IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 23.05.2006 CORAM: THE HON ‘BLE MR. JUSTICE K.MOHAN RAM A.S.No.172 of 1992 The Karthikeya Vanabojanam and Desikar Trust, Madurantakam. Rep. By the Trustee A.K.Rangachari Chengalpattu … Appellant (Plaintiff) -Vs- 1. The Commissioner HR & CE Admn. Department Nungambakkam High Road, Madras – 600 034. 2. The Deputy Commissioner, HR & CE Admn. Department Nungambakkam High Road, Madras – 600 034. … Respondents. Appeal U/s.70 (2) of the TN HR & CE Act 22/1959 against the Judgment and Decree made in O.S.No.88 of 1986 on the file of the Principal Subordinate Court, Chengalpet dated 22.10.1991. For Appellant : Mr. W.C.Thiruvengadam For Respondents : Mr. G.Sugumaran, Special G.P. (HR & CE). - - - J U D G M E N T The unsuccessful plaintiff in O.S.No.88 of 1986 on the file of the Principal Sub-Court, Chengalpet has filed the above appeal. 2. For the sake of convenience, the parties are referred to as per their ranking in the suit. 3. The case of the plaintiff as set out in the plaint is as follows: (i) One Lakshmi Ammal wife of Narashimhachari died issueless leaving the suit properties to be reverted back to the available reversioners in the family and her husband pre- deceased her. On 04.03.1898 her father-in-law Sri. Arunapuram Venkatachariar and her brother Ayanam Srinivasachariar jointly executed a registered deed of declaration of Trust setting apart the suit properties for https://hcservices.ecourts.gov.in/hcservices/ the performance of private Kattalais with a provision for the line of succession to manage its affairs. The founders of the family Trust as trustees were performing the Karthigai Vanabojanam and suitable festivals to Lord Desika in the main shrine situated in Sri Kothandaramaswami Temple, Madurantakam. The Trust deed provides for the line of succession and also earmarks the amount to be spent for the private trust in question. There is no specific mention of any particular Kattalai for Lord Desikar and the choice is left open to the trustees and therefore it cannot be construed as a specific endowment coming under the purview of the Tamil Nadu Hindu Religious and Charitable Endowment Act (hereinafter referred to as the ‘Act’). (ii) It is the further case of the plaintiff that the successors of the founders of the Trust have been performing the Kattalais from and out of the income of the suit properties. At the time of filing the suit Sri A.K.Rangachari and one another as hereditary trustees succeeded to the management of the trust and the management of the private Trust had always been vested with the plaintiff family and the public at large had never interfered with the private trust. The performance of Karthigai Vanabojanam at Mambakkam and the festivals to Lord Desika at Sri. Kothandaramaswami Temple Mathurandagam cannot be construed either as a religious charity or as a specific endowment so as to attract the definition in Tamil Nadu HR and CE Act 22 of 1959. The performance of Karthigai Vanabojanam has been stopped soon after the demise of the founders, but the festivals to Lord Desika is being continued. The plaintiff may change the mode of festival from time to time. (iii) While so, the plaintiff filed O.A.No.48 of 1980 before the Deputy Commissioner HR and CE, the second defendant. By an order dated 31.03.1982 passed therein the plaintiff Trust was declared as a Religious Institution. Against the said order the plaintiff filed A.P.No.12 of 1983 before the Commissioner HR and CE Board the first defendant. But the appeal was dismissed. Therefore the suit in O.S.No.88 of 1986 has been filed under Section 70 of the Tamil Nadu HR and CE Act praying for a decree to set aside the order dated 05.05.1986 passed by the first defendant in A.P.No.12 of 1983 and consequently to declare that the plaintiff Trust is not a religious institution attracting the provisions of HR and CE Act. 4. A detailed written statement has been filed by the first defendant which has been adopted by the second defendant. The averments in the written statement are set out below: (i) The allegation that the plaintiff trust is a family trust is not admitted. No Will or Trust Deed was left behind by Lakshmi Ammal. In the Trust Deed dated 04.03.1898, it is categorically stated that the properties have been endowed for the performance of Thaddiaradanai Kainkaryam in the https://hcservices.ecourts.gov.in/hcservices/ annual Vanamahotsavam of Arulmigu Kothandaramaswamy Temple, Mathurandakam at Mambakkam village and for the performance of the proper charitable Kainkariyams in the Annual Brahmotsavam of Sri Vedantha Desikar in Kothandaramar Temple, Mathurandakam. It is also stated that their successors have absolutely no right on the properties. It is not correct to state that it is a charge on the properties whereas it is a total dedication of the properties. The properties were not set apart for the performance of the family charities with a provision for the line of succession to manage its affairs. The Trust Deed provides that the Patta should be in the joint names of Arulmigu Kothandaramaswamy Temple, Mathurantakam and Trustees. (ii) The Trust created is a “specific endowment” only as defined under Section 6(19) of the Act and it is not a private trust. The performance of Kattalais in a public Temple and the performance of Vanabojanam during the annual Brahmotsavam in a public temple establish the public character of the Trust. There has been no succession in the management. (iii) It is the further case of the defendants that the Trust Deed which was executed only after the demise of Lakshmi Ammal stipulates the performance of both Kainkaryams and the alleged stoppage of the Kainkaryams is not admitted. On the above said pleadings, the defendants sought for the dismissal of the suit. 5. On the above said pleadings, the Trial Court framed the following issues, viz.: i) Whether the declaration declaring the order dated 05.05.1986 passed by the first defendant in A.P.No.12 of 1983 in respect of the suit trust as invalid can be granted? ii) Whether the suit trust is a private family trust? iii) To what relief the plaintiff is entitled to? 6. During Trial, the Trustee A.K.Rangachari has been examined as P.W.1 and one Thiru.Senthamarai has been examined as P.W.2 and Exs.A-1 to A-5 have been marked on the side of the plaintiff. On the side of the defendants, one Smt. P.Sulochana has been examined as D.W.1 and Exs. B-1 and B-2 have been marked. 7. The Trial Court, on a consideration of the oral and documentary evidence adduced in the case, dismissed the suit, upheld the order of the first defendant and held that the suit Kattalai is not a private family Kattalai. Being aggrieved by that the plaintiff has filed the above appeal. 8. Heard Mr. W.C.Thiruvengadam, learned counsel appearing for the appellant and Mr. G.Sugumaran, learned Special Government Pleader (HR & CE) appearing for the respondents. https://hcservices.ecourts.gov.in/hcservices/ 9. Mr. W.C.Thiruvengadam, learned counsel for the appellant submitted that Ayanam Srinivasachari (brother of Lakshmi Ammal) and Arunapuram Venkatachari (father-in-law of Lakshmi Ammal) entered into an agreement Ex.A-1 on 04.03.1898 setting apart Lakshmi Ammal’s property for the performance of two Kattalais and there is no dedication of lands in favour of the Deity. According to the learned counsel, Desikar Uthsavam has to be performed in the month of September every year and no specific item has been indicated in the document, but it is stated “crpjk; nghy; bra;at[k; “ and the appellant is performing “Thirumanjanam” and the amount stipulated is Rs.35/- only. The second item of performance is Vanabojanam to Lord-Kothandaramasamy at Mambakkam Village when the deity is taken on procession in Karthigai month and the amount stipulated is Rs.25/-. The learned counsel further submitted that, (i) there is no absolute dedication. (ii) improvement of the property has to be done by the descendants of the family. (iii)joint Patta to be obtained in the name of Deity and the heirs and hence there is no absolute dedication. The learned counsel further submitted that when there is a specific direction that temple authorities cannot question the performance, the said performance of service will not attract Section 6(19) of the Act. According to the learned counsel, Section 38(1) can be invoked if there is non- performance and the Trust Deed, at best only creates a charge on the suit properties. 10. In support of his contentions the learned counsel relied upon the following judgments, viz., (i) 91 L.W. 337 (D.B.) (R.M.AR.AR.RM AR. Ramanathan Chettiar Vs. The Commissioner of Hindu Religious and Charitable Endowments, Madras and others). (ii) A.I.R. 1974 A.P. 316 : (V 61 C 69) (M.Appala Ramanujacharyulu Vs. M.Venkatanarasimhacharyulu and Others). (iii)2001 (2) C.T.C. 351 (The Commissioner, H.R. & CE (Admn) Department, Vs. N.A.Ramaswamy Chettiar and two others). (iv) 1960 (2) M.L.J. 231 (State of Madras, represented by the Commissioner for the Madras Hindu Religious and Charitable Endowments, Mount Road, Madras Vs. Thuthukudi-Kozhumbu Vyaparikalin Thuthukudi Sri Subramaniaswami Mahimai Paripalana Sangam through its Honourary Secretary). (v) 1952 (1) M.L.J. 282 (The Commissioner of Hindu Religious Endowments Board, Madras Vs. Sri Vinayakar Arudra Tiruppani Sabha). 11. Mr. G.Sugumaran, learned Special Government Pleader (HR & CE) appearing for the respondents submitted that in Ex.A-1 dated 04.03.1898 the authors of the document have absolutely dedicated the properties for the performance of two services namely, (i) performance of Karthigai Vanabojanam i.e. ”nfhjz;luhk RthkpahUf;F tUc& thu fhu;j;jpif khj;j;jpy; khk;ghf;fj;jpy; elf;Fk; tdngh$d cr;rtj;jpy; jjpahuhjid jh;k fhupaj;jpw;fhft[k; “ and https://hcservices.ecourts.gov.in/hcservices/ (ii) performance of festivals to Lord Desikar Shrine situate at Madurantakam Sri. Kothandaramaswamy Temple (which is a public Temple) i.e. “nkw;go njt!;jhdj;jpy; vGe;jUspapUf;Fk; ntjhe;j njrpfh; tUc&thup gpuk;k cw;rtj;jpy; crpjkhd jh;k fhhpa';fis elj;j ntz;oajw;fhft[k; “. The learned Special Government Pleader further submitted that the authors of the document Ex.A-1 have not retained any right over the properties i.e. “nkw;go epy';fis gw;wp ekf;fhtJ. ek;ik rhh;e;j re;jjpfSf;fhtJ ahbjhU ghj;jpaKk; fpilahJ”. According to the learned Special Government Pleader, the above recitals in the document would show that the suit properties have been dedicated absolutely and the property is vested with the temple. The authors and their successors cannot deal with the suit properties. 12. The learned Special Government Pleader referred to Ex.B-1, the Property Register of the Temple maintained as contemplated in Section 29 of the Act and relied upon the entry made at Page. 105 of the Register and submitted that the suit properties and the performance of service had been brought under Ex.B-1 Property Register of the Temple. Therefore, according to the learned counsel, endowment is specific endowment coming under the control of the Department. The learned Special Government Pleader further submitted that the document Ex.A-1 has to be read as a whole and the intention of the authors of the document has to be ascertained and respected. According to him under Ex.A-1, the successors have to perform the charities and the income from the property has to be spent for performance of two charities and for developing the charities and the Patta shall be in the name of Temple and its trustees. 13. The learned Special Government Pleader further submitted that to ascertain the intention of the authors of the document, the document has to be read harmoniously and in support of the said submission, the learned Special Government Pleader relied upon A.I.R. 1963 S.C. 890 and by relying upon the judgment reported in 2000 (2) C.T.C. 559, the learned Special Government Pleader submitted that performing Vanabojanam Dathiyarathanai and performing charity during Bramotsavam of the Temple are specific endowments. 14. The learned Special Government Pleader referred to paragraph 7 of the plaint wherein it is pleaded that performance of Karthigai Vanabojanam has been stopped soon after the demise of the founders of the Trust, but the persons in management of the Trust have been performing festivals to Lord Desikar. The learned Special Government Pleader submitted that though the plaintiff stopped one service namely performance of Karthigai Vanabojanam the properties endowed remained as such and therefore the character of the properties has not been changed and the properties still vest with the Temple as evidenced by Ex.B-2. The learned Special Government Pleader further submitted that the Department can enforce the performance of service under Section 38 https://hcservices.ecourts.gov.in/hcservices/ of the Act. The learned Special Government Pleader relying upon A.I.R. 1966 S.C. 653 submitted that even if the document is construed to create a charge, it will also be a specific endowment. 15. The point for determination in the above appeal is whether there was absolute dedication of the properties as a specific endowment under Ex.A-1 dated 04.03.1898. For deciding the issue in question, the definitions of certain words as given in the Act are relevant: Section 6 (16) “religious charity” means a public charity associated with a Hindu festival or observance of a religious character, whether it be connected with a math or temple or not; Section 6 (17) “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 charity and includes the institution concerned and also the premises thereof, but does not include gifts of property made as service – holder or other employee of a religious institution; Section 6(19) “Specific endowment” means any property or money endowed for the performance of any specific service or charity in a math or temple, or for the performance of any other religious charity, but does not include an inam of the nature described in Explanation (1) to Clause (17). Similarly, the relevant recitals in Ex.A-1 which are necessary for deciding the issue are set out below viz:- “yc&;kp mk;khSk; mts; g[Uc&d; eurpk;khrhhpaUk; re;jjp , y;yhky; ,we;J ngha; tpl;lgoahy; nkw;go eurpk;khrhhpah; nguDk; yc;&kp mk;khs; nguDk; rhRtjhkha; jh;kk; elf;f ntz;oajw;fhf ehk; ,UtUk; Vnfhgpj;J nkw;go Kf;fhy; g';F epy';fisa[k; mjd; kpuhR tifawh rk!; ghj;jpa';fisa[k; nkw;go kJuhe;jfk; fpuhkj;jpbyGe;jUspapUf;Fk; _ nfhjz;luhk RthkpahUf;F tUc& thhp fhh;j;jpif khjj;jpy; khk;ghf;fj;jpy; elf;Fk; tdngh$d cr;rtj;jpy; jjpahuhjid jh;k if';fhpaj;jpw;fhft[k; nkw;go njt!;jhdj;jpy; vGe;jUspapUf;Fk; ntjhe;j njrpfh; tUc& thhp gpuk;k cw;rtj;jpy; crpjkhd jh;kk; if';fhpa';fis elj;j ntz;oajw;fhft[k; ehk; kdg;g{h;j;jpaha; Vw;ghL bra;Jf; bfhz;L tpl;Ltpl;lgoahy; nkw;go epy';fisg;gw;wp ekf;fhtJ ek;ikr; nrh;ej re;jjpfSf;fhtJ ahbjhU ghj;jpaKk; fpilahJ“ “ehsJ njjpKjy; bfhz;L nkw;go epy';fis tUk;go cw;gj;jp bra;at[k; jh;kj;ij rhpahf ghpghydk; gz;zt[k; nkw;go jpU/ tujhrhhpah;. _dpthrhhpahh; ,th;fSf;Fk; ghpah;jk; mjpfhuk; cz;L ” “moapy; fz;l rhj;jD}h; fpuhk tUc&thhp tUk;goapy; rh;f;fhh; jPh;it nghf kpFjpapy; tdngh$d if';fhpaj;jpw;fhf ,Ugj;jp m";R U:gha;f;F mjpfg;glhkYk; J}g;gy; ntjhe;j njrpfh; nfhapy; https://hcservices.ecourts.gov.in/hcservices/ if';fhpaj;jpw;fhf Kg;gj;J m";R U:gha;f;F mjpfg;glhky; bryt[ bra;J tuntz;oajy;yhky; kpFjp tUkhdj;ij tl;of;fp bfhLj;njh my;yJ jFe;j Chpy; epyk; KjyhdJ th';fpnah tpUj;jp bra;J te;J tUk;go Fiwg;gLk; gl;rj;jpy; me;j tUc&j;jpw;F K$gh; bra;J a[f;jhdJ rhukhf jh;kj;ij tpUj;jp bra;a ntz;oaJ/ nkw;go epy';fspy; nkw;go if';fhpa jpl;lj;jpw;F Fiwtha; tUk; gl;rj;jpy; me;j tUc&';fspy; ehnk nkw;go bryt[ bra;J jh;kk; ghpghydk; bra;a ntz;oaJ/ nkw;go epy';fspd; gl;lh nkw;go nfhjz;luhk Rthkpahh;. ntjhe;j njrpfs; ,th;fs; nghpYk; nkw;go jh;k ghpghyfh; ,th;fs; nghpYk; ,Uf;f ntz;oaJ/ nkw;go cw;rt';fspy; ahuhtJ bat;tpjj;jpyhtJ Rzf;fk; nehpl;lhy; nkw;go if';fhpa';fspy; gj;jpf;fhf itj;jpUf;Fk; jh;k gzj;ij bkk;gh;fs; mjpf mgpg;gpuhaj;jpd; nghpy; gHf;fj;jpd;go jh;kj;ij elj;j ntz;oaJ/ nkw;go rhj;jD}h; fpuhk epy';fspy; tUk; tUkhdk; if';fhpaj;jpl;lj;jpw;F Fiwt[gl;lhy; me;j if';fhpaj;jpw;F nyhgJ kpy;yhky; bkk;gh;fs; a[j;jg;go elf;f ntz;oaJ/ ,j;jh;kj;ij gw;wp njt!;jhd jh;k fh;j;jh Kjyhd mjpfhhpfSf;F ahbjhU ghj;jpaija[k; fpilahJ”. 16. The contention of the learned counsel for the appellant is that since the improvement of property has to be done by the descendants of the family and joint Patta has to be obtained in the name of Deity and the heirs, there is no absolute dedication. The learned counsel by relying upon the following recitals in Ex.A-1 namely “crpjk; nghy; bra;at[k;“ submitted that discretion is given to the trustees to perform such Kattalais as they deem it proper and therefore this fact will show that there was no absolute dedication of the properties. At this juncture, the decisions relied upon by the learned counsel in support of his contentions have to be considered. 17. By relying upon the following observations made in 91 Law Weekly 337, viz., “14. It is, therefore, seen that acceptable and cogent material evidencing the intention to dedicate property for the particular purpose followed by an actual divestment or appropriation of the property to the specific object is an essential sine qua non to create an endowment 16. …. From the documentary evidence let in, which as we said remains uncontradicted, we gather the impression that the persons to administer the trust are definite and ascertained individuals belonging to the family of the donor and they are vested with the discretion to utilize the fund for performing the Abhishekam in any Siva temple of their choice. This solitary element would not make it a public endowment”. https://hcservices.ecourts.gov.in/hcservices/ the learned counsel submitted that there is no absolute dedication of the property and there was no actual divestment or appropriation of the property to the specific object to create an endowment. But the above said observations have been made in the context of the factual background of that case. In paragraph 6 of the said judgment the important features of Ex.A-4 which was a material document in that case have been set out and the same reads as follows: “6. … The so-called intention expressed by the donor is vague. There is a discretion vested in the family to spend for such abishekams and the choice is obviously with them to choose any particular Siva temple in any part of our country. Abishekam, therefore, was to be performed only at the behest of the donor for his family members. Ex facie and intrinsically it is not possible for any member of the public including the person in authority or in charge of a particular temple to compel the trustees for the time being in charge of the fund to donate funds. … As no property has been set apart to ensure the continued performance of such worship in a particular temple and as the donor and the members of his family kept for themselves the power to make annual donations to various unnamed Siva temples in the country for the performance of abishekams, the element of a public endowment appears to be absent”. Therefore, the facts of that case are totally different from the facts of the case on hand and hence the above decision is not applicable to this case. 18. The learned counsel relied upon the decision reported in A.I.R. 1974 A.P. 316, wherein it is observed as follows: “4. An endowment can be created by the execution of a deed of dedication by the donor. But however, it must be noted that the mere execution of a deed of dedication without the donor intending to act upon the terms of the deed, would not create a valid endowment. In other words, to constitute a valid endowment, it must be established that the donor intended to divest himself of his ownership in the property dedicated. An endowment may be real or nominal. Whether a particular endowment is nominal or real, is a question of fact depending upon the facts and circumstances of each case. In order to determine whether an endowment is nominal or real, the factors relevant and material are (i) whether, in fact, any endowment has been created or not, and (ii) the conduct of the parties and the surrounding circumstances. Where an endowment has, in fact, been created or a trust came into existence, the subsequent conduct of the parties with regard to the enjoyment of the property settled or endowed, is not very much material.” https://hcservices.ecourts.gov.in/hcservices/ It was submitted by the learned counsel for the appellant that the authors of Ex.A-1 did not intend to act upon the terms of the deed. In the light of the observations made in the above decision, the terms of Ex.A-1 have to be considered. 19. The learned counsel relied upon the decision reported in 2001 (2) C.T.C. 351, wherein in paragraph 9, it is observed as follows: “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 change the object and nobody else except the Vanika Vaisya Community people of Mannachannallur 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 charge or insist upon the performance of the charities and no charge has been created for the same”. From the said observation it could be easily seen that in that case the document itself provided for changing the object for which certain funds have been allotted and if the object is changed the allotment to the funds of the charities goes. In that context, the Division Bench held that the Temple in which the charities are to be performed, cannot ask for a charge or insist upon the performance of the charities and no charge has been created for the same. In this case, Ex.A-1 does not provide for changing the object for which the property has been dedicated and as such the above said decision is not applicable to the facts of this case. 20. The learned counsel relied upon the decision reported in 1960 (2) M.L.J. 231, wherein it is observed as follows:- “In order to constitute a valid 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 dedication can be effectuated orally without any necessity for a written instrument. But a mere credit entry in the account books of the donor https://hcservices.ecourts.gov.in/hcservices/ for a certain charity will not be sufficient to create an endowment unless the amount is set apart and appropriated towards the specific object”. The facts of this case is totally different from the facts of the case on hand and this Court fails to see as to how this decision will help the case of the appellant and in the considered view of this Court, this decision is not applicable to the facts of this case. 21. The learned counsel relied upon the decision reported in 1952 (1) M.L.J. 282, wherein the object of the society has been set out as under:- “The object of the society was given as the conduct of the festival during Margali month on Arudra Nakshatram day in the temple of the said Vinayakar at a cost not less than Rs.150 out of the income which may be derived from the said property. The balance was to be kept as savings and out of the amount saved in this manner other immovable properties were to be purchased. The festival was being performed year after year till the year 1947 when the members of the society met and passed a resolution at a special meeting of the general body altering the object of the society. As altered the object ran as follows”. In the above said background, the Division Bench held that “It cannot be said that there was a specific endowment of the entire or part of the income of the property for a specific religious charity. There was no divesting of ownership even as regards income and there was nothing to prevent the society from changing its objects”. But the facts of that case and the facts of the case on hand are totally different. Ex.A-1 contains clear recitals showing that there was absolute dedication of the property and as such the above said decision is not applicable to the facts of this case. 22. Mr. G.Sugumaran, leanerd Special Government Pleader referred to