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PARAMESHWARI versus VIRUDHUNAGAR, THIRUMANGALAM

High Court of Madras

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Parameshwari v. Virudhunagar, Thirumangalam - S.A.No.365 of 2006 [2007] RD-TN 1821 (7 June 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 07/06/2007

CORAM:

THE HONOURABLE MR.JUSTICE G.RAJASURIA

S.A.No.365 of 2006

and

C.M.P.Nos.2905 and 1 of 2006

1.Parameshwari

2.Pattamuthu

3.Madakannu

4.Gopal .. Appellants Vs

Virudhunagar, Thirumangalam

Palayampatti Kovilankulam,

Periakarisalkulam Five Villages,

Hindu and Christian Panickers,

Common Properties,

Managing Trust through their Trustees,

1.David Soundaraj

2.J.Stanley Jones

3.S.Raju

4.A.V.A.Packiaraj

5.V.Rajendran

6.A.Thanasekaran .. Respondents

Plaintiffs Prayer

Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 30.07.2004 in A.S.No.296 of 1996 on the file of the learned Subordinate Judge, Virudhunagar, confirming the judgment and decree dated 29.07.1994 in O.S.No.373 of 1991 on the file of the learned Additional District Munsif, Sattur.

For Appellants : Mr.N.Ramakrishnan

For Respondents : Mr.G.Mariappan

:JUDGMENT



This second appeal is focussed as against the judgment and decree dated 30.07.2004 in A.S.No.296 of 1996 on the file of the learned Subordinate Judge, Virudhunagar, confirming the judgment and decree dated 29.07.1994 in O.S.No.373 of 1991 on the file of the learned Additional District Munsif, Sattur.

2. The gist and kernel of the case of the plaintiffs as stood exposited from the plaint, is to the fact that the plaintiff being a public trust leased out the suit property namely, a residential premises to the defendants for monthly rent. Subsequently, the defendant failed to pay the rent as fixed by the plaintiff. Thereupon, terminating the tenancy of the defendants by issuing notice, the suit was filed before the Additioanl District Munsif Court, Sattur.

3. Denying and disputing, challenging and impugning the averments/allegations in the plaint, the Defendant filed the written statement inter alia raising a plea that the Civil Court is having no jurisdiction to entertain the suit as the plaintiff is not a public trust attracting exemption from the purview of the Tamil Nadu (Buildings Lease and Rent Control) Act, under G.O.Ms.No.2000, Home, 16th August, 1976 NO.II(2)/HO/4520/76. Accordingly, the defendants prayed for the dismissal of the suit.

4. During trial, P.W.1 was examined and Exs.A.1 to A.7 were marked on the side of the plaintiffs whereas D.W.1 was examined and Exs.B.1 and B.2 were examined on the side of the defendants.

5. Ultimately, the trial Court decreed the suit.

6. Being aggrieved by and dissatisfied with, the Judgment and Decree of the trial Court, the Defendants preferred an appeal in A.S.No.296 of 1996, on the file of the learned Subordinate Judge, Virudhunagar, which was also dismissed.

7. Being aggrieved by the said judgment and decree of the first appellate Court, the defendants preferred this Second Appeal inter alia on the following main grounds:

The Court below erroneously held that exemption contemplated under G.O.Ms.No.2000, Home, 16th August, 1976 NO.II(2)/HO/4520/76 was available in favour of the plaintiff, even though the plaintiff is really not a public charitable trust. Both the Courts below did not take note of the non compliance with Section 92 C.P.C. Accordingly, they prayed for setting aside the Judgment and Decree of both the Courts below.

8. At the time of admitting this second appeal, my learned Predecessor framed the following substantial questions of law: "1.Whether the exemption contained in G.O.Ms.No.2000, Home, dated 16.08.1978, has no application to the suit property?

2.Whether the respondent / plaintiff is a public religious and charitable trust?

3.Whether the suit is barred for not obtaining the leave of the Court under Section 92 CPC?"

9. Heard both sides in entirety.

10. The learned Counsel for the appellants would submit that G.O.Ms.No.2000, Home, 16th August, 1976 NO.II(2)/HO/4520/76, would not be applicable to the plaintiff as it is not a public charitable trust at all in stricto senso. In support of his contention, he would cite various decisions which would be dealt with infra. He would also develop his argument to the effect that the suit property is not the one contemplated under Ex.A.1, the compromise decree so as to show that this property is a Trust property.

11. Per contra, denying and refuting, the aforesaid arguments, the learned Counsel for the respondents would submit that Ex.A.1 is a compromise decree which emerged between Hindu Panickars and Christian Panickers, so that Hindu panickars who got converted into Christianity also should be benefited and that the recitals in Ex.A.1 would show that the Trust is both a religious as well as the charitable one.

12. The learned Counsel for the appellants cited the decision in V.Kannadasan v. Sirajunnissa Bivi reported in (2007)2 MLJ 636. An excerpt from it, would run thus:

"12. That the grant is personal is also clear from another aspect. If any of the sharers fail to perform the charity/kattalai, another family member can perform the same and can recover the expense from the defaulter's share. Absolutely no charge has been created for the performance of Kattalai. No fixed grant has also been specified for the purpose of Kattalai. A reading of the document makes it clear that charity has to be performed only from out of the income and there is no dedication."

13. This particular decision is not applicable to the facts and circumstances of the case as the property therein was not dedicated totally for charity, but only the income was meant for performing kattalai. But, here, Ex.A.1 would speak to the contrary. An excerpt from Ex.A.1, would run thus: "10. The present committee shall cease to hold office from the date of the formation of a new committee of Managers and shall hand over all documents papers and accounts as well as possession of movable and immovable properties to the newly elected members except the movable appurtenant to the worship of the deities in the temple in item No.(1) and in the possession of the Hindu Managers. (emphasis supplied)

11. With reference to the election of Two Hindu Managers for the Hindu Panikkar Community, referred to in Para 1 (apart from the election of six managers provided for in para 7 and it shall be done by the Hindu Panikkars alone.)

12. Out of the gross income charges, taxes, kists, etc., of the properties and their repairs shall be must first. Then an amount of Rs., which represents 1/5 of the net income i.e, gross income less the kist and the house tax.) subject to a maximum of Rs.400/- shall be ear marked as a first charge out of the income of the properties for the Pooja and worship in item 1, paid out every year to the Hindu Managers referred to in paragraph 10. The Balance shall be applied for such secular purposes as may be determined by the community at its meetings and the purpose shall be carried by the commitee of Managers. The said six persons as managers shall collect and disburse and otherwise expend the rent and other income from the properties as well as from the community for the purposes defined by the community.(emphasis supplied)

13. Defendants 1 to 4 and sub other defendants who were in management of suit properties shall be liable to account to this court for 12 years prior to the date of suit for the respective collection and expenditure made by them till the date of the new committee that is to function takes charge.

14. If any alteration, variation or change in respect of this scheme is found necessary and if any difficulty is felt in working out this scheme, any member of the community (whether Christian or Hindu) may apply to this Court for suitable directions. This court after notice to the parties on record shall after hearing the objections, pass suitable orders thereon. The application shall be made in this suit itself.

15. As regards the costs, the taxed cost of the plaintiffs and defendants by this Court shall be recoverable from out of the income of the common properties.

16. The parties may apply by means of a separate application for appointment of a Commissioner for taking accounts.

'E' SCHEDULE

MISCELLANEOUS SECULAR & RELIGIOUS EXPENSES:

1.Repairs to the immovable properties.

2.Muncipal taxes for the immovable properties assessed to Municipal areas.

3.Expenditure relating to the up keep of the Burial ground of the Hindu Panikkars.

4.Feeding on occasions of the Panikkar gatherings.

5.Maintenance of the Nadavanam and Pillayar temples in item of a Schedule."

14. As such, the entire reading of Ex.A.1 and more specifically, the clauses extracted above, would show that the income from the properties of the Trust shall be utilised for performing Poojas and for maintaining the temple including the celebrations of various Hindu festivals. Over and above that, there is a clause also to the effect that the Panikkars should be fed out of those income from the properties. As such, the entire corpus has been dedicated only for religious and charitable purpose.

15. The learned Counsel for the appellants would contend that there is no specification to the effect that the income should be utilised for charitable purposes, for which the learned Counsel for the respondents would contend that performance of Poojas would demonstrate that it is for religious purpose and the clause to the effect that income should be utilised for feeding the Panikkars, would include the charitable purposes also. The entire reading of Ex.A.1 would reveal that at one point of time in 1940's, there arose disputes between the Hinud Panikkars and the Christans and thereupon only, compromise scheme decree arose.

16. The learned Counsel for the appellants would submit that it is only a compromise decree. Such a submission cannot be countenanced for the reason that the said compromise decree in 1940, emerged at a time, when this dispute was not in the offing. It is a scheme decree passed on compromise and as such, it could rightly be taken as the basic document evidencing the scope of trust and the nature of the Trust and there cannot be any second thought over it.

17. The whole reading of Ex.A.1 would show that no part of the amount is meant for being utilised for only commercial purpose. If any commercial purpose is contemplated, then it could rightly be termed as the one not covered by the term "Public Charitable Trust".

18. The learned Counsel for the appellant also would contend that nowhere it is stated that it is a trust. In order to get clarified of the real position, it is better to refer to Exs.B.1 and B.2 which would speak by itself that the plaintiff trust issued receipts by describing itself as a trust and as such, having accepted such a factual position by the defendants even before the emergence of the suit. It is therefore too late in the day on the part of the second appellants to take a plea, quite antithetical to what they acquiesced to a factual position.

19. Hence, in this view of the matter, this Court, could rightly take the plaintiff as a trust for religious as well as charitable purposes. One other decision has been cited on the side of the second appellants in Sri Krishnavilas Bajanai Madam v. Commissioner, H.R & C.E., Dept., reported in (2007) 2 MLJ 15. An excerpt from it, would run thus:

"When there is no evidence that at any point of time, any member of the public had participated in the management or even had the right of worshipping or participating as a matter of right in any function, the plaintiff institution, established for the purpose of doing bajanais and for doing poojs for some days, is to be considered as a private Trust only and not as public charitable institution."

20. Out of context, the aforesaid decision is cited. In the case referred to above, the facts are entirely different so to say, when there is no evidence to show that any member of the public had the right of participating in the management or worship; such an institution cannot be termed as public trust, but it should be taken only as a private trust. Here, the facts are apparently and obviously different.

21. It is a trite proposition of law that the Panikkars in the five villages, cannot be termed as not part of the public. It is an incontrovertible position that the Trust is for the welfare of the Panikkars of five villages in general and for their welfare, the trust functions. Hence, it could rightly be taken as a pubic trust and furthermore, as per the terms of the trust, Ex.A.1, various festivals are bound to be conducted in which the public are entitled to participate and at that time, feeding should also be provided.

22. The dictum of the Honourable Apex Court in Kuldip Chand and another v. Advocate General to Government of Himachal Pradesh and others reported in 2003 SAR (Civil) 234, cited on the side of the second appellants, is to the effect that mere long user of a property as Dharamshala by itself would not lead to an inference that dedication of the property by the founder was in favour of the public and that too in the absence of any reference to it as such in the revenue records.

23. Here, my above discussion would show that the aforesaid decision is not applicable to the facts and circumstances of the case and it is quite obvious as in this case, Ex.A.1 clearly and categorically highlights the purpose of the Trust. G.O.Ms.No.2000, Home, 16th August, 1976 NO.II(2)/HO/4520/76, would exempt all the buildings of the Hindu religious public trust and public charitable trust of the said fact from the purview of the Tamil Nadu (Buildings Lease and Rent Control) Act. Here, as has been already highlighted above, various clauses contained in Ex.A.1 would show as to how the religious festivals and charitable acts should be performed by spending the income derived from the Trust properties.

24. Hence, G.O.Ms.No.2000, Home, 16th August, 1976 NO.II(2)/HO/4520/76, is clearly applicable in favour of the plaintiff.

25. The learned Counsel for the appellants would submit that the suit property is not proved to be a trust property. In my opinion, such a plea could only be termed as an after thought for the reason that Exs.B.1 and B.2 could clearly evidence and expatiate that this property is part and parcel of the plaintiff's property and accepting the same alone, he has been paying the rent and as such, the plea of the second appellant that this is not the trust property, cannot be countenance and upheld. Accordingly, the substantial questions of law are answered.

26. In the result, the second appeal is dismissed. However, taking into consideration the fact that the defendants/appellants are in occupation of it all along and that they would find it difficult to shift from it immediately as put forth by the learned Counsel for the second appellants. Six months' time is granted from this date for delivering the suit property to the plaintiff by the defendants. Consequently, connected C.M.P.No.2905 of 2006 and M.P.No.1 of 2006 are also dismissed. However, in the facts and circumstances of the case, there is no order as to costs.

To

1.The Subordinate Judge, Virudhunagar.

2.The Additional District Munsif, Sattur.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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