O.A.No.789 of 2010 and A.Nos.3801 & 3802 of 2010 in C.S.No.930 of 2007 VINOD K. SHARMA., J. O.A.No.789 of 2010: The applicants Sree Kandaswamy alias Sree Muthukumaraswamy Temple and Arulmigu Egambaraesarar Temple have moved this application under Order XIV Rule 8 of the High Court Original Side Rules read with Order 39 Rule 1 of C.P.C. to grant an order of interim injunction restraining the third respondent from alienating, encumbering or otherwise dealing with the property Old No.2/503, New No.242, Mint Street, Park Town, Chennai. A.Nos.3801 of 2010 : The applicants Sree Kandaswamy alias Sree Muthukumaraswamy Temple and Arulmigu Egambaraesarar Temple have moved this application under Order XIV Rule 8 of the High Court Original Side Rules read with Order XXI Rule 90 of C.P.C., to set aside the sale deed dated 18.09.2008 executed by the respondents 1 & 2 in favour of the respondent No.3 and registered s Doc.No.1066 of 2008 on the file of Sub Registrar, Sowcarpet. A.Nos.3802 of 2010 : The applicants Sree Kandaswamy alias Sree Muthukumaraswamy Temple and Arulmigu Egambaraesarar Temple have moved this application under Order XIV Rule 8 of the High Court Original Side Rules read with Order IX Rule 7 read with Sec.151 of C.P.C., to set aside the order dated 01.04.2008 made in O.P.No.930 of 2007. 2 The petitioner in O.P.No.930 of 2007 had invoked the jurisdiction of this Court under Sec.34 of the Trust Act seeking permission to dispose of the property of the Trust. Sec.34 of the Trust Act reads as under: "34.Right to apply to Court for opinion in management of trust property.- Any trustee may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for its opinion, advice or direction on any present questions respectingthe management or administration of the trust-property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal. A copy of such petition shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court thinks fit. The trustee stating in good faith the facts in such petition and acting upon the opinion, advice or direction given by the Court shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee in the subject-matter of the application. The costs of every application under this section shall be in the discretion of the Court to which it is made." 3 This Court in view of the averments made in the petition and the contention raised in the Court allowed the petition and after permission of the Court, the property has been sold to the respondent No.3. 4 The applicants/beneficiaries are third parties to O.P.No.930 of 2007 have filed all these applications. A.No.3802 of 2010 has been moved by the applicants for setting aside the sale on the ground that under the Trust deed, the property disposed of, was for the benefit of the applicants, and thus applicants were necessary party to the original petition, and that the order passed by this Court deserves to be set aside. 5 In support of the contention that the applicant can maintain the application for setting aside the ex-parte order, reliance is placed on the judgment of this Court in the case of M.P.Kanoi and 4 others vs. Mr.Palani Prop. Builders [2001(3) CTC 452] wherein this Court was pleased to lay down as under: "12 It is mainly contended by the respondents 1 to 5 that the present applications are not maintainable since the applicants are not parties to the suit and the suit has ended in passing a decree for specific performance. It is true that only parties to the decree can seek set aside the ex- parte decree normally. But this is noot an absolute rule that third parties to the proceedings cannot seek to implead themselves and have the suit, re-opened or restored. If a party to the suit suffers an ex-parte decree, he can file a petition to set aside the ex-parte decree under the specific Order and Rule of Code of Civil Procedure. But these applications are filed under Section 151 of the Code of Civil Procedure by the third party/applicants/ interveners for getting them impleaded in the suit to contest the suit after setting aside the ex-parte decree obtained by the respondents 1 to 5. It cannot be denied that the applicants have got valid interest in the subject matter of the suit. In fact they have validly obtained sale deeds in respect of the very same property from the competent person, namely the 6th respondent under whom only the plaintiffs have also claim to have obtained agreements of sale." 6 In support of the applications, the learned counsel for the applicants vehemently contended that the reading of the Trust deed shows that the Trust constituted is Charitable Endowment, therefore, provisions of Indian Trusts Act, 1882 are not applicable. Therefore, applications filed were not competent. 7 In support of this, a reference was made to Sec.1 of the Trust Act which reads as under: "1. Short title. Commencement.- This Act may be called the Indian Trusts Act, 1882: and it shall come into force on the first day of March, 1882. Local extent, Savings.-2[It extends to 3*[the whole of India 4[except the State of Jammu and Kashmir] and] the Andaman and Nicobar Islands 5 ; but the Central Government may, from time to time, by notification in the Official Gazette, extend it to 6 [the Andaman and Nicobar Islands] or to any part thereof.] But nothing herein contained affects the rules of Muhammadan law as to waqf, or the mutual relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious or charitable endowments, or to trusts to distribute prizes taken in war among the captors; and nothing in the Second Chapter of this Act applies to trusts created before the said day." 8 It is also the contention of the learned counsel for the applicants that in violation of Sec.34 of Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 which bars the creation of interest beyond the period of five years. Sec.34 of the Tamil Nadu Hindu Religious and Charitable Endowment reads as under: "34 Alienation of immovable trust property:- (1) Any exchange sale or mortgage and any lease for a term exceeding five years of any immovable property belonging to, or given or endowed for the purposes of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution: Provided that before such sanction is accorded, the particulars relating to the proposed transaction shall be published in such manner as may be prescribed, inviting objections and suggestions received from the trustee or other persons having interest shall be duly considered by the Commissioner. Provided further that the Commissioner shall not accord such sanction without the previous approval of the Government. Notes: In sub section (1) of section 34 the second provision inserted by Act 38 of 1998 Explanation: Any lease of the property above mentioned though for a term not exceeding five years shall, if it contains a provision for renewal for a further term (so as to exceed five years in the aggregate) whether subject to any condition or not he deemed to be a lease for a period exceeding five years. (2) When according such sanction, the Commissioner may impose such conditions and give such direction as he may deem necessary regarding the utilisation of the amount raised by the transaction, the investment therof and in the case of a mortgage regarding the same within a reasonable period. (3) A copy of the order made by the Commissioner under this sanction shall be communicated to the Government and to the trustee and shall be published in such manner as may be prescribed. (4) The trustee may within three months from the date of his receipt of copy of the order, and any person having interest may, within three months from the date of the publication of the order, appeal to the Court to modify the order or set it aside. (4-A) The Government may issue such directions to the Commissioner as in their opinion are necessary, in respect of any exchange, sale, mortgage or lease of any immovable property, belonging to, or given or endowed for the purpose of, any religious institution and the Commissioner shall give effect to all such directions. Notes: in sub section (4) the words "appeal to the Government' substituted and sub section (4-A) inserted by Act 38 of 1998. (5) Nothing contained in this section shall apply to the inams referred to in Sec. 41. Notes: The words "the Commissioner" and in sub section (2) the word "it" substituted by Act 39 of 1996." 9 The prima facie contention of the learned counsel for the applicants, is as per the clauses of the Trust deed, the Trust was created for the benefit of the applicants. 10 The Trust deed executed by the Settlor reads as under: 'This deed of Declaration of Trust executed this 20th day of August, One Thousand Nine hundred and Forty three by S.K.Mannar Chettiar, Son of Kuppu Chettiar, a Hindu of the Beri Chetti caste, Yarn  Merchant, aged about 60 years, residing at No.23, Mint Street, Park Town, Madras, hereinafter called THE SETTLOR is as follows:- WHEREAS THE SETTLOR is the absolute owner in possession of House and Ground No.2/503, Mint Street, Park Town, Madras, more particularly described in Schedule I hereunder and hereinafter  called THE TRUST PROPERTY purchased the same under a registered Sale deed dated 12th August, 1943 for a price of Rs.10,750/-. AND WHEREAS THE SETTLOR has out of his personal income been given daily offerings of milk for abishekam and providing for the worship of certain deities on specified days, particularly, set out in schedule II hereunder. AND WHEREAS THE SETTLOR desires to set apart and dedicate the said TRUST PROPERTY for the continued and permanent performance of the said  offerings worship from out of its net rental  income. NOW THIS DEED WITNESSES that THE SETTLOR hereby grants, dedicates, sets apart and settles the said TRUST PROPERTY, namely, No.2/503, Mint Street, Park Town, Madras, more particularly, described in  Schedule I hereunder of the value of Rs.10,750/- upon the Trustees hereinafter mentioned to be held by them in trust for the religious purposes, objects and worship specified in Schedule II hereunder to be carried out and performed by the TRUSTEES in the manner hereinafter appearing. THE SETTLOR shall be the sole TRUSTEE during its lifetime. After his death the trusteeship shall vest in 1. A.Munuswami Chetti, son of Muthu Chetty, residing at No.3, Vengu Chetti Lane, Park Town, Madras, and 2. Muthukumaraswami Chetti, the adopted son of THE SETTLOR who shall be the TWO TRUSTEES and shall be entitled to manage the TRUST PROERTY and to perform the objects of the TRUST. After each of the said TWO TRUSTEES, his eldest male descendant in the male line and falling such descendant the senior most heir of the last holder of the Office of Trustee whether male or female shall be the Trustee. Thus, there shall always be two trustees after THE SETTLOR. The SETTLOR as the 1st TRUSTEE and after him, the Two TRUSTEES for the time-being shall let out THE PROPERTY, collect its rents, pay out of it the taxes and other public charges and effect necessary repairs and apply the net balance of the rental income to the performance of the religious objects specified in Schedule II hereunder. Any surplus remaining out of the net rent collection after performing the said charities  shall be applied in offering of flowers daily to the Eswarar and Amman in Sri Ekambaranathaswami Temple in Mint Street, Park Town, Madras. No part of the said income shall in any case be  utilised by THE TRUSTEE OR TRUSTEES for him or their own use. SCHEDULE I Description of Trust Property House and ground situated on the easternside of Mint Street, bearing Municipal Door No.2/503, bounded on the North by houses owned by Madurai Chetty and Latchumu Ammal, on the West by Mint Street, on the South by a house belonging to Kanswamy Temple and on the East by a house owned by Chinnaswamy Achary, comprised in Collector's Certificate No.5515, bearing Old Survey No.698, and New Survey No.10152, measuring abou 1688 sq.ft. in the Registration Sub District of Sowcarpet, and in the Registration District of Madras-Chengalput, of the value of Rs.10,750/-. SCHEDULE II Items of relgious offerings and worship to be performed by the Trustees: 1. To be performed in Sri Ekambaraeswarar Temple, Mint Street, Park Town, Madras. Rs. (a) Amount to be paid for the Pradesha Utsavam performed once in every fortnight  that is twice a month. Rs.6 4 0 on each occasion. 12 8 0 (b) 3/4the measure (six ollocks) of milk to be given for Abishekam to be done in the morning to Sri Ekambaranathaswami, Amman and Navagraham 11 4 0 2. To be performed in Sri Kandswami alias Sri Muthukumaraswami Temple, Rasappa Chetty Street, Park Town, Madras = measure (four ollocks) of milk to be given daily for Abishekam to be done to Sri Muthukumaraswami. 7 8 0 3. To be performed in Sembadava Pillaiyar alias Sengalaneer Pillaiyar Koil in Mint Street, Park Town, Madras. = measure (four ollocks) of Milk to be given for performing - Abishekam to Sengalaneer Pillaiyar and Subramaniaswami. 7 8 0 ------------ Total: 38 12 0 ------------ IN WITNESS WHEREOF THE SETTLOR hereto has set his hand the Day and Year first above written. Signed and delivered by S.K.Mannar Chettiar, the SETTLOR abovenamed. In the presence of Witnesses: K.Munuswamy, 23, Mint St., P.T.Madras. A.Nandagopal Naidu 20.8.43" 11 The learned counsel for the respondent No.3, vehemently contended that these applications are not bonafide as the respondent No.3 is a bonafide purchaser having purchased the property in pursuance to the permission granted by this Court, and has thereafter made huge investments in developing the property after demolishing the building. It would therefore not be in the interest of justice, at this stage, to interfere with the order passed by this Court. 12 It is also the contention of the learned counsel for the respondent No.3 that the sale consideration available with the trustees which can be claimed by the applicants. 13 The learned counsel for the respondents No.1 & 2 on the other hand vehemently contended that these applications are not competent being not bonafide. The contention of the learned counsel for the respondents No.1 & 2, is that reading of the Trust deed shows, that it is not a religious endowment, but the Trust where property is retained by the Trustees, and only interest on the rental income was to use for performing religious functions. 14 It is also the contention of the learned counsel for the respondents No.1 & 2 that the application to set aside the order passed by this Court is not maintainable under Order XXI Rule 19 C.P.C., as it is not the sale under the Court order, but the sale was effected in pursuance to the permission granted by the Court thus, there was no illegality in the transaction. Furthermore, the applicants have not invoked the Sec.151 of C.P.C. This contention only deserves to be noticed to be rejected. The applicants have invoked the jurisdiction under Sec.151 of C.P.C. for setting aside the order passed by this Court in O.P.No.930 of 2007. 15 The learned counsel for the applicants thereafter placed reliance on the Hon'ble Division Bench judgment of this Court in the case of The Commissioner, H.R. & C. E. (ADMN) Department, Madras 34 vs N.A.Ramasamy Chettiyar and two others [2001(2) C.T.C. 351] to contend that Trust created cannot be said to be a religious endowment as the donor did not divest himself of the property. The Division Bench of this Court was pleased to lay down as under: "9 In order to constitute a specific endowment, it is necessary that the donor should divest himself of the property and in case of dedication to God or to a charity, the amount should be set apart and appropriated towards the specific object. In the absence of divesting of property, there can be no specific endowments. In our case, the documents itself provides for changing the object for which certain funds have been allotted. If the object is changed the allotment of funds to the charities goes. The temple authorities cannot make a demand for performance of these charities since the settlement deed under which certain charities are contemplated, itself provides that the settlors are at liberty to hange the object and nobody else except the Vanika Vaisya Community people of Mannachanallur has got the right to interfere with the internal affairs of the society. The performance of the charities as per the document is an internal affair, in which neither the temple nor others can interfere. Therefore, the temple, in which the charities are to be performed cannot ask for a change or insist upon the performance of the charities and no charge has been creates for the same." 16 The reading of the judgment shows that in the said case there was no specific object of the trust and no amount was set apart for that specific object, it was also stipulated that the object could be changed. Therefore, it was on fact that it was held, that it was not religious endowment. 17 It is not the case in the present case, in any case, it is not a stage to determine whether the Trust can be treated to be a religious endowment. 18 The question for the present is whether the applicants are necessary parties to the petition for sale, as the Trust was created for performing certain ceremonies by the applicants for the benefit of the applicants. 19 Sec.34 of the Trust Act also does not give any such power for sale of the property, but only with regard to opinion, management, etc. 20 In view of the findings recorded herein, A.No.3801 of 2010 is allowed. The applicants are impleaded as parties to O.P.No.930 of 2007 and the order passed in O.P.No.930 of 2007 for sale of property is set aside. O.P.No.930 of 2007 is to be VINOD K. SHARMA., J. vaan decided on merit after giving opportunity of hearing to the applicants herein. 21 Office is directed to carry out necessary correction in the original petition and post O.P.No.930 of 2007 for final hearing on 19.01.2011. The applicants are directed to file counter before the date fixed with advance copy to the learned counsel for the petitioner. 22 A.No.3802 of 2010 to be heard along with main O.P.No.930 of 2007. 23 As the order passed in A.No.3801 of 2010 has created shadow on the title of the respondent No.3 to deal with the property as the absolute owner, O.A.No.789 of 2010 is ordered as prayed for. 13.12.2011 Index: Yes/No Internet: Yes/No vaan O.A.No.789 of 2010 and A.Nos.3801 & 3802 of 2010 in C.S.No.930 of 2007