IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 26.8.2011 Coram The Hon’ble Mr.Justice R.S.RAMANATHAN Second Appeal No.1881 of 1997 and C.M.P.No.18948 of 1997 Ammasai Nadar Appellant/Second Respondent/Second Defendant vs. 1. M.Kannaiyan 2. M.Nagaraj 3. Rangaraj 4. Angappa Gounder Respondents/Appellants/Plaintiffs For appellant : Mr.A.K.Sridharan For respondents: Mr.T.R.Rajaraman, Prayer:- Second Appeal against the judgment and decree dated 22.7.1997 in A.S.No.140 of 1996 on the file of the Principal District Judge, Erode against the judgment and decree dated 18.9.1995 in O.S.No.270 of 1992 on the file of the Sub Judge, Dharapuram. JUDGMENT The second defendant is the appellant. 2. The respondents/plaintiffs filed the suit for framing a scheme and to remove the defendants from the suit property and that suit was dismissed and the appeal filed by the respondents/plaintiffs was allowed and hence, the second appeal is filed by the second defendant. 3. The case of the respondents/plaintiffs was that they belong to Kavara Naidu Eramalayan group and they are the hereditary poojaris of Ellamman Temple situate in Kolathupalayam village and the said temple belongs to the Kavara Naidu Eramalayan community. In the year 1927, one Kaveriammal gave the suit land and the surrounding property https://hcservices.ecourts.gov.in/hcservices/ for the purpose of maintaining the temple and to use the well water for irrigating the coconut trees and eversince that, Kaveriammal and her husband Rangasamy and their heirs were collecting amount from Eramalayan community people and were worshipping the temple in the said land and the said land was given to the temple by Kaveriammal and in the year 1958, Kaveriammal executed a settlement deed in favour of her sister's son Govindaraju Naidu and in that document also, she has mentioned that the suit property belonged to the temple and it was a charitable one and it should not be sold and after the death of Kaveriammal, Govindaraju Naidu was maintaining the temple as well as the coconut trees and was doing the charities in the temple and the building constructed thereon was used by Eramalayan community people as Chathiram and after the death of the said Govindaraju Naidu, his wife leased out the property to the second defendant. Therefore, a suit in O.S.No.235 of 1991 was filed by the villagers against the present defendants and that suit was later withdrawn with liberty to file a fresh suit and the first defendant sold the property to the second defendant and therefore, the present suit was filed for framing a scheme and for removing the defendants from the suit property. 4. The defendants contested the suit stating that the property is the absolute property of the first defendant and the property has nothing to do with the temple and the sale in favour of the second defendant is a valid one and therefore, the present suit filed by the plaintiffs is not maintainable. 5. The Trial Court, after relying upon the judgment in SRINIVACHARIAR v. RAMANUJAM AND OTHERS (1986 (1) MLJ 337), held that there was no dedication of the property to the temple and the document of the year 1958 executed by Kaveriammal only created a charge upon the property for performing certain charities and it is not a religious charity and only for the purpose of giving water, the charge was created and therefore, the sale of that property by Kaveriammal is valid and the second defendant gets the property with a charge created upon the same and the second defendant has to perform the charity and therefore, the suit as framed is not maintainable. 6. The lower appellate court reversed the finding of the Trial Court and held that having regard to the recital in Ex.A9, a document which was filed in the first appeal and the treatment of the properties by the parties, would make it clear that there was a clear dedication to the temple and hence, the property cannot be alienated and the suit filed by the plaintiffs for framing a scheme and for https://hcservices.ecourts.gov.in/hcservices/ removing the defendants from the suit property is maintainable and decreed the appeal. Hence, the second appeal. 7. The following substantial questions of law were framed at the time of admission of the second appeal:- "1. Whether the second suit in O.S.No.270 of 1992 is bad as per the doctrine of estoppel? 2. Whether the present suit O.S.No.270 of 1992 filed by the respondents will lie in view of Section 63 of the Madras Hindu Religious and Charitable Endowment Act, 1959? 3. Whether the lower appellate court is correct in brushing aside the judgment reported in 1986 (1) MLJ Madras Page 337?" 8. Mr.K.Sridharan, learned counsel for the appellant would submit that the lower appellate court, without properly appreciating the contents of Ex.A1 settlement deed executed in favour of Govindaraju Naidu and Ex.A9, erroneously came to the conclusion that the suit is maintainable. According to the learned counsel for the appellant, a reading of the recital in Ex.A1 would make it clear that only a charge has been created and there was no dedication to the temple. He further submitted that even as per Ex.A9, there was no dedication to the temple and in Ex.A9, the suit property was excluded and in the same document, it was stated that a property which was dedicated to the temple was excluded. He further submitted that if Ex.A9 can be construed as if the property has been dedicated to the temple, then the suit is barred under section 63 of the Madras Hindu Religious and Charitable Endowment Act, 1959 and the plaintiffs ought to have filed an application before the Deputy Commissioner and they cannot maintain a suit. He, therefore, submitted that the suit, as framed, is not maintainable and a proper appreciation of recital in Ex.A1 would make it clear that there was no absolute dedication of any property to any temple or charity and only a charge has been created and the Trial Court has rightly relied upon the decision reported in 1986 (1) MLJ 337 and even assuming that a property was dedicated to the temple as held by the lower appellate court, then the suit is barred under section 63 of the Hindu Religious and Charitable Endowment Act. 9. On the other hand, Mr.T.R.Rajaraman, learned counsel for the respondents submitted that the suit is maintainable and the endowment is not a religious endowment and it is not a religious charity and admittedly, the property has been endowed for doing charity and that https://hcservices.ecourts.gov.in/hcservices/ charity was not performed by the defendants and the first defendant sold the property to the second defendant and therefore, the plaintiffs, who are interested in the charities, are entitled to file the suit for framing a scheme and hence, the suit is maintainable and relied upon the decision in RAJEEVALOCHANCHAR, MAHANT OF UTHIRATHI SRIVAISHNAVITE MUTT, SRIPERUMBUDUR AND ANOTHER v. D.RAMACHAR, MADRAS AND ANOTHER (100 LW 672). 10. To appreciate the contention of both the parties, we will have to see the recitals of Ex.A1. In Ex.A1, it has been stated as follows:- "3tJ mapl;lj;jpy; fz;l jh;kj;Jf;fhf ehd; Vw;gLj;jp elj;jp tUk; jz;zPh; ge;jy; jh;kj;jij 3tJ mapl;l brhj;jpd; tUkhdj;ijf; bfhz;L eP jtwhky; bra;J bfhz;L nkw;go jh;kj;jpw;F Vw;gl;l 3tJ Il;l brhj;ij ahbjhU tpy;y';fj;jpw;Fk; cs;gLj;jhky; eP elj;jptuj;jf;fJ /////" ........ "jz;zPh; ge;jy; bfhsj;Jg;ghisak; /// (fpuhkk;) vy;yg;gehaf;fDf;F rk;ge;jg;gl;lJ/ nkw;go jz;zPhge;jy; jh;kj;ij ePa[k; cdf;Fgpd; cd; thhpRfSk; elj;jptu ntz;oaJ/" 11. Therefore, a reading of the recital in Ex.A1 would make it clear that for the purpose of giving water to all people, the charity was created and it is not a religious charity and the charge was created for a secular purpose and the property was set apart for doing the said charity and the restriction was also made that the property shall not be encumbered and the charity must be performed. Even though there was a restriction from selling the property, nothing has been stated about the surplus income that may be available after the performance of the charity. In similar circumstances, this court has held in SRINIVACHARIAR v. RAMANUJAM AND OTHERS (1986 (1) MLJ 337) that when there is no dedication of the property either to a temple or to any trust for the performance of charity and only a charge upon property has been created and the property is capable of division or alienation subject to the performance of the obligation. 12. In this case, though the property was sold by the first defendant to the second defendant, a charge was created upon the property and therefore, the second defendant was bound to perform the charity and that was rightly found by the Trial Court and therefore, the plaintiffs cannot claim any right over the property. https://hcservices.ecourts.gov.in/hcservices/ 13. Further, the lower appellate court relied upon the recitals of Ex.A9 and held that the property is dedicated to the temple. As a matter of fact, Ex.A9 is the sale deed executed by Kaveriammal in favour of Perumal Naidu and others and in that sale deed, the property was excluded and it was further stated that 'you must permit the water from the well to go to the property which was dedicated to the temple'. Therefore, by no stretch of imagination, it can be stated that under Ex.A9,t he suit property was dedicated to the temple and except the suit property, other property was sold by Kaveriammal in favour of Perumal Naidu and others. The recital in Ex.A9 is that the property was given to the temple without mentioning the details about the property dedicated and that recital will not make the suit property as temple property. Further, as rightly contended by the learned counsel for the appellant, if the property has been dedicated to the temple as per Ex.A9, then the suit filed by the plaintiff is not maintainable and it is hit by section 63 of the Hindu Religious and Charitable Endowment Act. 14. According to me a reading of the document, Ex.A1 would make it clear that a charge was created upon the property and if any person purchases the property, he is bound to perform the charity and there is no right available to the villagers to claim any right over the property. Hence, substantial questions of law 2 and 3 are answered in favour of the appellant and according to me, if the property has been dedicated to the temple as held by the lower appellate court relying upon Ex.A9, the suit is barred under section 63 and the lower appellate court has committed an error in not relying upon the judgment reported in 1986 (1) MLJ 337 and as rightly held by the Trial Court, only a charge has been created in respect of the property and the second defendant is bound to perform the charity and the sale in favour of the second defendant is valid. 15. The judgment relied upon by the learned counsel for the respondents viz., 100 LW 672 only dealt with the aspect that when the major part of the income from the properties is not connected with Hindu festival or observance of religious character and it is a case of composite endowment, civil suit is maintainable. In this case, I have already held that only a charge has been created in Ex.A1 and therefore, the plaintiffs have no locus standi to file the suit and even as observed by the lower appellate court, if any dedication is made to the temple, then section 63 is a bar. Therefore, in any event, the suit filed by the plaintiffs is not maintainable. 16. Admittedly, the earlier suit in O.S.No.235 of 1991 was filed by the plaintiffs and that suit was withdrawn with liberty to file https://hcservices.ecourts.gov.in/hcservices/ fresh suit and therefore, the present suit is filed and hence, the present suit is not bad as per the doctrine of estoppel. The first substantial question of law is answered against the appellant. 17. As substantial questions of law 2 and 3 are answered in favour of the appellant and the suit filed by the respondents is not maintainable, the judgment and decree of the lower appellate court is set aside and the judgment and decree of the Trial Court is restored. In the result, the second appeal is allowed. No costs. The connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssk. To 1. The Principal District Judge, Erode. 2. The Sub Judge, Dharapuram. 3.The Section Officer, VR Section,High Court,Madras. +1cc to Mr.A.K.Sridharan, Advocate Sr 53766 +1cc to M/s.T.R.Rajaraman, Advocate Sr 54117 KJ(CO) km/11.11. S.A.No.1881 of 1997 https://hcservices.ecourts.gov.in/hcservices/