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Judgment
K.K. Sasidharan, J.—Challenge in this Civil Revision Petition is to the order dated 04.02.2008 in I.A. No. 1180 of 2003 in Trust O.P. No.
3 of 1998 on the file of the learned Principal District Judge, Trichirappalli, whereby and where under, the learned Principal District Judge was
pleased to reject the review petition filed by the Petitioners to review the order dated 18.06.2001 in Trust O.P. No. 3 of 1998.
BACKGROUND FACTS:
The Respondents have instituted a proceeding before the learned District Judge, Trichirappalli in Trust O.P. No. 3 of 1998 praying for an order
to remove the charge for the performance of petition schedule charities viz., Upayam and Dharmam from the income of the ''A'' schedule property
and impose the charge on ''B'' schedule property.
The Respondents in their Original Proceeding contended that the property described in schedule ''A'' was purchased by one Veeramalai Pillai as
per document dated 03.05.1901. Subsequently, there was a partition in the family of Veeramalai Pillai as per document dated 21.01.1921. In the
said partition, a charge has been created over the income from the ''A'' schedule property for the performance of Arthajama Kattalai Upayam in
Arulmighu Boologanathaswami Temple at Tiruchirappalli and also for the performance of Thannirpandal Dharmam at the time of Chitra Festival in
Srirangam Temple. There was a recital in the partition deed earmarking a sum of Rs. 105/- for the Upayam and Dharmam and another sum of Rs.
100/- was set apart by way of remuneration. The remaining income from the property was to be shared among the parties to the partition deed
after meeting the expenses for maintenance.
There was a further partition in the family consequent to the death of Veeramalai Pillai and in the said partition made on 31.05.1925, the subject
property was allotted to the share of Natesan Pillai as per schedule ''E''. There was a charge in the said property for the purpose of performance of
Upayam and Thanneer Panthal Dharmam. Subsequently, Natesan Pillai executed a registered Will dated 15.04.1963, in and by which, the
Respondents got the property. The Will contains a stipulation that there will be a charge on ''A'' schedule property for the purpose of doing
charities.
According to the Respondents, due to rapid urbanisation, residential colonies have come up. Therefore, it was not possible to irrigate the lands
and as such, they want to remove the charge from the income of the property described in ''A'' schedule and impose it on the property described in
''B'' schedule.
The Petitioners in their objection filed before the learned District Judge, opposed the prayer. According to the Petitioners, the charges
mentioned in the documents were connected with the temple and as such, it would come within the purview of Hindu Religious and Charitable
Endowments Act. Therefore, the Petitioners submitted that the civil Court has no jurisdiction to take up the matter.
VIEWS OF THE TRIAL JUDGE:
The learned District Judge framed two issues for determination. The first issue pertains to the nature of the trust and the other was in respect of
the prayer to remove the charge.
The learned District Judge found that the partition deed as well as the Will proceeds as if the endowment was not a public one and it was purely
a private endowment. The intention of the creator of the trust was to treat it as a private endowment.
The learned District Judge, on a careful consideration of the pleadings and documents, arrived at a factual conclusion that it was a private
endowment and not a public one requiring sanction of the authorities concerned. Accordingly, the first issue was answered holding it as a private
endowment. The second issue was answered against the Respondents and accordingly, the trust O.P. was dismissed.
The order dated 18.06.2001 in Trust O.P. No. 3 of 1998 was challenged by the Petitioners before the High Court in C.R.P. No. 1809 of
2002. While dismissing the Civil Revision Petition, by order dated 03.01.2003, this Court observed that it was open to the Petitioners to approach
the learned District Judge by filing a petition to review. Accordingly, the Petitioners have filed a review petition.
The learned District Judge considered the review petition and found that there was no error apparent on the face of the record so as to pass an
order to review. Accordingly, the review petition was dismissed. Feeling aggrieved by the said order, the Petitioners are before this Court.
SUBMISSIONS:
The learned Counsel for the Petitioners contended that there was a specific endowment of property for performance of specific service and
charity in connection with the festival of the temples and as such, the endowment has to be treated as public in nature. According to the learned
Counsel, the religious endowment mentioned in the documents gives a clear indication that it was a charitable endowment and they were connected
with the temples. Therefore, the learned District Judge was not justified in his conclusion that the endowment was nothing but a private endowment.
The learned Counsel for the Respondents submitted that there was a clear recital both in the partition deed as well as in the Will to the effect
that the endowment was private in nature. According to the counsel, the beneficiaries were given the right to take the income from the property
after meeting the expenses for the temples. Therefore, it was only a private endowment and it has nothing to do with the public. Therefore, the
learned trial Judge was perfectly correct in answering the issue No. 1 in favour of the Respondents.
ANALYSIS:
The subject property was originally part of a larger extent of 18 acres. It was purchased by one Veeramalai Pillai by virtue of a registered sale
deed dated 03.05.1901. There was a partition in the family of Veeramalai Pillai as per registered partition deed dated 21.01.1921. The said
Veeramalai Pillai and his children Sadasivam Pillai, Vaithialingam Pillai, Nagarathinam Pillai, Nallasami Pillai and Natesan Pillai were the parties to
the document. The property which is the subject matter of this Civil Revision Petition was shown as ''A'' schedule. There was a charge created on
the said property for the purpose of performance of Arthajama Kattalai Upayam in Arulmighu Boologanathaswami Temple in Trichirappalli. There
was a further charge to perform the Thannirpandal Dharmam at the time of Chitra festival in Srirangam temple. A sum of Rs. 105/- was set apart
for the Upayam and Dharmam, besides a sum of Rs. 100/- towards payment of remuneration. There was a specific averment in the document that
the remaining income has to be shared by the parties to the partition deed after meeting the maintenance expenses.
It is also a matter of record that originally Veeramalai Pillai was the Manager. There was an agreement that after his lifetime, the performance
of Arthajama Kattalai Upayam and Thannirpandal Dharmam has to be performed by Vaithialingam Pillai and after three years, the management
should be done by way of rotation.
Subsequently, Veeramalai Pillai died and his children Sadasivam Pillai, Vaithialingam Pillai, Nagarathinam Pillai, Nallasami Pillai and Natesan
Pillai entered into a deed of partition, in and by which, the subject property was allotted to the share of Natesan Pillai as ''E'' schedule property.
The partition deed was registered on 31.05.1925. A charge was created on ''E'' schedule property. Subsequently, Natesan Pillai executed a
registered Will dated 15.04.1963 bequeathing the property in favour of the Respondents. The Will also contains a stipulation that the beneficiaries
have to perform the Arthajama Kattalai Upayam and Thannirpandal Dharmam and after meeting the expenses, if there is any balance, it could be
taken by the Respondents. The registered partition deed dated 21.01.1921 and the registered will dated 15.04.1963 contain a clear averment that
the endowment was private in nature. The settlers of the trust have clearly stated that the endowment will not be treated as public. This is evident
from the fact that the beneficiaries were given the right to share the income after meeting the expenses for performing the Arthajama Kattalai
Upayam and Thannirpandal Dharmam.
The core issue is whether the performance of religious function would constitute the endowment as a public one, even though the settlers have
declared the endowment as a private one.
The learned Counsel for the Petitioners placed reliance on a decision in H.R. Endowments v. Marutha Naikar reported in AIR 1945 Mad 368
wherein it was held that a service may be secular and still it will be a religious endowment, if such charitable service is connected with the temple.
In Sri La Sri Subramania Desika Gnanasambanda Pandara Sannathi, Hereditary trustee of the Rajan Kattalai Sri Thyagarajaswami Koil Vs.
The State of Madras and Another, while considering the legal position of a Dharmakarta of a temple, a Division Bench of this Court observed that
the property covered by the endowment in the absence of the terms of the foundation to the contrary effect can be regarded as vesting only in the
deity. The trustee has a mere right to manage. The observation reads thus:
Whether it be the case of Dharmakartha of a temple or trustee of a kattalai established for the purpose of performance of a vital part of a ritual in a
temple, the property covered by the endowment (in the absence of the terms of the foundation to the contrary effect) can be regarded as vesting
only in the deity. The trustee has a mere right to manage. He is, however, in the position of a trustee as it is his duty to see to the proper application
of the funds to the objects of the trust; he will further be accountable as such. The office of a trustee of a temple or endowment though it carries
with it no material benefit to the incumbent is highly prized by reason of the prestige it carries and the deeply rooted belief in the Hindu that
performance of such duties without a monetary or like benefit would secure a spiritual benefit.
The learned Counsel for the Respondents placed reliance on a judgment of the Supreme Court in M. Dasaratharami Reddi v.D. Subba Rao
AIR 1957 SC 797 in support of her contention that if the dedication is partial, the property will retain its original private and secular character.
In M. Dasaratharami Reddi''s case cited supra, the Supreme Court considered the question as to whether the properties in suit are the subject
matter of public charitable trust or are merely burdened or charged with the obligation in favour of the specified charities. The Appellants before
the Supreme Court contended that they are in possession of a substantial portion of the suit properties as alienees and the properties in their hands
were subject to the charge in favour of the charities. However, they denied that the said properties were the subject matter of a charitable trust.
While considering this issue, the Supreme Court examined the question as to whether the obligation arising out of the trust is annexed to the
property that fell to the share of a person. After considering the principles of Hindu Law applicable to the consideration of questions of dedication
of property to charity, the Supreme Court observed thus:
The principles of Hindu law applicable to the consideration of questions of dedication of property to charity are well settled. Dedication to
charity need not necessarily be by instrument or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and user
of the property which show the extinction of the private secular character of the property and its complete dedication to charity. On the other hand,
in many cases Courts have to deal with grants or gifts showing dedication of property to charity.
Now it is clear that dedication of a property to religious or charitable purposes may be either complete or partial. If the dedication is complete, a
trust in favour of public religious charity is created. If the dedication is partial, a trust in favour of the charity is not created but a charge in favour of
the charity is attached to, and follows, the property which retains its original private and secular character. Whether or not dedication is complete
would naturally be a question of fact to be determined in each case in the light of the material terms used in the document.
In such cases it is always a matter of ascertaining the true intention of the parties; it is obvious that such intention must be gathered on a fair and
reasonable construction of the document considered as a whole. The use of the word ""trust"" or ""trustee"" is no doubt of some help in determining
such intention; but the mere use of such words cannot be treated as decisive of the matter.
Is the private title over the property intended to be completely extinguished? Is the title in regard to the property intended to be completely
transferred to the charity? The answer to these questions can be found not by concentrating on the significance of the use of the word ""trustee"" or
trust"" alone but by gathering the true intent of the document considered as a whole. In some cases where documents purport to dedicate property
in favour of public charity, provision is made for the maintenance of the worshipper who may be a member of the family of the original owner of the
property himself and in such cases the question often arises whether the provision for the maintenance of the manager or the worshipper from the
income of the property indicates an intention that the property should retain its original character and should merely be burdened with an obligation
in favour of the charity.
If the income of the property is substantially intended to be used for the purpose of the charity and only an insignificant and minor portion of it is
allowed to be used for the maintenance of the worshipper or the manager, it may be possible to take the view that dedication is complete. If, on
the other hand, for the maintenance of public charity a minor portion of the income is expected or required to be used and a substantial surplus is
left in the hands of the manager or worshipper for his own private purposes, it would be difficult to accept the theory of complete dedication.
It is naturally difficult to lay down a general rule for the solution of the problem. Each case must be considered on its facts and the intention of the
parties must be determined on reading the document as a whole.
The Supreme Court in M. Dasaratharami Reddi''s case cited supra clearly indicated the factors to be considered to decide the question as to
whether a particular dedication of property to religious or charitable purpose is public or private in nature.
The recitals in the partition deed as well as the Will clearly gives an indication that it was a private endowment. The beneficiaries were directed
to meet the expenditure for doing the public religious charity and they were permitted to share the remaining income. The property was not
dedicated. It was only the income that was dedicated to the religious or charitable purposes. Therefore, the dedication was only partial. As
observed by the Supreme Court in M. Dasaratharami Reddi''s case referred to above, the intention of the settler has to be given primary
importance. The settlers have very clearly stated that the endowment was not public in nature. It was purely a private endowment. Therefore, the
Petitioners cannot be heard to say that it was a public endowment and as such, the finding given by the learned District Judge with respect to the
nature of the trust was perverse.
CONCLUSION:
Therefore, I am of the view that no interference is called for in the order passed by the learned trial Judge and more particularly, the finding
recorded with respect to the nature of trust.
In the upshot, I dismiss the Civil Revision Petition. No costs.