JUDGMENT

(Delivered by Ramakrishnan J.)

The appellant is the defendant in O.S No. 3 of 1961, on the file of the Court of the Subordinate Judge, Nagapattinam. The respondent-plaintiff in the suit is the Thillayadi Pillayar temple Charity by its interim trustee, M.S Pandian. The plaintiff filed the suit to recover possession of the plaint schedule properties with Rs. 4000 as past profits, and future mesne profits. The plaint allegations are these. The suit properties originally belonged to one Rethinam Pillai. He executed a registered will on 21st November, 1918, bequeathing his properties to a charity and to various legatees and appointing his widow Sundarambal Achi as executor and trustee. Shortly after his death, Velusami Pillai, claiming to be his undivided brother challenged the will in the suit O.S 70 of 1919 Sub Court, Nagapattinam (which was subsequently numbered as O.S 103 of 1921, after transfer and transfer again to Sub Court. Nagapattinam). There was a compromise in this suit and a decree was passed therein on 8th December 1921. This compromise decree is Ex. A.1 Clauses 5, 7 and 8 of this Compromise decree are important, and they are there:—

“5. We have settled that such of the moveables that are in the possession of the respective parties shall be taken by themselves respectively, that the immoveable property mentioned in the C schedule shall be set apart for charity, and that both shall recover the outstanding amounts and shall take the same between themselves in equal shares.

7. We are agreed that the D schedule village shall be sold end that (the sale proceeds) shall be taken in equal shares. Out of the sale proceeds realised as aforesaid the plaintiff shall spend a sum of Rs. 2000 and build a Pilliar temple at Thillayadi.

8. The income derived from the E schedule property is set apart for the daily pooja, the feeding of Brahmins and the Ekadasi and Krithikai ubhayams the Pilliar temple, Velusami Pillai and his santhathis shall manage the aforesaid charities”.

Veluswami Pillai executed a will Ex. A.2 in favour of his wife Rajammal on 31st August, 1927. The crucial recitals is that will can now be referred to:—

My wife, Rajammal, shall succeed with all absolute rights to the moveable and immoveable properties that I had got under the decree in O.S 103 of 1921, on the file of the Sub Court, Nagapattinam, with powers of alienation such as gift, exchange, sale etc.…. The management of the charity mentioned in the decree in O.S 103 of 1921 aforesaid and being conducted permanently, shall be done by my wife, Rajammal, after my lifetime, from out of the income derived from the property set apart by me for that purpose”.

The next stage in the transactions is the sale deed Ex. A.3 executed by Rajammal in favour of the defendant conveying to him the property mentioned in the C schedule in the compromise decree. The relevant part of the sale deed it this:

“You withheld out of the sale consideration Rs. 2000 for the dharmam, according to the compromise decree in O.S 103 of 1921. It is agreed that I should purchase property for the said Rs. 2000 and offer it as security and then receive from you the said Rs. 2000. In the matter of my having received cash from you for performing the remaining charitable acts, for family expenses and to return the advance received from the tenants in the building, the amount paid to me is Rs. 1555. Since in all for the aforesaid 3 items, I have received the total amount of Rs. 8000 (Rs. Eight thousand only) from this day you shall be in enjoyment of the aforesaid building etc.…..with powers of alienation such as gift, exchange, sale etc.……..”

Alleging that Rajammal was acting in breach of the trust, two persons who were permanent residents of Thillayadi and devotees of the temple filed O.S 4 of 1949 on the file of the District Court, Nagapattinam, directing the defendant to deliver the suit properties to the Trust after declaring that the sale in his favour by Rajammal was not binding on the trust. The defendant contested the suit. The District Court, by its judgment dated 22nd August, 1950, decided that the suit properties were the absolute trust properties and that the sale relied on by the defendant was invalid and did not confer any title on the defendant. The court directed the defendant to deliver the suit properties to the trust along with mesne profits. The defendant appealed to the High Court and the appeal was numbered as App. No. 610 of 1950 and it was finally disposed of on 8th August, 1955. By that time, the defendant had deposited in court Rs. 5000 towards mesne profits. The High Court in its judgment confirmed the District Judge's finding regarding the trust character of the suit properties and the invalidity of the sale relied on by the defendant. But the High Court allowed the appeal and dismissed the suit on the ground that the suit was bad for want of prior sanction under S. 73 of the Hindu Religious Endowments Act of 1927. The High Court also observed that the Commissioner of the Hindu Religious Endowments should take immediate steps to recover the properties wrongfully alienated by Rajammal and see that the Pilliar temple was built as contemplated under the terms of the compromise decree. The Commissioner of the Hindu Religious Endowments then appointed the plaintiff as an interim trustee of the plaint charity and authorised him to take action to recover the suit properties with mesne profits. The present suit was filed thereafter by the plaintiff for the reliefs mentioned above.

In his written statement, the defendant raised the following pleas. The compromise decree made it clear that the income from the C schedule properties should be utilised only if the Pillayar temple was built in the village by Veluswami Pillai. But such a temple had not been built. Until it is done, the terms of the compromise decree in regard to the C schedule properties which are also the suit properties will not come into effect. Secondly, it was urged that under the terms of the compromise decree, there was only a charge on the income from the suit properties in favour of the religious and charitable purposes mentioned. But, since the temple was never built, the dedication of the suit properties or its income failed and became void. Veluswami Pillai never accepted the trust character of the suit properties and never performed any charity. It is also alleged in the written statement that though in his will Veluswami Pillai made a reference to certain charities which he was performing, he did not refer to the plaint mentioned charity because the Pilliar temple had not been built. The suit properties were bequeathed to Rajammal with absolute rights. She never accepted the office of trustee of the plaint trust, and she too never performed the plaint mentioned charities at any time. The possession of the defendant was adverse to the trust and in any event, the defendant has perfected title to the suit properties by adverse possession. There was a further plea that under the terms of the compromise decree, the trustees of the plaint-trust should be hereditary and unless the hereditary trustee was removed or a scheme framed in accordance with the Hindu Religions Endowments Act, the Commissioner had no power to appoint a trustee of his own will. S. 20 of the Act would not also validate the order of appointment of the plaintiff.

The learned Subordinate Judge of Nagapattinam found that there was a valid endowment of the suit properties. He also found that there was absolute dedication to the trust of the properties and that the entire income from them was directed to be utilised for the Nithyapooja, Neyvedhyam, Deeparadhana in a Pilliar temple to be constructed by Veluswami Pillai at a cost of Rs. 2000 for the Ekadasi and Krithigai ubhayams and for feeding Brahmins. He observed that there was first of all a compromise to this effect between Veluswami Pillai and Sundarambal Achi on 7th July 1921 and these terms were subsequently embodied in the razinama decree dated 8th December, 1921. The learned Judge, thereafter referred to the several authorities and held that the direction that religions services were to be performed in a Pilliar temple to be built would not make it an invalid bequest. He also referred to the earlier decision in O.S 4 of 1949, which was confirmed by the High Court about there being a valid dedication of the properties to the trust. The learned Judge found that both Veluswami Pillai and Rajammal accepted the office of trusteeship and were trustees. He found that the sale deed relied on by the defendant was not valid and binding on the trust. He also found that the plaintiff had authority, by reason of his appointment as interim trustee, to maintain the suit for recovery of the suit properties. He held that S. 20 of the Madras Hindu Religious and Charitable Endowments Act, 1951, authorised the Commissioner to make such appointments for the purpose of administration of the religious endowment subject to his superintendence and control. In regard to the plea of adverse possession, the learned Judge held that the relevant provision of the Limitation Act is Art. 134(b), that under that Article, a suit to recover possession of properties which have been alienated by the previous manager can be filed within 12 years from the date of death of the alienating manager. In this case Rajammal died in 1956. Therefore, notwithstanding that the alienation to the defendant was on 25th August, 1944, under Art. 134(b) of the Limitation Act, adverse possession against the defendant will run only from 1956 and the suit filed in 1961 must, therefore, be treated as in time.

There was a further plea in the additional written statement filed by the defendant that the question whether a valid trust or endowment was in existence was one within the exclusive jurisdiction of the Deputy Commissioner of the Hindu Religious and Charitable Endowments to enquire into, and a civil suit in respect of such a dispute was barred under S. 93 of Act XIX of 1951. The learned Judge held that the suit was not barred by the above section.

In the result the suit was decreed for recovery of possession. The mesne profits was directed to be ascertained in separate proceedings under O. 20, R. 12 C.P.C The amount of Rs. 4,000 in deposit was also decreed to the plaintiff.

The defendant has appealed against the above decision. Learned Counsel Sri R. Gopalaswami Aiyangar appearing for the appellants has urged, in the first place, that the deed of bequest will not come into operation as the Pilliar temple, in which Nithyaneivedhyam and Ekadasi and Krithigai Ubhyam had to be performed and Brahmins had to be fed, had not been built at any time either by Veluswami Pillai or by Rajammal under the compromise decree. According to him, the bequest in such circumstances, would be invalid and inoperative.

This contention of learned counsel is clearly opposed to the consistent line of authorities dealing with Hindu religious bequests. Bhupatinath Smrithi Thirta v. Ramlal Maitra(1) which is a classical decision on the point, has laid down—

“The principle of Hindu law which invalidates a gift other than to a sentient being capable of accepting it, does not apply to a bequest to trustees for establishment of an image and the worship of a Hindu deity after the testator's death, nor does it make such a bequest void.”

In Mukherjea's Hindu Law of Religious and Charitable Trust, 2nd Edn. it is observed at page 147—

“The view that no valid dedication of property can be made by a will to a deity the image of which is not in existence at the time of the death of the testator is based upon a double fiction, namely, first that the Hindu deity is for all purposes a judicial person and secondly that a dedication to the deity has the same characteristics and is subject to the same restrictions as gift to a human being. The first of these propositions is too broadly stated and the second is inconsistent with the first principles of Hindu Jurisprudence. The provisions of Hindu Law relating to secular gifts are therefore not applicable when the dedication is to the idol……Thus, a dedication to an idol is really a dedication to the deity who is ever present and ever existent, the idol being no more than the visible image through which the deity is supposed specially to manifest itself by reason of the ceremony of consecration.”

Learned counsel for the appellant also referred to the decision of this court in H.R.E Board, Madras v. Rukmini(2) where the following observation is found:

“The control of the Hindu Religious Endowments Board over the endowments of a temple is dependent on the temple being one to which the Madras Hindu Religious Endowments Act applies and the Board has no jurisdiction over the endowments where the temple is clearly non-existent, not temporarily but permanently, and there is no apparent intention of bringing it into existence again.”

This last cited decision must be confined to the facts of that case. The facts showed that the establishment of the temple which had previously existed had completely disappeared and it ceased to be used as a place of public worship at a time long beyond living memory. On those facts, the court observed that the place was incapable of being the subject of a dispute as to whether it was a temple to which the Act applied, and consequently the Board had no jurisdiction to deal with the dispute under S. 84(1) of the Act. Here the question is not of a temple having ceased to to exist but the question is of dedication to a temple which had to be built for a deity as indicated in the deed of trust, and for services to be performed in the temple. That case can, therefore, be clearly distinguished. It appears to us, therefore, that the direction to erect a Pilliar temple in Thillaiyadi village and to perform certain religious and charitable services in connection with the temple will not be a ground for invalidating the bequest. In this connection we may also note that the word used is which according to Tamil Lexicon, Volume I part 1, means ‘gift to a temple or monastery.’

While dealing with the above broad preposition of law, we may also refer to the fact that there is some evidence in this case of the temple having actually come into existence P.W 2 is a permanent resident of Thillayadi village and is the Maniyam of the Sivan Koil in the village. He deposed that there was a Pillaiyar Koil in the Other Theru. It faced south. Now it faces cast. He states:

“Originally the temple was on the eastern side of the street facing south. It was a brick building in a dilapidated condition. The present building is in the same street about 30 ft. away from the old building by the side of the read. Pilliar is now housed in coconut thatched shed. Veluswami Pillai made a vow to build a Pilliar temple, arranged Balalayam and removed the idol from the old building to the new shed. He demolished the old building and laid the foundation for a new building. It was about 40 years ago. He did not proceed with the construction further. The foundation still exists. Pooja was performed during Veluswami's time at his expense. After him, the Pooja is being, performed by the temple at his expense… Veluswami Pillai was also performing Ekadasi Ubhayams in Perumal temple on a large scale and also the Thirukarthikai festival in the Sivan temple’.

It is, therefore, possible as stated by the above witness that Velusami Pillai had, during his lifetime, commenced the construction of the Pilliar temple and was also performing the services, but was not able to complete the building of the temple. It is significant that in his will to his wife, he has clearly referred to the compromise decree and to the fact that the management of the charity mentioned in the compromise decree was being conducted permanently and that the charity should be done by his wife after his lifetime from the income derived from the property set apart for that purpose. Even Rajammal, though she purported to make an allenation of the C schedule properties earmarked in the will for the religious service has referred to the obligation to complete the Pilliar temple. For that purpose, the defendant withheld Rs. 2000 out of the sale consideration, and Rajammal agreed to purchase some other property and offer it as security. This would show that even the defendant, who new challenges the trust, was aware that there was a bequest for charity, in respect of the C schedule properties and that the terms of that bequest had to be preserved. But in making a provision for that purpose, both Rajammal and the defendant had acted contrary to the terms of the dedication. While the compromise decree provided that Rs. 2000 for completing the temple should be found from the sale proceeds of the D schedule properties and that the entire income from the C schedule properties should be utilised for the religious and charitable purpose, they altered the terms of the bequest and effected the sale of the C schedule properties outright, thereby defeating the provisions of the trust. That a part of the sale consideration was set apart for the purpose of meeting the expenses of the charity as mentioned in the second part of the sale deed would hardly suffice to meet the requirements of the religious endowment. That endowment involved a complete dedication of the C schedule properties and the utilisation of the entire income for religious and charitable purposes. But that direction was ignored and the C schedule properties were sold outright.

We will now come to the next point raised by learned counsel for the appellant Sri R. Gopalaswami Iyengar about the jurisdiction of the civil court. According to him, the question whether the suit properties are invested with a trust character, is one which falls under S. 57(d) of the Hindu Religious and Charitable Endowments Act, and, under S. 93 of the Act, the civil court will have no jurisdiction to entertain a suit of that kind, and that relief for that purpose should be obtained from the several provisions contained in the Statute itself. The short answer to this argument is that the present suit is not exclusively for a declaration that the plaint schedule properties are vested in trust. The main relief is recovery of possession of the properties of the trust from the alienee who is a stranger to the trust. The investigation of the trust character of the properties is only incidental to the main relief of recovery of possession. There is ample authority for the view that a suit for relief of such a kind is not barred. In V.L.N.S Temple v. Pattabhirami their Lordships of the Supreme Court observed:

“S. 93 will apply only to matters for which provision has been made in the Act. It does not bar suits under the general law which do not full within the scope of any sections of the Act.”.

In an unreported decision of this court in Choolah Puthiyapurail Kunhall v. Thayoth Puthiyapurail Ayyisomma Rajamannar, C.J observed:

“I think that the dispute referred to in S. 94 is a dispute between the trustee of an institution on the one hand and the Board on the other. In such a case, the Act specially provides that the dispute shall be decided by the Board in the first instance. There is nothing in this decision (Sri Vythilinga Pandarasannadhi v. Sri T. Sadasiva Iyer(3) to countenance the view that even when the dispute is not with the Board, but there is a dispute between two private parties the ordinary civil court has no jurisdiction to decide the dispute, but it is only the Board which is competent to decide it. There is no such express or implied bar of the jurisdiction of the civil court to S. 84 of the Act”.

In Venkatacharyulu v. Harihara Prasd(4) Varadachariar J. observed:

“The bar under S. 73, Religious Endowments Act, is only in respect of suits relating to the administration or management of the trust, i.e, proceedings against the trustee and not in respect of proceedings against the person who is wrongly in possession of the property in which the trust is interested”.

In Hazarimul v. Vedachala a similar view was held by Beasley C.J and Cornish, J.:

“As between a trustee of a temple and other trustees of the temple or as between the worshippers of a temple and the trustees of a temple and the persons interested in the temple when questions of administration of the trust arise, those are matters which come within the scope of S. 73 of the Act. But entirely different considerations apply where the parties are on the one hand trustees of a temple and on the other hand entire strangers who claim to be alienees of property wrongly obtained by them through the maladministration of a trustee. The Madras Hindu Religious and Charitable Endowments Act, particularly, S. 73 does not embrace relief which could not merely have been obtained under the procedure set out in the Civil Procedure Code, S. 92 C.P Code. S. 92 and the corresponding section of the old Code do not apply to suits between trustees of a temple and alienees from a trustee of a temple of trust properties”.

In N. Satyanarayana v. T. Nagiah it is observed:

“If any of the reliefs specified in S. 73(1) is asked for against the trustee or a de facto trustee of a religious endowment, then the sanction of the Board is essential. If, however, a trustee of a temple or of a Kattaiai sues to recover a property belonging to the temple or money payable to the temple by strangers, then consent of the Board is not required under S. 73(1). Such a suit should be maintained in the ordinary civil courts and the jurisdiction of the courts to entertain such suits would be governed by the provisions of the Civil Procedure Code”.

In K. Venkataramana v. Sri Rama Mandiram the learned Judges of the Andhra Pradesh High Court held in a case where the Religious Endowments Board assumed control of the suit temple, appointed the plaintiff as a trustee thereof removing the defendant from the trusteeship and the plaintiff filed a suit for the recovery of the suit properties and the defendant contended that the Civil Court had no jurisdiction to entertain the suit by virtue of the bar created by S. 93 of the Act, that the suit was not barred by S. 93 of the Act and that the civil court had jurisdiction to entertain the suit.

The third point urged by learned counsel for the appellant is that the suit is barred by time and the defendant has perfected title by adverse possession. In our opinion, the lower court is right in holding that Art. 134(b) of the Limitation Act will clearly apply and that the suit is in time. That Article prescribes a period of 12 years for recovery of properties belonging to a Hindu Religious endowment transferred to a third party, and the time limit of 12 years is prescribed for recovery of the property from the date of death or removal from the office of the previous manager. Learned counsel, Sri R. Gopalaswami Iyengar, contended that Article could be relied upon, only if Veluswami Pillai and Rajammal acted as trustees, but if they had failed to act as trustees the Article would not apply. In answer to this we may note that Veluswami Pillai never repudiated the trust in his will. He specifically admitted it. Even when Rajammal was acting contrary to the terms of the trust by selling the C schedule properties, she referred to the provisions of the trust in regard to the building of the Pillar temple and to the performance of the other charities. That apart the Supreme Court in Srinivasa v. Ramaswami has observed:—

“Art. 134-B does not permit any distinction to be made between transfers effected by a previous manager on the basis that the property transferred belongs to the religious endowment and those made by him on the basis that the said property is his own private property. In either case, the successor who challenges the alienation will have to prove that the property in fact belongs to the religious endowment. Once that is proved, it is not necessary for him also to show that the transfer was made on the basis that the property belonged to the religious endowment. Such a limitation cannot be read in the words used by the said Article. Art. 134-B applies, to all cases where it is shown that the immovable property was comprised in the endowment and that it has been transferred by a previous manager for a valuable consideration. The character of the representations made by the previous manager in regard to his relation with the property which is the subject-matter of transfer is irrelevant for the purpose of Art. 134-B. All transfers made would fall within Art. 134-B if the three essential facts are proved by the successor of the transferor manager of the Hindu religious endowment”.

We, therefore, overrule this objection from the point of view of limitation and hold that the suit is in time.

There was a final argument on behalf of the appellant that the plaintiff has no authority to maintain the suit relying upon his appointment as interim trustee. This contention too appears, in our opinion, to be without substance. Under S. 20 of the Hind Religious and Charitable Endowments Act, 1951, the Commissioner has general superintendence and control over religious endowments and such superintendence and control will include the power to pass any orders which may be deemed necessary to ensure that the endowments are properly administered and their income duly appropriated for the purposes for which they ware founded. The present is a clear case where the trust had been neglected and its properties misappropriated by a stranger. The High Court in its earlier judgment has directed the Commissioner to take proper steps for recovery of the properties of the trust. It was in accordance with the power conferred under S. 20 of the Act that the plaintiff was appointed as an interim trustee to take action to recover the suit properties and look after the management of the trust. So far as the present suit is concerned, there is no impediment, therefore, to the plaintiff being granted the reliefs asked for.

The appeal fails and is dismissed with costs of the first respondent. First respondent's advocate's fee Rs. 250 to be drawn out of the amount to the credit of the suit in the lower court.

The appellant claims to have paid a substantial consideration for the property. But unfortunately the sale to him has been set aside on the ground that it was trust property. The present prayer of the appellant is that on equitable considerations the property might be leased out to him by the trust on reasonable terms as to rent and so on. This is a matter, however, for the authorities of the Hindu Religious and Charitable Endowments to consider. The appellant-petitioner herein may mote the Beard who may consider his request sympathetically, in view of the special circumstances mentioned above and the observations in the judgment.

V.C.S