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T. Palaniswamy Gounder v. A.V.G Ponnuswami Chettiar And 8 Others
Factual and Procedural Background
This revision petition was filed by the third respondent against an order of the Subordinate Judge in respect of an application under Section 92 of the Code of Civil Procedure seeking leave to institute a suit for the reliefs claimed in the plaint. The plaint alleges that by a registered deed dated 7.9.1900 (and a supplemental deed dated 12.4.1911) Mandi Venkatanaicker created a trust endowing property for religious and charitable purposes. One of the properties so endowed was a building in Ponveethi (formerly Mandi) Street in Erode, which the plaint states was leased to the first plaintiff in 1942 for business, and that rent was applied to the trust objects.
The plaintiffs allege that on 19.7.1988 the second defendant informed the first plaintiff that he had sold the property to the third defendant and directed payment of rent to the purchasers. The plaintiffs contend that the sale is void because the trust documents expressly prohibit alienation. They claim an interest in preserving the trust, allege there is presently no trustee, and seek a declaration that the alleged alienation to the third defendant is null and void, along with a scheme for enforcement and management of the trust.
Before the court below the main contested issue (argued at length) was whether the plaintiffs had such an interest in the trust as to entitle them to maintain proceedings under Section 92, Code of Civil Procedure. The revision petition allows the third respondent to raise for the first time the pure question of law whether the trust is a religious endowment such that Section 92 would not apply.
Legal Issues Presented
- Whether, on the averments of the plaint and the terms of the deeds of 7.9.1900 and 12.4.1911, the trust is a "religious endowment" or "religious charity" within the meaning of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
- Whether Section 92 of the Code of Civil Procedure is applicable to the trust or is excluded by Section 5 of the Hindu Religious and Charitable Endowments Act.
- Whether the plaintiffs have such an interest in the trust as to entitle them to maintain proceedings under Section 92, Code of Civil Procedure.
- Whether questions of apportionment (if any part of the trust is secular) fall to be dealt with under Section 63(g) of the Act and by the Deputy Commissioner of Hindu Religious and Charitable Endowments pursuant to the Act's procedures (and the effect of Section 108 barring suits save under the Act).
Arguments of the Parties
Plaintiffs' Arguments
- The learned counsel for the plaintiffs contended that the trust is not a religious charity or religious endowment but a purely public charitable endowment; thus it does not fall within the definitions in Sections 6(16) and 6(17) of the Hindu Religious and Charitable Endowments Act.
- The plaintiffs' counsel submitted that unless there is an endowment in favour of a temple as such, the arrangement cannot come within the purview of the statutory definition of religious charity.
- Before the court below the central practical argument was that the plaintiffs had no such interest in the trust as would entitle them to maintain the Section 92 application.
The opinion states it is unnecessary to refer in detail to all respective contentions put forward below; no detailed counter-arguments by the respondents are set out in the provided text.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| The Commissioner, Madras Hindu Religious and Charitable Endowments v. Maravana Ayyangar, A.I.R. 1965 S.C. 1916 | Interpreting the definition of "religious charity": association with a Hindu festival or observance need not imply control by temple or math authorities; a religious festival or observance may be local or general and the charity's administration need not be controlled by those who celebrate the festival. The association must be real, not imaginary. | The court treated the Supreme Court's observations as directly applicable ("apply on all fours") and relied on that precedent to conclude that the trust in question is a religious endowment/charity within the meaning of the Tamil Nadu Act, thereby excluding Section 92 of the Code of Civil Procedure. |
Court's Reasoning and Analysis
The court conducted a document-focused analysis (noting that no further evidence was necessary because the question was one of law dependent on the plaint and the deeds). Key elements of the reasoning are:
- Examination of the trust instruments: The deed of 17.9.1900 (and the supplemental deed of 12.4.1911) were reviewed. The original deed ordained performance of poojas to Sri Vigneswaraswamy (an idol installed in the front portion of the choultry) as the main object; any surplus after spending income for that pooja was directed to be spent on feeding persons from outside the village who stayed in the choultry. The supplemental deed broadened objects and added further religious observances and outlays (including specified festival spending and payments linked to named shrines and observances).
- Characterisation under the statute: The court identified the trust as a religious endowment within the meaning of Section 6(17) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, and noted the statutory definitions of "religious charity" (S.6(16)) and "religious institution" (S.6(18)). It observed that Section 5 of the Act causes Sections 92 and 93 of the Code of Civil Procedure to cease to apply to Hindu religious institutions and endowments.
- Application of precedent: The plaintiffs' contention that the arrangement was only a public charitable endowment and not a religious endowment was considered in light of the Supreme Court's decision in The Commissioner, Madras HR & CE v. Maravana Ayyangar. The court extracted and relied on the Supreme Court's reasoning that association with a festival or religious observance need not import control by temple authorities and that such association may be real even where the charity's administration is not integrated with festival management.
- Consequence for procedural competence: Because the deeds and the plaint show that the trust's dominant purpose is religious, Section 92 of the Code of Civil Procedure was held not to apply. The court further observed that, where part of a trust is secular, apportionment and allocation is provided for in Section 63(g) of the Act and must be undertaken by the Deputy Commissioner of Hindu Religious and Charitable Endowments after due enquiry; and that Section 108 of the Act bars suits or proceedings in courts with respect to matters for which the Act provides its own remedy, thereby indicating that the statutory procedure must be followed.
- Jurisdictional timing: Although the characterisation issue had not been raised below, the court permitted the petitioner to raise it for the first time in revision because it is a pure question of law relating to the court's jurisdiction and depends only on the plaint and the deeds.
- Limitation of decision: The court expressly stated that, having reached the conclusion on the Natura of the trust and the inapplicability of Section 92, it was unnecessary to decide other questions argued before it.
Holding and Implications
Holding:
The civil revision petition is allowed. The order of the Subordinate Judge dated 21.9.1990 in I.A. No. 1024 of 1988 is set aside, and the application (under Section 92, Code of Civil Procedure) is dismissed as not maintainable. The parties are to bear their respective costs.
Implications:
- The court's decision means, in this case, that the trust constituted by the 1900 and 1911 deeds is a religious endowment within the meaning of the Tamil Nadu Hindu Religious and Charitable Endowments Act, and therefore Section 92 of the Code of Civil Procedure does not apply to the plaintiffs' attempt to obtain leave to sue under that provision.
- Where any part of the trust may be secular, apportionment and allocation must be addressed under Section 63(g) of the Act by the Deputy Commissioner of Hindu Religious and Charitable Endowments after due enquiry; litigation in ordinary courts on matters for which the Act provides a scheme is barred by Section 108 and must follow the Act's procedures.
- The court did not decide other contested issues, and no new principle of law was announced beyond the application of existing statutory definitions and the cited Supreme Court authority to the facts of this case.
This revision petition is filed by the third respondent in the application before the court below which was one under S. 92 of the Code of Civil Procedure for leave to institute the suit for obtaining the reliefs set out in the plaint. In the view I am taking, it is not necessary to refer in detail to the respective contentions put forward by the parties in the court below.
2. According to the plaintiffs, by a registered deed dated 7.9.1900 Mandi Venkatanaicker, a respectable and prominent citizen of Erode created a Trust, endowing his property for religious and charitable purpose enumerated in the document. By a supplemental deed dated 12-4-1911, more properties were vested for the purpose of carrying out the endowment. The plaint proceeded to state that the trustees were ordained to maintain regular accounts, work out a balance sheet every year and carry out the religious functions and charitable objects enumerated in detail in the documents without any variation or substraction. One of the properties endowed was a building in Ponveethi Street, which was previously known as Mandi Street in Erode and that is said to be the suit property. According to the plaintiffs, it was leased out to the first plaintiff in 1942 by the trustees for the purpose of carrying on a business and he was let into possession. It is alleged that the rent paid by him was utilised for carrying out the objects of the trust. The plaint refers to certain arrangements between the heirs of the founder, which, according to the plaint were evidenced by a document dated 1.8.1951 plaintiff's 2 to 4 are the sons of the first plaintiff, who were taken as partners in the business and the business was continued in the name of M/s. A.V.G Ponnuswami Chettiar and Sons, the fifth plaintiff. The first plaintiff received a letter from the second defendant on 19.7.1988, informing him that he had sold the property to the third defendant and directing him to pay monthly rent of Rs. 650/- to the purchasers. The plaintiff's have alleged that the sale in favour of the third defendant is invalid and void and no right, title and interest passed on in his favour there is an express prohibition in the documents of trust against alienation and consequently the sale is void. It is also alleged in the plaint that the plaintiff's are interested in preserving the trust as citizens of Erode. Alleging that there is no trustee at present of the trust, they have come forward with the present proceedings for a declaration that the alienation in favour of the third defendant is null and void and not binding on the trust, framing a scheme for the enforcement and smooth running of the trust and other reliefs.
3. Thus, according to the plaint the Trust was created under the document of 17.9.1900 and added to by a document dated 12.4,1911. The plaint has expressly stated that the trust is a religious and charitable endowment. It is seen from the document dated 17.9.1900 that the main object of the trust was performance of poojas to Sri Vigneswaraswamy whose idol was installed in the front portion of the choultry built by the founder in S. No. 1075- A. According to the document, the founder was already utilising the income from the properties, which was his self-acquisition for the said purpose. The docu ment directs the balance, if any, after spending the income for the pooja of Sri Vigneswara to be spent for feeding people from outside the village who stay in the choultry. Another clause in the document is to the effect that if there is any inter ruption in the feeding, the income shall be spent for and ie., recitation of vedas and lectures in Hankathas). Thus the document shows that the dominant purpose of the trust was a religious one and the document provides only the surplus income for the purpose of feeding ‘Desantharis’ (Pilgrims) who stay in the chatram. The second document dated 12.4.1911 was necessitated as the founder could not carry out the purpose of the trust with the income from the properties already endowed. It is stated in the document that the number of persons who were benefited by the said trust was increasing and in order to make the trust permanent it was necessary for him to endow some more properties. With that object, the second document was executed. The objects of the trust were also widened. Under clause 8 of the document, the following purposes were set out:
(i) to spend not less than Rs. 100/- for ‘Sri Jayanthi’ and ‘Vaikunta Ekadasi’ festivals in Sri Ranganathaswami Koil, Erode Town;
(ii) to perform feeding . by spending not less than Rs. 15/- in the Shrine of Sriperumbudur Udayavar alias Bashyakar at Thirupathi alias Thirumalai.
(iii) to spend not less than Rs. 5/- per year for the “Thanneer Pandal'at the time of “Natavapi Uthsavam” in the month of Chitrai in Sri Varadaraja Shrine at Kancheepuram
(iv) to spend not less than Rs. 15/- per year such as “Ubayam” or for”
in the temple. Sri Ranganatha at Srirangam;
(v) to spend below Rs. 150/- for the samadhi of the founder after “his life time.
It is not necessary for me to discuss whether the endowment for the last object relating to Samadhi is valid or not.
4. What I have said above is sufficient to show that the endowment is a religious endow ment within the meaning of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, “Religious Endowment” is defined in S. 6(17) as follows:—
“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 archakas, service-holders or other employee of a religious institution.”
5. S. 6(16) defines “religious charity” as a public charity associated with a Hindu festival or observance of a religious character, whether it be connected with a math or temple or not. “Religious institution” is defined in S. 6(18) as a math, temple or specific endowment.
6. S. 5 of the Hindu Religious and Charitable Endowments Act declares that Ss. 92 and 93 of the Code of Civil Procedure shall cease to apply to Hindu religious institutions and endowments.
7. On the averments made in the plaint and on the terms of the documents relied on by the plaintiffs, the trust is only a religious endowment as defined by the Act and it is not an exclusive charitable endowment or secular endowment. Hence S. 92 of the Code of Civil Procedure ceases to be applicable to the said trust. Even if it is assumed for the sake of argument that a part of the trust is for secular purpose there is a provision in the Act in S. 63(g) for apportionment and allocation. The same has to be done by the Deputy Commissioner of Hindu Religious and Charitable Endowments after due enquiry. S. 108 of the Act bars a suit or other legal proceedings in respect of administration or management of religious institution or any other matter or dispute for determining or deciding which provision is made in the Act from being instituted in any court of law except under, and in conformity with, the provisions of the Act, hence for the purpose of apportionment and allocation also, Deputy Commissioner of Hindu Religious and Charitable Endowments Department has to be approached under S. 63(g) of the Act and the other procedure prescribed under the Act has to be followed.
8. The contention that the Trust is a religious endowment on the basis of the allegations made in the plaint and ihe terms contained in the documents relied upon by the plaintiffs, has not been raised in the court below. The question that was argued at length before the court below was that the plaintiff's had no interest in the trust so as to entitle them to maintain the proceeding under S. 92 of the Code of Civil Procedure. This question has been raised before me in this revision petition. Being a pure question of law, which depends only on the terms of the documents and the recitals in the plaint and being a question which relates to the jurisdiction of the Court, I permit the petitioner to raise the question in this revision petition for the first time. There is no necessity for any other evidence to be let in for the purpose of deciding the character of the trust, which is referred to in the plaint.
9. Learned counsel for the plaintiff's con tends that this is not a case of religious charity or religious endowment and it is purely a public charitable endowment and it does not fall within the definition set out in S. 6(16) and 6(17) of the Hindu Religious and Charitable Endowments Act. Learned counsel submits that unless there is an endowment in favour of the temple as such it cannot come within the purview of the definition. The question is not res intera. It has been settled by the Apex Court of the country as early as in 1985. In The Commissioner, Madras Hindu Religious and Charitable Endowments v. Maravana Ayyangar A.I.R 1965 S.C 1916 it has been held that according to the definition of a religious charity, there must be a public charity which must be associated with a Hindu festival or observance of a religious character and it is not necessary that the charity be connected with a math or temple. On the facts of the case, a Trust was created with the aid of contributions, subscriptions and donations. It was a Samaradhanai Fund land for feeding Brahmin pilgrims attending Sri Venkatachalapathiswami shrine at village Gunaseelam on the occasion of Rathotsavam festival. This court held that it was not a religious charity as defined by the Act as it was not associated with any Hindu festival or observance of a religious character. The test applied by this Court was that there was no manner of controlor supervision over the feeding charity or Samaradhnai Fund by the trustees of the temple and there was no association between the fund and the Rathotsavam festival as such. It was also pointed out by this Court that cessation or discontinuance of the feeding by the trustees of the feeding charity may constitute a breach of trust on their part but cannot in the least affect the due performance of the Rathotsavam festival itself. It was on that basis this Court held that the feeding of the brahmins on the occasion had no link or connection with the festival though it was meritorious.
10. Reversing the decision of this Court, the Supreme Court has observed that the expres sion “being connected with” or “relation to” does not import any control by the authorities who manage or administer the festival in the temple. It will be advantageous to extract the relevant following observations made by the Supreme Court in that connection:
“A Hindu religious festival or observance may have a local significance, in that it is celebrated or observed in a particular locality in connection with a shrine, temple or math, or it may be a festival or observance celebrated generally without any connection with any temple or math. In the case of such general festivals or observances there is no one who can be said to control the celebrations, and the definition of “religious charity” includes such general festivals and observances. It cannot be assumed that there must always be a set of persons who control the celebration of a festival or an observance. The test suggested by the High Court that in order that there should be, between the charity and the festival or observance, such a relation that the administration of the charity must be controlled by those who celebrate the festival or observance in a temple or math, besides being inapt in the case of general festivals and observances can only be evolved if words which are not found in the definition of “religious charity” are added thereto.”
11. It has been held that the association with the religious festival should undoubtedly be real and not imaginary, but to constitute association it is not predicated that the administration of public charity must be controlled by the persons responsible for celebrating the religious festival in a temple or math or be an integral part of the festival or observance.
12. The above ruling of the Supreme Court will apply on all fours to the present case and I have no-hesitation to hold that the trust with reference to which the plaintiff's have come forward with the application under S. 92 of the Code of Civil Procedure is a religious endowment or religious charity within the meaning of the Tamil Nadu Hindu Religious and Charitable Endowments Act and S. 92 of the Code of Civil Procedure is not applicable thereto. Hence the application filed by the plaintiff's is not maintainable and deserves to be dismissed.
In the view I have taken, it is not necessary for me to decide the other questions argued before me.
13. In the result, the civil revision petition is allowed and the order of the Subordinate Judge dated 21.9.1990 in I.A No. 1024 of 1988 is set aside and the application is dismissed as not maintainable. The parties will bear their respec tive costs.
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