IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.10.2011 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MS. JUSTICE R.MALA O.S.A.No.246 of 2008 1.P.Shankar 2.M.K.Palani 3.K.H.Gajendran ... Appellants/ Applicants (Cause title accepted vide order of court dated 17/6/08 made in MP 1/08 in OSA SR 22175/08) Vs. The Advocate General, High Court, Madras-104. ... Respondent/Respondent Original Side Appeal is filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the common order dated 05.03.2007 made in Application No.594 of 2005 in C.S.No.709 of 1948 on the file of this Court. For Appellant : Mr.V.Raghavachari For Respondent : Mr.M.Venugopal Addl. Government Pleader (CS) JUDGMENT R.BANUMATHI,J Being aggrieved by the dismissal of application in A.No.594 of 2005 in C.S.No.709 of 1948 refusing to appoint the Appellants as Trustees of "Thiruvengada Mudaliar Charities", Appellants have preferred this appeal. 2. Creation of "Thiruvengada Mudaliar Charities" and Scheme decree in C.S.No.709 of 1948 [06.10.1950] – Thiruvengada Mudaliar, a pious person had created an endowment by a settlement deed dated 31.05.1944. As per the settlement deed dated 31.05.1944, from the income of the properties endowed, daily poojas should be performed in Chidambaraswamy Madam, Sundara Vinayagar temple and special poojas to be performed on https://hcservices.ecourts.gov.in/hcservices/ Krithigai, New Moon and Full Moon days. During the life time of Thiruvengada Mudaliar, he filed C.S.No.709 of 1948 for framing a Scheme and also seeking permission of the Court for sale of certain item of properties and other reliefs. The High Court, Madras framed Scheme decree in C.S.No.709 of 1948 dated 06.10.1950 for the management and administration of the above Trust properties by the founder and after his life time by a Board of Trustees as per the provisions of the Scheme. 3. Salient features of the Trust:- ➢Thiruvengada Mudaliar who is the founder of the Charities shall be in management of the same as a sole Trustee during his life time. ➢After the life time of founder Trustee, the Charities shall be managed by a body of three Trustees. Trustees will be appointed by Court. ➢After the life time of founder Trustee, first set of Trustees shall be (i) Nilambal Ammal, the second wife of the founder Trustee; (ii) Balanandaswami, the 2nd Plaintiff in C.S.No.709 of 1948; (iii) Ranganayaki Ammal of Vadalur. In filling up of the Trustees, Court shall give preference to (i) the sons of the founder by his second wife and their descendants; (ii) the sons of the founder through first wife and their descendants; (iii) other agnates of the founder. Of the body of the Trustees, the aforesaid Nilambal Ammal shall be the Managing Trustee for her life time. After her, the eldest of the Trustees from the founder's family shall be the Managing Trustee. ➢Trustees shall administer the endowment and as per the Scheme decree any of the Trustees shall be at liberty to apply to Court for necessary direction from time to time in respect of management of the Charities. (underlining added) 4. The genealogy of late Thiruvengada Mudaliar is as under:- Thiruvengada Mudaliar (died) | -------------------------------------------------------------- --------------- | | Meenakshi ammal - 1st wife Nilambal ammal - 2nd wife (died) (died in 1955) https://hcservices.ecourts.gov.in/hcservices/ | | -------------------------------------------------------- ------------------------------------------------ | | | | | | | | Venu- Raja- Jayara- Krishnan Krish- Rukmani K.T.Rama- K.T.Partha- gopal gopal man (died) veni (died) chandran (son) sarathy(son) (died) (died) (died) | = Varalakshmi @ | =Yasoda =Kumuda =Thia- =Kuppu- ------------------------ Mani | (died) (died) garajan samy | | | | | | | Meenakshi @ 2nd Wife | | ----------------- Ramanathan | Pappa (1st wife | | | | | | (son) | died on | | | Pad- Ramani Maheswari [died] | 9.11.2000) | | mavathi | | | | | | No Issues R.Mannappan | | --------------------------------------------------------- | | | | | | | | | | | Veerara- Radha- Palani Dha- Ramani Nava- Hema- | | ghavan krishnan [2nd nala- mani vathy | | (died) Appellant] kshmi (died) | | | | | K.V.Hari- ------------------------------------------------ krishnan | | | | | (died pending P.Shankar Vijaya- Srini- Balasubra- Sachi- appeal) [1st Appellant] lakshmi vasan manian danan- | dam | K.H.Gajendran https://hcservices.ecourts.gov.in/hcservices/ (3rd Appellant) 5. Taking control of endowment by Tamil Nadu HR & CE – Appointment of Fit Person – After the death of Nilambal Ammal, K.T.Ramachandran and his second wife's son Mannappan took over the management in administering the properties. Since there was mismanagement in administering the properties, "Thiruvengada Mudaliar Charities" was brought under the control of Tamil Nadu Hindu Religious and Charitable Endowment [HR & CE] Department and properties of the said Temple and Madam have been brought under the record viz., 1 to 15 Registers maintained as per the provisions of Tamil Nadu Hindu Religious and Charitable Endowments Act and it was approved by the Department on 10.07.1979. Since there was mismanagement of the Trust properties, by Proceedings Rc.1870/88/A3 dated 10.03.1988, the Executive Officer of Arulmighu Renganathsaswamy temple, Mint, Chennai was appointed as Fit Person. One Arumugham who was in the administration of the temple handed over the charge to the Fit Person on 18.01.1990 and as such Fit Person is functioning since 1990. 6. Fit Person has filed number of suits challenging the alienations made by K.T.Ramachandran and Mannappan. After the lapse of 17 years, some of the descendants of Thiruvengada Mudaliar have filed application A.No.594 of 2005 in the Scheme suit [C.S.No.709 of 1948] to appoint them as Trustees to take charge and administer "Thiruvengada Mudaliar Charities" as per the Scheme decree dated 06.10.1950. 7. Case of Appellants is that K.T.Ramachandran and Mannappan were mismanaging the Trust properties and misappropriated the income derived from the Trust properties. According to Appellants, HR & CE Department ought not to have appointed the Fit Person in derogation of the Scheme decree framed in C.S.No.709 of 1948, when the legal heirs and descendants of late Thiruvengada Mudaliar are available to be appointed as Trustees. Appellants who are the descendants of late Thiruvengada Mudaliar have no notice of appointment of Fit Person. Alleging that Fit Person has no locus standi to represent the Trust and administer the properties and that the said appointment of Fit Person is totally in derogation with the Scheme of Sri Chidambaraswamy Madam, Appellants prayed to appoint them as Trustees of "Thiruvengada Mudaliar Charities". 8. Opposing the application, HR & CE Department filed counter stating that Fit Person was appointed on 10.03.1988 and the same cannot be questioned after a period of 17 years. It was further stated that after the enactment of Tamil Nadu HR & CE Act, 1959, power is vested with the Joint Commissioner to modify a Scheme settled in any Court in the interest of proper administration of Institution and therefore, the application is not maintainable. 9. Upon consideration of the rival contentions, learned single Judge held that Fit Person was appointed by HR & CE Department as early https://hcservices.ecourts.gov.in/hcservices/ as on 10.03.1988 and that Appellants were mute spectators to the administration of the Trust properties by the Fit Person and their conduct will amount to acquiescing the action taken by the HR & CE Department. Learned Judge further held that since there is a specific endowment by the founder of the Trust, provisions of Tamil Nadu HR & CE Act will apply and Sections 63, 64 and 118 of the Act will hold the field and that as per Section 118 (2) (b) (ii), Schemes framed originally by the High Court the competent Authorities under the Act are empowered to modify the Scheme. Observing that application [A.No.594 of 2005] is not maintainable and that Appellants have to approach the Authorities under the Act, learned Judge dismissed the application. 10. Challenging the impugned order, Mr.V.Raghavachari, learned counsel for Appellants has contended that in Clause 18 of the Scheme decree there is a specific direction to the Trustees to approach the Court for management of the property and while so, appointment of Fit Person by HR & CE Department is in derogation of the Scheme decree. It was further contended that the Commissioner, HR & CE Department had no jurisdiction to appoint a Fit Person and Court could incidentally go into the competence of the Commissioner and declare that the orders made without jurisdiction as nullity. It was further argued that Arulmighu Avathutha Chidambaraswamy Madam and Sundara Vinayagar Devasthanam do not fall within the purview of Tamil Nadu HR & CE Act and the order of appointment of Fit Person is null and void. 11. Mr.M.Venugopal, learned Additional Government Pleader [CS] has contended that even though originally a Scheme was framed by the High Court in 1948, after the enactment of Tamil Nadu HR & CE Act, 1959 under Section 118 (2) (b) (ii) of the Act, power of modification is now vested with the statutory Authorities under the Act. Learned Additional Government Pleader would further submit that under Section 64 of the Act framing of a Scheme of administration and modification of Scheme framed by the Court including the High Court is vested with the concerned Joint Commissioner and the above position is also confirmed by the Hon'ble Supreme Court in 1998 (6) SCC 643 [T.Lakshmikumara Thathachariar v. Commissioner, H.R.C.E. and others] and in view of the above, application filed by the Appellants in the High Court is not maintainable and the learned Judge has rightly dismissed the application. 12. Admittedly, for management and administration of the Trust properties and performance of poojas and Charities, High Court has framed Scheme decree in C.S.No.709 of 1948 dated 06.10.1950. As per the Scheme decree, after the life time of founder Trustee-Thiruvengada Mudaliar, his second wife Nilambal Ammal shall be the Managing Trustee for her life time. Even according to the Appellants, K.T.Ramachandran, son of Thiruvengada Mudaliar through his second wife Nilambal Ammal and Mannappan, son of K.T.Ramachandran were in https://hcservices.ecourts.gov.in/hcservices/ administration of the Trust properties; however, Appellants have alleged that K.T.Ramachandran and Mannappan have mismanaged the Trust properties. 13. Tamil Nadu HR & CE Act 22 of 1959 came into force with effect from 19.11.1959. As per Section 1 of the Act, it applies to all "Hindu Public Religious Institutions" and "Endowments". Since there was mismanagement of "Thiruvengada Mudaliar Charities", the temple and Madam have been brought under the record viz., 1 to 15 Registers maintained as per the provisions of Tamil Nadu HR & CE Act and it was approved by the department on 10.07.1979. As pointed out earlier, in view of the mismanagement of the Trust properties and on the basis of the policy decision taken by the Government to appoint Fit Person to all Institutions under the control of HR & CE Department, the Executive Officer of Arulmighu Renganathaswamy temple, Mint, Chennai was appointed as Fit Person in the place of Trustees for Arulmighu Avathutha Chidambaraswamy Madam and Sundara Vinayagar Devasthanam by the Assistant Commissioner, HR & CE Department under Section 49 (1) of the Act by Proceedings Rc.1870/88/A3 dated 10.03.1988. 14. Even though Appellants have alleged that Fit Person had no right to take over the Trust properties, Appellants have not challenged the appointment of Fit Person for more than 17 years. Appellants have thus acquiesced in the act of HR & CE Department in appointing the Fit Person. 15. Learned counsel for Appellants mainly contended that when the High Court has framed the Scheme, HR & CE Department ought not to have appointed the Fit Person in derogation of the Scheme decree framed by the High Court when the legal heirs and descendants of Thiruvengada Mudaliar are available to be appointed as Trustees of "Thiruvengada Mudaliar Charities". It was further submitted that the competence of the Commissioner to appoint Fit Person in derogation of the Scheme decree could be incidentally gone into by the High Court and declare the appointment of Fit Person as nullity. Contending that the order passed by the Authorities without jurisdiction can be declared as invalid, learned counsel for Appellants placed reliance upon (1995) 5 SCC 159 [Karnal Improvement Trust, Karnal v. Parkash Wanti (Smt) (Dead) and another] and AIR 1960 Rajasthan 105 (V 47 C 27) [Badridass Kanhaiyalal and another v. Appellate Tribunal of State Transport Authority, Rajasthan and others]. The above contention cannot be countenanced. Further, the decisions relied on by the learned counsel for the Appellants are of no assistance to the case on hand. 16. Even though originally Scheme was framed by the High Court in C.S.No.709 of 1948 dated 06.10.1950, after the enactment of Tamil Nadu HR & CE Act, 1959 and as per Section 118 (2) (b) (ii) of the Act, the modification or cancellation power is now vested with the statutory https://hcservices.ecourts.gov.in/hcservices/ Authorities under the Act. 17. Section 118 (2) (b) (ii) of Tamil Nadu HR & CE Act, 1959 reads as under:- " all powers conferred and all duties imposed by such scheme on any Court or Judge or any other person or body of persons not being a trustee or trustees or an honorary officer or servant of the religious institution or endowment, shall be exercised and discharged by the Commissioner, the [Joint Commissioner or Deputy Commissioner] or the Assistant Commissioner, as the case may be, in accordance with the provisions of this Act." After Tamil Nadu HR & CE Act 19 of 1951 came into force, the Court cannot frame any Scheme in respect of administration of "religious charity" or "religious endowment". The Scheme framed are settled by Court is not outside the purview of Section 118 of Tamil Nadu HR & CE Act. 18. As per Section 64 of the Act, framing of Scheme of administration or modification of Scheme is vested with the concerned Joint Commissioner or Deputy Commissioner. The above position is also confirmed by the Hon'ble Supreme Court in (1998) 6 SCC 643 [T.Lakshmikumara Thathachariar v. Commissioner, H.R. & C.E. and others]. In the said case, a Scheme for the administration and trusteeship of Devarajaswamy Temple at Kancheepuram was originally settled under Section 92 of CPC in 1909 by the Madras High Court, although the application for that purpose had been filed under Section 539 of CPC, 1882. The said scheme was subsequently modified under the Madras Hindu Religious Endowments Act, 1926 by the Madras High Court in 1941. In the year 1982, the Deputy Commissioner of Hindu Religious and Charitable Endowments initiated proceedings under Section 64(5) of the T.N. Hindu Religious and Charitable Endowments Act, 1959 for modification of the scheme settled by the Madras High Court in 1941. The appellant therein contended that the Deputy Commissioner had no jurisdiction under Section 64 (5) of the Act to modify a scheme originally framed under Section 92 CPC by the Madras High Court. 19. In the said case, the Supreme Court held that power of Deputy Commissioner to modify a scheme extends to modification of a scheme framed under Section 92 of CPC, 1908 by the High Court also. In Paragraph (16), the Supreme Court held as under:- "16. .... The schemes which were framed by the courts under earlier legislation were schemes which were capable of modification or cancellation in accordance with law even under the legislation under which such schemes were framed. While repealing the earlier legislation when the new legislation came into force, the power to modify and cancel such schemes was expressly transferred under the new legislation to the authorities specified therein. ....." https://hcservices.ecourts.gov.in/hcservices/ Referring to the above decision [(1998) 6 SCC 643 T.Lakshmikumara Thathachariar v. Commissioner, H.R. & C.E. and others], the learned Judge has rightly held that application [A.No.594 of 2005] filed by the Appellants in C.S.No.709 of 1948 is not maintainable. 20. In (1977) II MLJ 188 [M.Krishnaraju Chetty v. The Commissioner of HR & CE Board, Nungambakkam, Madras-34], the Division Bench of this Court held that the words "any Court" employed in Section 118 (2) (b) (ii) will include the High Court and the words "any judge" will include a judge of the High Court. By virtue of the above said section 118 (2) (b) (ii), the burden and responsibility of Civil Courts are taken away and they are passed on to the Authorities functioning under the Tamil Nadu HR & CE Act, for the specific purpose of governing and administering the religious and charitable endowments. 21. Learned counsel for Appellants then contended that as per the Scheme decree, preference ought to have been given to the descendants of founder Trustee and while so, appointment of Fit Person in derogation to the Scheme decree framed is a nullity. It was further argued that before appointment of Fit Person, no notice was given to the Appellants. As rightly pointed out by the learned Judge, Appellants have chosen to raise objection after 17 years of appointment of Fit Person. It is quite unbelievable that Appellants were not put on notice about the appointment of Fit Person way back in 1988. 22. Section 52 of the Act deals with non-hereditary Trustees holding office on the date of commencement of the Act. Section 53 of the Act deals with power to suspend, remove or dismiss the Trustees. Section 54 of the Act deals with filling up of vacancies in the offices of hereditary Trustee. As per Section 54 (3) where there is mismanagement, the Joint Commissioner or the Deputy Commissioner may appoint a Fit Person to perform the functions of the Trustees of the Institution. As per Section 54 (4), any person aggrieved by an order of the Joint Commissioner/Deputy Commissioner as the case may be, made within one month from the date of receipt of the order by him, appeal against the order to the Commissioner. As rightly held by the learned Judge, if the Appellants are aggrieved by the order of appointment of Fit Person, the Appellants ought to have worked out their remedy before the competent Authority of HR & CE Department. Propriety of the order of appointment of Fit Person cannot be gone into by this Court. 23. Learned counsel for Appellants contended that distribution of conjee (gruel) to the poor to more than 50 persons daily is in the nature of "kattalai – charitable endowment" and not a "religious charity" or "religious endowment" within the meaning of Sections 6(16) and 6(17) of Tamil Nadu HR & CE Act. It was further argued that the Scheme decree in C.S.No.709 of 1948 does not contemplate "religious charity" or "religious endowment" and it is only a "public charity" and therefore, the provisions of Tamil Nadu HR & CE Act are not applicable and appointment of Fit Person by the HR & CE Department is illegal and https://hcservices.ecourts.gov.in/hcservices/ non-est. Learned counsel for Appellants would further submit that clauses "c" and "d" of Schedule-II in the Scheme decree are not "religious charity" or "religious endowment" within the meaning of Section 6(16) and 6(17) of the Act. 24. Learned Additional Government Pleader has submitted that dedication of properties is specific i.e. for the purpose of pooja and Naivedya for Sundara Vinayagar temple and special pooja on Krithigai, New Moon and Full Noon days and distribution of food to the pilgrims on Thaipoosam day every year at Vadalur in two Ashrams, would certainly make the Trust as a "religious charity" and therefore, the provisions off Tamil Nadu HR & CE Act are applicable. 25. Section 6(16) of HR & CE Act defines "religious charity" as under:- "religious charity" means a public charity associated with a Hindu festival or observance of a religious character, whether it be connected with or math or temple or not". 26. Section 6(17) of HR & CE Act defines "religious endowment" as under:- "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 archaka, service-holder or other employee of a religious institution. Explanation 1. .............." 27. According to the definition of "religious charity", there must be a public charity and that charity must be associated with a Hindu festival or observance of a religious character. In (2003) 3 MLJ 122 [Kalia Pillai (died) V.Kathayee Ammal Dharmam (Charities), Thiruvannamalai], the Division Bench of this Court held that " .... a religious charity which is a public charity associated with a Hindu festival or observance of a religious character. It may or may not be connected with a math or temple". 28. In 1996-2-L.W. 139 [A.Semmalai Gounder and others v. The Commissioner, Hindu Religious and Charitable Endowments, Madras-34 and another], it has been held that "performing Annadhanam on Thaipoosam day in a private place is a religious endowment". In (2000) 3 MLJ 23 [The Commissioner, H.R. & C.E., Madras v. C.V.Sudharsan and another], the Division Bench of this Court held that "the founder of the Charitable had created a specific endowment for the performance of the "Thatiarchanai Service" to "Desanthris" in "Perumal Temples" in Chennai and the said endowment will definitely comes within the purview of the https://hcservices.ecourts.gov.in/hcservices/ Act. It is not a private trust. ...". 29. Whether the "religious endowment" is a private or public has to be examined on the proved facts of each cases. In the light of the above well settled principles, objects of the Trust in the case on hand has to be examined. The objects of the Trust as per the Scheme decree indicated in Schedule-II read as under:- ➢Maintenance and upkeep of Sri Chidambaraswamy Madam; daily pooja and Naivedya and special pooja, Naivedya and Aradhana on Krithigai, New Moon days every month and other festival days of the year fixed by the Trustees and the Guru pooja once in every year for Sri Chindabaraswamy Madam. ➢Daily pooja and Naivedya for Sri Sundara Vinayagar and Navagrahams in Sri Sundara Vinayagar temple and special pooja, Naivedya and Aradhana on Krithigai, New Moon and Full Moon days and other festival days of the year fixed by the Trustees. ➢Distribution of Conjee (gruel) to the poor for not more than 50 persons daily at No.8, Ammaiyappa Mudaly street, Old Washermanpet, Chennai or at Chidambaraswamy Madam. ➢Distribution of food to the pilgrims and the poor on the Thai Poosam day every year at Vadalur in the two Ashrams to be constructed on the land situated in Parvathipuram village, Cuddalore Taluk and the Ashrams have to be properly maintained. By reading of Schedule-II of the Scheme decree, it is clear that daily "Pooja and Naivedya" for Sundara Vinayagar and Navagrahams are to be performed and also special Pooja and Naivedya on special occasions like Krithigai, New Moon and Full Moon days. Distribution of food to the pilgrims and poor on Thaipoosam every year at Vadalur in two Ashrams is also one of the object of the Trust. Celebration of pooja coupled with distribution of conjee (gruel) to the poor and also feeding the pilgrims and poor on Thaipoosam day clearly shows that it is "religious charity" and "religious endowment" certainly attracting the provisions of Tamil Nadu HR & CE Act, 1959. 30. It is a specific endowment as the properties are dedicated for the purpose of special pooja in Sundara Vinayagar temple and Naivedya thereon and also on special occasions and also distribution of food to the pilgrims on Thaipoosam day at Vadalur. In 1999 MLJ (Supp.) 506 [The Commissioner, HR & CE (A) Department, Madras v. The entire body of Vellala Samudhayam in Nadutheru, Parakkai, Parakkai village Agastheeswaram Taluk, Kanyakumari District represented by its Trustees and others], it has been held that "endowment mainly created for doing public charities connected with temples especially during Panguni festival is a specific endowment". https://hcservices.ecourts.gov.in/hcservices/ 31. Laying emphasis upon the "guru pooja" to be celebrated once in a year for Sri Chidambaraswamy Madam, the learned counsel for Appellants contended that the word "samathi" was introduced in the definition of Section 6(18) – "religious institution" and