The Deputy Commissioner, H.R. And C.E. Department v. S. Rama Iyengar And Anr.

1. The revision petition is against an order granting permission to sell certain properties under Section34 of the Indian Trusts Act. The petitioner herein is the Commissioner, Hindu Religious and Charitable Endowments, who was not impleaded as a party to the original petition filed by the first respondent on coming to know of the Order. The petitioner on coming to know of the proceedings intervened as an objector to the original petition and contended that the petition under Section34 of the Indian Trusts Act was not maintainable. According to the petitioner, it is a religious trust and as such excluded from the purview of the Indian Trusts Act, 1882.

2. Section 1 of the Indian Trusts Act expressly excludes the applicability of the Act to public or private religious or charitable endowments.

3. The trust was created by one K. Srinivasan lyengar, father of respondents 1 and 2 herein, under a deed dated 25.10.1945. The relevant portions of the document read as follows:

...I, K. Srinivasan Iyengar B.A., B.L., Advocate, son of P.S. Krishnaswami Iyengar, Brahmin Vaishnavite, out of my free will and without any fear or bias and in my good senses do make this declaration of trust and execute this trust deed of which the particulars are as follows....

Declaration of Trust: I hereby declare and dedicate and indicate with certainty by this deed and by these words on intention on my part to create this trust. I hereby dedicate the under mentioned properties and their entire income to the trust and the fulfilment of the purposes herein mentioned. This shall never be construed as a mere case of the properties being burdened with the trust for the mere performance of these objects. Properties herein mentioned shall form the assets of this Trust which shall be called S.R.S.K. (Srirangaraja Rama Srinivasa Krishna) Srinivasa Iyengar's family trust estate....

Duration of the Trust: It shall come into effect from 1st April, 1946. It shall be permanent and eternal. Its purposes shall never be deemed to have been completely fulfilled. This is a charitable and religious trust and is created wholly for the fulfilment of the objects of the trust which are herein mentioned. All the income from the under mentioned properties shall be applied for the said religious and charitable purposes and if any portion of the said income is unspent for any reason what so ever it shall be added and incorporated in the funds held under the trust....

Beneficiaries of the Trust: (i) Sri Vaishnava religion; (ii) Sri Vaishnava community; (iii) Poorvesika Sri Vaishnava community; (iv) My descandants....

4. The founder nominated himself as the first trustee and manager for the period of his lifetime and prescribed that after his lifetime his two sons, who are the respondents herein and all their legitimate male descendants in the male line shall be the trustees from generation to generation. The purposes of the trust are very clearly set out in the document, a few of them being the propagation of Sri Vaishnaviam as propounded by the Vedas, Vedantas, Upanishads, Smiritis etc., and by the Always and Sir Vaishnava Acharyas and Ors., the advancement of the Sri Vaishnava community in general and the poorvasika Sri Vaishnava community in particular and the advancement of such of the members of the Poorvasiks Sri Vaishnava community who give an undertaking to preserve the communal Mark (Sika) and religious mark (Ocrdwa pundrama). The other objects are the feeding of the poor and pilgrims in general especially of the Poorvasika Sri Vaishnava community ordinarily and in times of festivity in Srirangam, Tiruvellarai, Srivilliputhur and Thirukoshtiyur and other centres of the Poorvasika Sri Vaishnava community and the renovation of temples and deities and other things attached to it and the creation and provision of Naivedyams in Tiruvellarai so long as they remain in their original sanctity. It is not necessary to set out in detail the other objects. Suffice it to point out that the founder took care to assert repeatedly that he had dedicated the properties to the trust and it shall never be construed as a mere charge or a case of the properties being burdened with the trust.

5. Regarding the alienations, it is stated in the document that the managing or other trustees solely or jointly shall have no power to sell, mortgage, or in any other way alienate any of the immovable properties of the estate after the founder's lifetime and he himself shall have the power to alienate or exchange them only for purposes necessary or beneficial to the trust estate. It is added that if the permission of the District Court, Tiruchirapalli is obtained for alienation of specified properties for necessary or beneficial purposes which are stated in the petition by his descendants after notice to all the parties interested, such alienation may be done. The founder has also proclaimed in the document that nobody, not even the Government or anybody created by it shall have the power to divert the funds of the trust for any other purpose.

6. The respondents filed O.P.No.114 of 1966 on the file of the District Court, Trichy for permission to sell some of the properties under Section34 of the Indian Trusts Act, the District Court dismissed the application on 12.10.1966. A revision was filed in this Court and it was taken on file as C.R.P.No.2410 of 1966. By order dated 11.7.1967, this Court disposed of the revision petition giving certain directions to the District Judge. It is necessary to extract certain parts of the judgment which will prove the circumstances which led to the directions being given by this Court as done in that case:

During the hearing of the petition, I gave notice to the Commissioner, Hindu Religious and Charitable Endowments as the properties are secular as well as religious in character. The Commissioner made an inspection of the suit properties. He has found that the lessees Kaveri structurals have invested more than twenty lakhs of rupees in buildings and machinery. It is also seen that subsequently the petitioners have entered into an agreement with the lessees to sell the properties to them after obtaining the necessary permission from the court. By entering into such an agreement with the lessees even before obtaining permission of the court, the petitioners have created a difficult situation....

The Commissioner has stated that the properties may be sold for Rs. 1,64,000. There is no suggestion that the trustees are not exercising honesty and good faith. On the other hand, they are seeking permission of the court to sell a portion of the Trust properties for the benefit of the Trust, and at a price advantageous to the Trust. The intention of the founder is that the property is intended to be kept by them. I understand that the lessees are prepared to pay Rs. 2,00,000 (Rupees two lakhs) in a "round sum. After taking into consideration the location of the properties intended to be alienated, the complexity of the situation created by the agreement arrived at by the parties to the sale and the price now offered by the lessees, I am of the view that the trustees should be permitted to sell the properties in question to the lessees for a sum of rupees two lakhs. The sum should carry interest from the date of the petition filed in the District Court. The entire sum, principal and interest, should be deposited to the credit of O.P. No. 114 of 1966, District Court, Tiruchirapalli. The learned District Judge will give suitable directions for investment of this amount in gilt-edged securities. Notice will be given by him to the Commissioner of the Hindu Religious and Charitable Endowments in the matter of apportionment of the sum deposited as between religious and secular portions of the Trust to be decided by the competent authority. Till the nature of the Trust is decided, the trustee should not withdraw either the interest or the principal.

7. In view of the observations made by this Court in the above revision petition, the Commissioner for Hindu Religious and Charitable Endowments issued directions on 21.7.1967 to the Deputy Commissioner, Thanjavur to start suo motu proceedings under Sections 63(a) and 63(f) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and decide the religious and secular portions of the trust early. Pursuant thereto, the Deputy Commissioner issued notice on 2.9.1967 registering suo motu proceedings as O.A. No. 34 of 1967 and held an enquiry with regard to the apportionment under Section63(a) and (f). The respondents were served and they were duly represented by a Vakil as seen from the memo filed by them before the Deputy Commissioner on 20.1.1969. It must also be stated here that both the respondents were practising advocates. The memo filed by them on 20.1.1969 reads as follows:

1. Without prejudice to our contentions we are giving herein a list of properties we are prepared to allot to religious portion of the charity.

2. The income and probable expenditure are based on the amounts received and spent by us for the past years.

3. We are to be managers in terms of the deed of endowment.

4. We are to receive one moiety of the income as honorarium.

5. We are prepared to submit accounts each year.

8. After the memo was filed, the matter was discussed at length in Court and the respondents agreed to set apart nine items of landed properties fetching a total amount of income of Rs. 9,032 for religious charities. It was represented that the expenses for religious charities would come to Rs. 3,500 per year at that time. The Deputy Commissioner accepted their statement and made the following observations:

...The expenses appear to be reasonable and therefore the same is accepted for the present. We do not know at this stage whether the nine items of properties set apart for public trust as per the memo filed by the respondents, are free from litigation or otherwise encumbered. We do not also know whether any of the items of properties has been omitted to be mentioned by the Trustees in their memo. Therefore without prejudice to re-open the matter and to re-allocate the properties in case of loss of title for the properties and further discovery I hold that these nine items mentioned in 'B' Schedule of Memo be set apart for the religious charities mentioned in the Trust Deed; of course, a larger portion of properties is earmarked by the respondents for the Private Family Trust.

Ultimately, the Deputy Commissioner passed an order declaring that half the income from the properties in B Schedule thereto should be spent for the religious charities mentioned by the founder and the respondents were advised to utilise 1/5th of the income for poor feeding and the rest for 'Ubhayams' mentioned in the memo and the enumerated items subject to change according to circumstances. It was also held that 50% was the maximum honorarium for the Trustees irrespective of the number of trustees in the family.

9. In 1971, a notice was issued to the respondents by the Deputy Commissioner, Trichy to show cause why trustees should not be appointed for the trust by the department. A reply was submitted by the respondents on 31.7.1971 objecting to the proposal to appoint trustees and on 9.8.1971 the respondents were directed by the Assistant Commissioner to initiate proceedings under Section63(b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act. Accordingly, the respondents filed an application before the Deputy Commissioner, Coimbatore, which was numbered as Application No. 50 of 1971 under Section63(b) of the Act for declaring them as hereditary trustees. An order was passed on 1.12.1971 on that application allowing the petitioner and declaring the respondents as hereditary trustees. It is not in dispute that the respondents have been submitting budgets and accounts and paying contribution and audit fees to the department in accordance with the provisions of the Act from 1971 onwards. The accounts are being audited by the department regularly.

10. While so, the first respondent filed O.P.No.3 of 1990 before the District Court, Tiruchirapalli under Section34 of the Indian Trusts Act for permission to alienate the property set out in the schedule to the petition belonging to the trust in favour of eight persons named in the petition for a total price of Rs. 5,73,750. To that petition the second respondent was impleaded as a party and nobody else was impleaded. The second respondent is one of the trustees while the first respondent is one of the managing trustee. Inspite of the earlier proceedings to which I have made reference above, the respondents did not choose to implead the petitioner herein as a party or even give notice to him about the proceedings. The petitioner having come to know of the proceedings, filed objections and intervened in the proceedings. The District Court heard the parties and held that the property is only a private family trust property and it is a religious trust within the meaning of the Tamil Nadu Hindu Religious and Charitable Endowments Act. According to the District Court, persons belonging to other religious are also beneficiaries under the trust and therefore, the trust cannot be said to be a Hindu Religious Trust. In that view, the learned District Judge has overruled the contentions raised by the petitioner herein and directed the sale of the properties under Section34 of the Indian Trusts Act. He did not, however, accept the prayer of the respondents but directed a sale by public auction and it is against the said order of the District Judge, the present revision has been filed.

11. The petitioner prayed for stay of all further proceedings pursuant to the order of the District Judge in C.M.P.No.2950 of 1991. When the matter came up for admission, the first respondent having entered a caveat already, took notice through his counsel and this court passed an order in the Civil Miscellaneous Petition on 1.3.1991 that the sale will go on as proposed, but the confirmation will be stayed until further orders. Time was granted to the first respondent for filing counter and notice was directed to be issued to the second respondent.

12. It is nowstated that a sale was held pursuant to the order of the District Court and the purchaser has deposited a sum of Rs. 7,02,000 in the District Court. When the matter was being heard today. Mr. G.K.R. Pandiyan, Advocate represented by Mr. Ramakrishnan, Advocate, appeared and informed this Court that an application has been filed by the purchaser to implead himself as a party to the civil revision petition and the said application has not yet been numbered. He prayed for an adjournment of the petition, so that the application could be numbered, and brought before me. I refused to grant adjournment as I am of the view that the purchaser has no right whatever to intervene in this Court in this revision petition. This Court has clearly directed that the confirmation of the sale shall be stayed until further orders. So long there is no confirmation of the sale, no right can be claimed by the purchaser under the sale. The sale is subject to an express confirmation by the court and in the absence of such confirmation, no interest has accrued in favour of the purchaser. Hence, I hold that the purchaser is not a necessary party and there is no necessity for me to wait for his application to be numbered and posted before me.

13. Even the facts referred to above show that the trust is a religious trust and it is exempted from the provisions of the Indian Trusts Act. Even if it is a private religious trust, it will be outside the scope of the Indian Trusts Act. Hence, Section34 of the Indian Trusts Act cannot be invoked by the respondents herein.

14. Learned Counsel for the respondents contends that there was no final adjudication on the character of the trust and the matter was left to be decided later. He places reliance on the observations made by this court in the order in C.R.P.No.2410 of 1966 that

"till the nature of the trust is decided, the trustees should not withdraw either the interest or principal"

. Learned Counsel for the respondents contends that the decision on the nature of the trust has not yet been given by any competent Court. Learned Counsel submits that the order made by the Deputy Commissioner in O.A.No.34 of 1967 under Section63(a) and (f) would only amount to a temporary arrangement agreed to by the trustees and that cannot be taken as an adjudication of the nature of the trust. I do not agree with either of the contentions. No doubt, the respondents stated in their memo that they were filing it without prejudice to their contentions. But, they prevented the Deputy Commissioner from deciding the question under Section 63(a) and (f) of the Act by making an unconditional offer that the properties set out in the B Schedule would be utilised for religious purposes mentioned in the trust deed. Thus, having prevented the competent authority from deciding the question when it arose for consideration by making an apportionment themselves and the authority having accepted that apportionment and passed the orders, it is not open to the respondents to turn round and say that such arrangement will not prevent them from unilaterally declaring impliedly that the trust will fall under the provisions of the Indian Trusts Act and that they are entitled to approach the District Court under Section 34 of the said Act. If really the trustees were of the opinion that there was no adjudication by the Deputy Commissioner in O.A. No. 34 of 1967 and that they had kept the matter open for decision later, their primary duty was to have approached the authorities under the Tamil Nadu Hindu Religious and Charitable Endowments Act and sought for a decision on the relevant question. They did not do so, But, on the other hand, they assumed that the trust will be one governed by the Indian Trusts Act and approached the District Court, Trichy under Section 34 of the Indian Trusts Act without even impleading the Commissioner, Hindu Religious and Charitable Endowments Board as party or giving notice to him by themselves. This conduct of the trustees is highly reprehensible and not to be encouraged by any court of law.

15. It is next contended by learned Counsel that there was no dedication of the properties to the trust and if at all there was only a charge or the properties were burdened with a trust, whereby some portion of the income from the properties should alone be spent for certain purposes, I cannot agree with this contention. I have already extracted the relevant portions of the trust deed and found that the founder of the trust, who was an advocate, took care to declare positively that he was dedicating the properties to the trust and also to declare that nobody else could claim that the properties were only charged with a trust and that there was no absolute trust. In the face of such express declaration made by the founder in the trust deed, it is not open to any of the trustees to contend that what was created by the document was only a charge and not an absolute trust. I have no hesitation to hold that there was dedication of the properties to the trust by the founder and it was not as if there was only a charge or the properties were burdened with a trust. Hence, the order of apportionment made in O.A.No.34 of 1967 is binding on the trustees so long as it holds the field. If the respondents wanted to get the order altered, they should have gone before the Deputy Commissioner or other competent authority for appropriate reliefs in that direction, if any such course is available to them in law.

16. Learned Counsel submits that this Court has in C.R.P. No. 2410 of 1966 permitted the sale of the properties by the trustees and now that the sale has been held pursuant to the directions issued by the District Court, Tiruchirapalli in the order under revision, this Court should recognise that sale and give directions with regard to the utilisation of the money deposited by the purchaser in Court for the purpose of the trust. I cannot accede to such request by learned Counsel. It appears that the modus operandi which is adopted by the trustees, is to bring about a situation which may create a sympathy in the mind of the Court and to request the Court that is view of that situation, consequent directions should be given. In 1966 the property had already been subject matter of lease in favour of Kavery Structural. They had erected superstructures worth several lakhs of rupees. If at that time the properties had been sold, they would not have fetched the proper price. Then an offer was made by the lessees of the properties and the court found that the offer of the lessees was beneficial to the trust. The court also observed that in view of the complexity of the situation" created by the trustees at that time, it was obliged to pass an order directing sale of the property to the lessee. The same modus operandi cannot be adopted by the trustees once again now and the court cannot be compelled to accept meekly the situation brought into existence by the trustees. The trustees cannot take advantage of their acts in violation of law and claim that the sale held by the District Court should be accepted by this Court.

17. It is contended that no prejudice will be caused to the Hindu Religious and Charitable Endowments Department by accepting the sale now held by the District Court. The question of prejudice does not arise. The District Court has no jurisdiction whatever to direct the sale of the property. The trustee cannot approach an authority which has no jurisdiction behind the back of the persons concerned to get an order of sale and then insist before this Court that no prejudice will be caused to the persons concerned by the sale being accepted. I have already pointed out that the conduct of the trustee should not be encouraged by any court. Hence, this contention is also rejected.

18. Learned Counsel invited my attention to the judgments of the Supreme Court in DeokiNandan v. Murlidhar and Ors. , Manakuru Dasaratharami Reddi and Anr. v. Dudhukuru Subba Rao and Ors. A.I.R. 1957 S. C. 797 : (1957) 2 M.L.J. (S.C.) 175 : (1957) 2 An. W.R. (S.C.) 175 : 1957 S.C.J. 835 :1957 S.C.R. 1122 and S. Shanmugam Pillai and Ors. v. K.Shanmugam Pillai and Ors. , and contends that there is no dedication in this case and the properties cannot be considered to be absolute trust properties. I have already held on the facts that there is an absolute trust and it is not a mere charge. The language used in the document shows that there cannot be a clearer dedication than this to a trust.

19. Reliance is placed upon the recital in the document that "Charity begins at home but does not end there". According to learned Counsel, the founder had in mind his descendants and the members of his family and the property was not exclusively dedicated to a trust. No doubt it is so. But, there has been a clear apportionment as early as on 3.1.1969. Any property which was set apart under Section 63(f) for the purposes of religious trust cannot thereafter be said to be a private property or a private secular trust property. Hence, the contention cannot be accepted.

20. Learned Counsel places reliance on the observations of the Supreme Court in Jadu Gopal Chakravarty v. Pannalal Bhowmick and Ors. , wherein it was pointed out that when the property dedicated to a deity is very large, and the religious ceremonies which are expressly prescribed by the settler, cannot exhaust the entire income, some portion of the beneficial interest may be construed as undisposed of and cannot but vest as secular property in the heirs of the settler. That question does not arise in this case. I have already referred to the various clauses in the trust deed. The founder has created a trust and one part of the income is to be spent for private family trust and another part is to be spent for religious purposes. It is only on that basis, an apportionment has been made in O.A. No. 34 of 1967. This Court is concerned only with the properties set out in the 'B' Schedule to the Order in O.A. No. 34 of 1967 and the property which is now sought to be sold is item No. 1 in the said 'B' Schedule. Hence, it is not a matter which can be brought by the respondents before the District Court, Trichy, under Section34 of the Indian Trusts Act.

21. Yet another contention of learned Counsel for the respondents is that the founder himself has contemplated only an application before the District Court for permission to alienate and in pursuance of such direction in the trust deed, the respondents approached the District Court bona fide for permission to alienate the property. The founder is not a legislator and he cannot prescribe the authorities whom the trustees shall approach for getting permission to alienate the properties. In this case, the respondents have themselves accepted the authority of the Hindu Religious and Charitable Endowments Department and get themselves declared as hereditary trustees under the Tamil Nadu Hindu Religious and Charitable Endowments Act in 1971 and since then they have been submitting the accounts to the department regularly under the provisions of the Act. There is no substance in the contention that there is a direction in the trust deed that the trustees should approach only the District Court for getting permission to alienate the properties.

22. In the circumstances, I hold that the original petition filed by the first respondent herein before the District court, Tiruchirapalli in O.P. No. 3 of 1990 is not maintainable and it deserves to be dismissed. Consequently, the civil revision petition is allowed. The order of the District Judge in O.P. No. 3 of 1990 is set aside. O.P. No. 3 of 1990 is dismissed. The respondents shall pay the costs to the petitioner in these proceedings.