AI Structured Summary
Not yet generated for this judgment
Judgment
R. Banumathi, J.—Being aggrieved by the dismissal of application in A. No. 594 of 2005 in C.S. No. 709 of 1948 refusing to appoint the
Appellants as Trustees of ""Thiruvengada Mudaliar Charities"", Appellants have preferred this appeal.
Creation of ""Thiruvengada Mudaliar Charities"" and Scheme decree in C.S. No. 709 of 1948 [06.10.1950] - Thiruvengada Mudaliar, a pious
person had created an endowment by a settlement deed dated 31.05.1944. As per the settlement deed dated 31.05.1944, from the income of the
properties endowed, daily poojas should be performed in Chidambaraswamy Madam, Sundara Vinayagar temple and special poojas to be
performed on Krithigai, New Moon and Full Moon days. During the life time of Thiruvengada Mudaliar, he filed C.S. No. 709 of 1948 for framing
a Scheme and also seeking permission of the Court for sale of certain item of properties and other reliefs. The High Court, Madras framed Scheme
decree in C.S. No. 709 of 1948 dated 06.10.1950 for the management and administration of the above Trust properties by the founder and after
his life time by a Board of Trustees as per the provisions of the Scheme.
Salient features of the Trust:
Thiruvengada Mudaliar who is the founder of the Charities shall be in management of the same as a sole Trustee during his life time.
After the life time of founder Trustee, the Charities shall be managed by a body of three Trustees. Trustees will be appointed by Court.
After the life time of founder Trustee, first set of Trustees shall be (i) Nilambal Ammal, the second wife of the founder Trustee; (ii)
Balanandaswami, the 2nd Plaintiff in C.S. No. 709 of 1948; (iii) Ranganayaki Ammal of Vadalur. In filling up of the Trustees, Court shall give
preference to (i) the sons of the founder by his second wife and their descendants; (ii) the sons of the founder through first wife and their
descendants; (iii) other agnates of the founder. Of the body of the Trustees, the aforesaid Nilambal Ammal shall be the Managing Trustee for her
life time. After her, the eldest of the Trustees from the founder''s family shall be the Managing Trustee.
Trustees shall administer the endowment and as per the Scheme decree any of the Trustees shall be at liberty to apply to Court for necessary
direction from time to time in respect of management of the Charities.
(Underlining added)
The genealogy of late Thiruvengada Mudaliar is as under:
Taking control of endowment by Tamil Nadu HR & CE - Appointment of Fit Person - After the death of Nilambal Ammal, K.T.
Ramachandran and his second wife''s son Mannappan took over the management in administering the properties. Since there was mismanagement
in administering the properties, ""Thiruvengada Mudaliar Charities"" was brought under the control of Tamil Nadu Hindu Religious and Charitable
Endowment [HR & CE] Department and properties of the said Temple and Madam have been brought under the record viz., 1 to 15 Registers
maintained as per the provisions of Tamil Nadu Hindu Religious and Charitable Endowments Act and it was approved by the Department on
10.07.1979. Since there was mismanagement of the Trust properties, by Proceedings Rc.1870/88/A3 dated 10.03.1988, the Executive Officer of
Arulmighu Renganathsaswamy temple, Mint, Chennai was appointed as Fit Person. One Arumugham who was in the administration of the temple
handed over the charge to the Fit Person on 18.01.1990 and as such Fit Person is functioning since 1990.
Fit Person has filed number of suits challenging the alienations made by K.T. Ramachandran and Mannappan. After the lapse of 17 years, some
of the descendants of Thiruvengada Mudaliar have filed application A. No. 594 of 2005 in the Scheme suit [C.S. No. 709 of 1948] to appoint
them as Trustees to take charge and administer ""Thiruvengada Mudaliar Charities"" as per the Scheme decree dated 06.10.1950.
Case of Appellants is that K.T. Ramachandran and Mannappan were mismanaging the Trust properties and misappropriated the income
derived from the Trust properties. According to Appellants, HR & CE Department ought not to have appointed the Fit Person in derogation of the
Scheme decree framed in C.S. No. 709 of 1948, when the legal heirs and descendants of late Thiruvengada Mudaliar are available to be
appointed as Trustees. Appellants who are the descendants of late Thiruvengada Mudaliar have no notice of appointment of Fit Person. Alleging
that Fit Person has no locus standi to represent the Trust and administer the properties and that the said appointment of Fit Person is totally in
derogation with the Scheme of Sri Chidambaraswamy Madam, Appellants prayed to appoint them as Trustees of ""Thiruvengada Mudaliar
Charities"".
Opposing the application, HR & CE Department filed counter stating that Fit Person was appointed on 10.03.1988 and the same cannot be
questioned after a period of 17 years. It was further stated that after the enactment of Tamil Nadu HR & CE Act, 1959, power is vested with the
Joint Commissioner to modify a Scheme settled in any Court in the interest of proper administration of Institution and therefore, the application is
not maintainable.
Upon consideration of the rival contentions, learned single Judge held that Fit Person was appointed by HR & CE Department as early as on
10.03.1988 and that Appellants were mute spectators to the administration of the Trust properties by the Fit Person and their conduct will amount
to acquiescing the action taken by the HR & CE Department. Learned Judge further held that since there is a specific endowment by the founder
of the Trust, provisions of Tamil Nadu HR & CE Act will apply and Sections 63, 64 and 118 of the Act will hold the field and that as per Section
118(2)(b)(ii), Schemes framed originally by the High Court the competent Authorities under the Act are empowered to modify the Scheme.
Observing that application [A. No. 594 of 2005] is not maintainable and that Appellants have to approach the Authorities under the Act, learned
Judge dismissed the application.
Challenging the impugned order, Mr. V. Raghavachari, learned counsel for Appellants has contended that in Clause 18 of the Scheme decree
there is a specific direction to the Trustees to approach the Court for management of the property and while so, appointment of Fit Person by HR
& CE Department is in derogation of the Scheme decree. It was further contended that the Commissioner, HR & CE Department had no
jurisdiction to appoint a Fit Person and Court could incidentally go into the competence of the Commissioner and declare that the orders made
without jurisdiction as nullity. It was further argued that Arulmighu Avathutha Chidambaraswamy Madam and Sundara Vinayagar Devasthanam do
not fall within the purview of Tamil Nadu HR & CE Act and the order of appointment of Fit Person is null and void.
Mr. M. Venugopal, learned Additional Government Pleader [CS] has contended that even though originally a Scheme was framed by the High
Court in 1948, after the enactment of Tamil Nadu HR & CE Act, 1959 u/s 118(2)(b)(ii) of the Act, power of modification is now vested with the
statutory Authorities under the Act. Learned Additional Government Pleader would further submit that u/s 64 of the Act framing of a Scheme of
administration and modification of Scheme framed by the Court including the High Court is vested with the concerned Joint Commissioner and the
above position is also confirmed by the Hon''ble Supreme Court in T. Lakshmikumara Thathachariar Vs. Commissioner, H.R.C.E. and Others,
and in view of the above, application filed by the Appellants in the High Court is not maintainable and the learned Judge has rightly dismissed the
application.
Admittedly, for management and administration of the Trust properties and performance of poojas and Charities, High Court has framed
Scheme decree in C.S. No. 709 of 1948 dated 06.10.1950. As per the Scheme decree, after the life time of founder Trustee-Thiruvengada
Mudaliar, his second wife Nilambal Ammal shall be the Managing Trustee for her life time. Even according to the Appellants, K.T. Ramachandran,
son of Thiruvengada Mudaliar through his second wife Nilambal Ammal and Mannappan, son of K.T. Ramachandran were in administration of the
Trust properties; however, Appellants have alleged that K.T. Ramachandran and Mannappan have mismanaged the Trust properties.
Tamil Nadu HR & CE Act 22 of 1959 came into force with effect from 19.11.1959. As per Section 1 of the Act, it applies to all ""Hindu
Public Religious Institutions"" and ""Endowments"". Since there was mismanagement of ""Thiruvengada Mudaliar Charities"", the temple and Madam
have been brought under the record viz., 1 to 15 Registers maintained as per the provisions of Tamil Nadu HR & CE Act and it was approved by
the department on 10.07.1979. As pointed out earlier, in view of the mismanagement of the Trust properties and on the basis of the policy decision
taken by the Government to appoint Fit Person to all Institutions under the control of HR & CE Department, the Executive Officer of Arulmighu
Renganathaswamy temple, Mint, Chennai was appointed as Fit Person in the place of Trustees for Arulmighu Avathutha Chidambaraswamy
Madam and Sundara Vinayagar Devasthanam by the Assistant Commissioner, HR & CE Department u/s 49(1) of the Act by Proceedings
Rc.1870/88/A3 dated 10.03.1988.
Even though Appellants have alleged that Fit Person had no right to take over the Trust properties, Appellants have not challenged the
appointment of Fit Person for more than 17 years. Appellants have thus acquiesced in the act of HR & CE Department in appointing the Fit
Person.
Learned counsel for Appellants mainly contended that when the High Court has framed the Scheme, HR & CE Department ought not to have
appointed the Fit Person in derogation of the Scheme decree framed by the High Court when the legal heirs and descendants of Thiruvengada
Mudaliar are available to be appointed as Trustees of ""Thiruvengada Mudaliar Charities"". It was further submitted that the competence of the
Commissioner to appoint Fit Person in derogation of the Scheme decree could be incidentally gone into by the High Court and declare the
appointment of Fit Person as nullity. Contending that the order passed by the Authorities without jurisdiction can be declared as invalid, learned
counsel for Appellants placed reliance upon Karnal Improvement Trust, Karnal Vs. Parkash Wanti (Smt) (Dead) and Another, and Badridass
Kanhaiyalal and Another Vs. Appellate Tribunal of State Transport Authority, Rajasthan and Others, . The above contention cannot be
countenanced. Further, the decisions relied on by the learned counsel for the Appellants are of no assistance to the case on hand.
Even though originally Scheme was framed by the High Court in C.S. No. 709 of 1948 dated 06.10.1950, after the enactment of Tamil Nadu
HR & CE Act, 1959 and as per Section 118(2)(b)(ii) of the Act, the modification or cancellation power is now vested with the statutory
Authorities under the Act.
Section 118(2)(b)(ii) of Tamil Nadu HR & CE Act, 1959 reads as under:
all powers conferred and all duties imposed by such scheme on any Court or Judge or any other person or body of persons not being a trustee or
trustees or an honorary officer or servant of the religious institution or endowment, shall be exercised and discharged by the Commissioner, the
[Joint Commissioner or Deputy Commissioner] or the Assistant Commissioner, as the case may be, in accordance with the provisions of this Act.
After Tamil Nadu HR & CE Act 19 of 1951 came into force, the Court cannot frame any Scheme in respect of administration of ""religious charity
or ""religious endowment"". The Scheme framed are settled by Court is not outside the purview of Section 118 of Tamil Nadu HR & CE Act.
As per Section 64 of the Act, framing of Scheme of administration or modification of Scheme is vested with the concerned Joint Commissioner
or Deputy Commissioner. The above position is also confirmed by the Hon''ble Supreme Court in T. Lakshmikumara Thathachariar Vs.
Commissioner, H.R.C.E. and Others, . In the said case, a Scheme for the administration and trusteeship of Devarajaswamy Temple at
Kancheepuram was originally settled u/s 92 of CPC in 1909 by the Madras High Court, although the application for that purpose had been filed
u/s 539 of CPC, 1882. The said scheme was subsequently modified under the Madras Hindu Religious Endowments Act, 1926 by the Madras
High Court in 1941. In the year 1982, the Deputy Commissioner of Hindu Religious and Charitable Endowments initiated proceedings u/s 64(5) of
the T.N. Hindu Religious and Charitable Endowments Act, 1959 for modification of the scheme settled by the Madras High Court in 1941. The
appellant therein contended that the Deputy Commissioner had no jurisdiction u/s 64(5) of the Act to modify a scheme originally framed u/s 92
CPC by the Madras High Court.
In the said case, the Supreme Court held that power of Deputy Commissioner to modify a scheme extends to modification of a scheme framed
u/s 92 of CPC, 1908 by the High Court also. In Paragraph (16), the Supreme Court held as under:
16....The schemes which were framed by the courts under earlier legislation were schemes which were capable of modification or cancellation in
accordance with law even under the legislation under which such schemes were framed. While repealing the earlier legislation when the new
legislation came into force, the power to modify and cancel such schemes was expressly transferred under the new legislation to the authorities
specified therein. ...
Referring to the above decision T. Lakshmikumara Thathachariar Vs. Commissioner, H.R.C.E. and Others, , the learned Judge has rightly held
that application [A. No. 594 of 2005] filed by the Appellants in C.S. No. 709 of 1948 is not maintainable.
In M. Krishnaraju Chetty Vs. The Commissioner of Hindu Religious and Charitable Endowments Board, , the Division Bench of this Court
held that the words ""any Court"" employed in Section 118(2)(b)(ii) will include the High Court and the words ""any judge"" will include a judge of the
High Court. By virtue of the above said section 118(2)(b)(ii), the burden and responsibility of Civil Courts are taken away and they are passed on
to the Authorities functioning under the Tamil Nadu HR & CE Act, for the specific purpose of governing and administering the religious and
charitable endowments.
Learned counsel for Appellants then contended that as per the Scheme decree, preference ought to have been given to the descendants of
founder Trustee and while so, appointment of Fit Person in derogation to the Scheme decree framed is a nullity. It was further argued that before
appointment of Fit Person, no notice was given to the Appellants. As rightly pointed out by the learned Judge, Appellants have chosen to raise
objection after 17 years of appointment of Fit Person. It is quite unbelievable that Appellants were not put on notice about the appointment of Fit
Person way back in 1988.
Section 52 of the Act deals with non-hereditary Trustees holding office on the date of commencement of the Act. Section 53 of the Act deals
with power to suspend, remove or dismiss the Trustees. Section 54 of the Act deals with filling up of vacancies in the offices of hereditary Trustee.
As per Section 54 (3) where there is mismanagement, the Joint Commissioner or the Deputy Commissioner may appoint a Fit Person to perform
the functions of the Trustees of the Institution. As per Section 54 (4), any person aggrieved by an order of the Joint Commissioner/Deputy
Commissioner as the case may be, made within one month from the date of receipt of the order by him, appeal against the order to the
Commissioner. As rightly held by the learned Judge, if the Appellants are aggrieved by the order of appointment of Fit Person, the Appellants
ought to have worked out their remedy before the competent Authority of HR & CE Department. Propriety of the order of appointment of Fit
Person cannot be gone into by this Court.
Learned counsel for Appellants contended that distribution of conjee (gruel) to the poor to more than 50 persons daily is in the nature of
kattalai - charitable endowment"" and not a ""religious charity"" or ""religious endowment"" within the meaning of Sections 6(16) and 6(17) of Tamil
Nadu HR & CE Act. It was further argued that the Scheme decree in C.S. No. 709 of 1948 does not contemplate ""religious charity"" or ""religious
endowment"" and it is only a ""public charity"" and therefore, the provisions of Tamil Nadu HR & CE Act are not applicable and appointment of Fit
Person by the HR & CE Department is illegal and non-est. Learned counsel for Appellants would further submit that clauses ""c"" and ""d"" of
Schedule-II in the Scheme decree are not ""religious charity"" or ""religious endowment"" within the meaning of Section 6(16) and 6(17) of the Act.
Learned Additional Government Pleader has submitted that dedication of properties is specific i.e. for the purpose of pooja and Naivedya for
Sundara Vinayagar temple and special pooja on Krithigai, New Moon and Full Noon days and distribution of food to the pilgrims on Thaipoosam
day every year at Vadalur in two Ashrams, would certainly make the Trust as a ""religious charity"" and therefore, the provisions off Tamil Nadu HR
& CE Act are applicable.
Section 6(16) of HR & CE Act defines ""religious charity"" as under:
religious charity"" means a public charity associated with a Hindu festival or observance of a religious character, whether it be connected with or
math or temple or not.
Section 6(17) of HR & CE Act defines ""religious endowment"" as under:
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. Explanation 1....
According to the definition of ""religious charity"", there must be a public charity and that charity must be associated with a Hindu festival or
observance of a religious character. In Kalia Pillai (died) and Others Vs. Kathayee ammal Dharmam (Charities) and Others, , the Division Bench
of this Court held that "".... a religious charity which is a public charity associated with a Hindu festival or observance of a religious character. It may
or may not be connected with a math or temple"".
In A. Semalai Gounder and Others Vs. The Commissioner, Hindu Religious and Charitable Endowments and Another, , it has been held that
performing Annadhanam on Thaipoosam day in a private place is a religious endowment"". In (2000) 3 MLJ 23 [The Commissioner, H.R. & C.E.,
Madras v. C.V. Sudharsan and another], the Division Bench of this Court held that ""the founder of the Charitable had created a specific
endowment for the performance of the ""Thatiarchanai Service"" to ""Desanthris"" in ""Perumal Temples"" in Chennai and the said endowment will
definitely comes within the purview of the Act. It is not a private trust....
Whether the ""religious endowment"" is a private or public has to be examined on the proved facts of each cases. In the light of the above well
settled principles, objects of the Trust in the case on hand has to be examined. The objects of the Trust as per the Scheme decree indicated in
Schedule-II read as under:
Maintenance and upkeep of Sri Chidambaraswamy Madam; daily pooja and Naivedya and special pooja, Naivedya and Aradhana on Krithigai,
New Moon days every month and other festival days of the year fixed by the Trustees and the Guru pooja once in every year for Sri
Chindabaraswamy Madam.
Daily pooja and Naivedya for Sri Sundara Vinayagar and Navagrahams in Sri Sundara Vinayagar temple and special pooja, Naivedya and
Aradhana on Krithigai, New Moon and Full Moon days and other festival days of the year fixed by the Trustees.
Distribution of Conjee (gruel) to the poor for not more than 50 persons daily at No. 8, Ammaiyappa Mudaly street, Old Washermanpet, Chennai
or at Chidambaraswamy Madam.
Distribution of food to the pilgrims and the poor on the Thai Poosam day every year at Vadalur in the two Ashrams to be constructed on the land
situated in Parvathipuram village, Cuddalore Taluk and the Ashrams have to be properly maintained.
By reading of Schedule-II of the Scheme decree, it is clear that daily ""Pooja and Naivedya"" for Sundara Vinayagar and Navagrahams are to be
performed and also special Pooja and Naivedya on special occasions like Krithigai, New Moon and Full Moon days. Distribution of food to the
pilgrims and poor on Thaipoosam every year at Vadalur in two Ashrams is also one of the object of the Trust. Celebration of pooja coupled with
distribution of conjee (gruel) to the poor and also feeding the pilgrims and poor on Thaipoosam day clearly shows that it is ""religious charity"" and
religious endowment"" certainly attracting the provisions of Tamil Nadu HR & CE Act, 1959.
It is a specific endowment as the properties are dedicated for the purpose of special pooja in Sundara Vinayagar temple and Naivedya thereon
and also on special occasions and also distribution of food to the pilgrims on Thaipoosam day at Vadalur. In 1999 MLJ 506 [The Commissioner,
HR & CE (A) Department, Madras v. The entire body of Vellala Samudhayam in Nadutheru, Parakkai, Parakkai village Agastheeswaram Taluk,
Kanyakumari District represented by its Trustees and others], it has been held that ""endowment mainly created for doing public charities connected
with temples especially during Panguni festival is a specific endowment"".
Laying emphasis upon the ""guru pooja"" to be celebrated once in a year for Sri Chidambaraswamy Madam, the learned counsel for Appellants
contended that the word ""samathi"" was introduced in the definition of Section 6(18) - ""religious institution"" and ""samathi"" being situated in the
property, provisions of HR & CE Act were not then applicable and therefore in 1988, the Commissioner, HR & CE ought not to have appointed
the Fit Person.
Of course, the word ""samathi"" was introduced in the definition of Section 6(18) by Act 10 of 2003 and prior to 2003, the word ""samathi"" was
not there in Section 6(18) of the Act. By Amendment Act 4 of 2008, again the word ""samathi"" was deleted from Section 6(18). Contention of
Appellants is that since ""guru pooja"" is to be performed for Sri Chidambarasamy in Chidambarasamy Madam, the same would not fall within the
purview of Tamil Nadu HR & CE Act.
The above contention does not merit acceptance. Firstly, the plea that Sri Chidambaraswamy Madam also contain ""samathi"" and inapplicability
of provisions of Tamil Nadu HR & CE Act were not at all pleaded either in the application or in the grounds of appeal. In any event considering
the merits of the matter, ""samathi"" is attached with the ""Madam"". Main object is performance of ""pooja"" and ""religious charitable endowment"". The
properties were dedicated mainly for the purpose of pooja, Naivedya for Sundara Vinayagar and Navagrahams daily and special pooja on special
occasions and feeding the poor. In our considered view, performance of guru pooja once in a year is only incidental to the temple and the ""religious
endowment"".
K.T. Ramachandran and Mannappan have executed various sale deeds viz., (i) Sale deed dated 24.05.1990 infavour of N.A. Gopalapandian
in respect of Door No. 24/27 to 24/31 measuring an extent of 1650 sq. ft.; (ii) Sale deed dated 17.02.1992 infavour of K.Shanmugam in respect
of Door No. 1/21, 2/21 measuring an extent of 2541 sq.ft.; (iii) Sale deed dated 24.05.1990 infavour of N.A. Mohan Rajkumar in respect of
Door No. 2/2, 24/22, 24/23 measuring an extent of 1151 sq. ft.; (iv) Sale deed dated 17.02.1992 infavour of Thirumalai in respect of Door No.
24/21 of Mannappa Mudali street measuring an extent of 875 sq. ft. and (v) Sale deed dated 17.02.1992 infavour of Kalavathy in respect of Door
No. 1/21, 2/21 measuring an extent of 508 sq. ft.
After the Fit Person took charge from the person in management in 1990, challenging the said sale deeds, Fit Person filed O.S. Nos. 7721 of
1994; 7722 of 1994; 3667 of 1997; 3668 of 1997 and 4856 of 1997 on the file of City Civil Court, Chennai to set aside the sale deeds and to
restore the property to the Trust. Challenging the sale deed dated 17.02.1992 executed infavour of Thirumalai, Fit Person has also filed the suit
O.S. No. 7723 of 1994. By the judgment dated 31.01.2005, V Assistant Judge, City Civil Court, Chennai has dismissed the said suit.
Laying emphasis upon the judgment in O.S. No. 7723 of 1994, learned counsel for Appellants contended that in the said judgment trial Court
recorded the finding that provisions of Tamil Nadu HR & CE Act would not apply to the suit property. In this regard, the learned Additional
Government Pleader has submitted that the said judgment was challenged before the Appellate Court and the first Appellate Court has reversed
the judgment of the trial Court. In this regard, the learned Additional Government Pleader has also produced the judgment of the first Appellate
Court in A.S. Nos. 318 and 324 of 2006 which arose out of the dismissal of similar suit O.S. No. 2173 of 1994 in which the Fit Person has
challenged the sale deed executed infavour of K.Shanmugam dated 23.08.1991. In view of allowing of the appeals by the first Appellate Court, no
weight could be attached to the findings in the judgment of the trial Court in O.S. No. 7723 of 1994.
Since the Trust is a ""religious endowment"", provisions of Tamil Nadu HR & CE Act is well applicable. As pointed out by the learned Judge
only the provisions of Tamil Nadu HR & CE Act are applicable and in view of Section 118(2)(b)(ii) of the Act, the application [A. No. 594 of
2005] filed by the Appellant is not maintainable. Application filed by the Appellants after the lapse of 17 years is nothing but vexatious one and the
learned Judge has rightly dismissed the application. We do not find any reason warranting interference with the order of the learned Judge.
In the result, the appeal is dismissed. Consequently, connected M.P. is closed. No costs.