed in respect of Chatram income and as such the Venkatachalapathy Chatram trust is not in existence. A reading of the recitals in Ex A1 agreement shows that Dharma Chatram is intended for performance of the some Charities and that the lands in two villages have been dedicated for the maintenance of Venkatachalapathy Dharma Chatram and therefore, the said Dharma Chatram is for the benefit of the section of public viz., feeding of Brahmins, conducting water pandal, charity during the summer every year and distribution of food packets to the worshippers who visiting Sri Rajagopalaswamy Temple, Mannargudi in every Dhuvadesi day.
17. Section 6(18) of the Tamil Nadu Hindu Religious and Charitable Endowment Act refers to 'religious Institution' means math, temple or specific endowment and includes-i) a samadhi or Brindavan or any ii)other institutions established or maintained for a religious purpose etc., .. Section 6(19) of the Act refers to 'specific endowment' means any property or money endowed for the performance of any specific service or charity in a math or temple or for the performance of any other religious charity etc., In fact Section 63 of the said Act empowers the Joint Commissioner or Deputy Commissioner of the Department to decide certain disputes including whether the Institution is a religious institution or not etc.,
18. Ex A2 is the release deed executed by G.Gopalakrishna Naidu. EX B3 is the order made in O.A.No.18/87 passed by the Deputy Commissioner, H.R & C.E.Admn., Department, Thanjavur dated 5.1.1989. It is useful to refer the said order wherein it is inter alia mentioned that ' the Inspector of H.R.& C.E.,Needamangalam has submitted a detailed report dated 18.2.1988 stating that the Institution was established by the ancestors of the petitioners, that it owns an extent of 45 acres and 33 cents of Nanja lands and 4 acres and 57 cents of Punja lands situated at Olimathi Village and some extents of lands at Anumanthapuram Village etc and further that the above institution has notified by the Government in G.O.Ms.NO.2164 C.T.& R.E. dated 20.12.1977 as per Section 3 of the Tamil Nadu H.R & C.E.Act 1959' and under these circumstances, the orders of the Government cannot be questioned and therefore, the application filed as per Section 63(a) of the said Act is dismissed,in view of the fact that the Government have notified the said Institution under Section 63(3) of the Act 1959 as per G.O. referred to supra. Against the order passed by the Deputy Commissioner,H.R & C.E.(Admn) Department, the appellants have filed A.P.No.70 of 1989 before the Commissioner, H.R.& C.E.Admn. Department, Madras -34 . Ex A3 is the order passed by the first respondent /first defendant viz., The Commissioner, H.R.& C.E.Admn Department dated 10.12.1992 in A.P.No.70 of 1989 and in the said order it is inter alia held as follows:
"In the present case, prima facie the Institution in question is a public' charitable endowment' since the beneficiaries constitute a section of the Hindu Public and further the major charities to be performed also and of a religious nature as such the notification of the trust by the Government cannot be questioned."
and resultantly the appeal filed by the appellants against the order of the Deputy Commissioner,H.R.& C.E.Admn. Department in O.A.No.18/87 dated 5.1.1990 fails and stands dismissed under Section 69(1) of the Act.
19. Coming to the next aspect of five descendants of the founder of the trust have not been arrayed as parties to the present case, it is to be pointed out their non-inclusion in the suit as parties is not fatal since this Court opines that the subject matter of the suit/issues can be adjudicated effectively and efficaciously in complete and comprehensive fashion without their presence and answered accordingly . On a careful consideration of respective contentions, and on an appreciation of oral and documentary evidence adduced on both sides, this Court is of the considered view that Sri Venkatachalapathy Dharma Chatram is not a private religious trust and inasmuch as there is a stipulation in the registered deed dated 5.1.1866 that the charities are 'Dharmam"Kattalai' at Chatram and giving of aids required by Brahmins, water pandal charity and Dhuwadesi Kattalai at Arulmighu Rajagopalaswamy Temple at Mannargudi Town and further Ex A1 agreement dated 2.5.1866, the properties are set apart for religious trust, the same is not a private property or a private secular trust property and all these things will be clinchingly, cogently and convincingly point out that the trust in issue is only a public one since the beneficiaries are from the section of Hindu Public and charities to be performed or all religious in character and therefore, the orders passed by the Deputy Commissioner and Commissioner are not liable to be interfered with by this Court sitting in appeal and resultantly the appeal has no merits and the same is dismissed without costs.
20. In fine, the appeal is dismissed and the Judgment and decree made in O.S.No.463 of 2000 passed by the learned Subordinate Judge, Tiruvarur are affirmed. However, considering the facts and circumstances of the case, there shall be no order as to costs.
sg To The Subordinate Judge, Tiruvarur