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CASE NO.: Appeal (civil)  1913 of 2004

PETITIONER: Joint Commnr., H.R. & C.E. Administration Department   

RESPONDENT: Jayaraman & Ors.                                                         

DATE OF JUDGMENT: 26/10/2005

BENCH: S.N. VARIAVA,P.K. BALASUBRAMANYAN & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T  

P.K. BALASUBRAMANYAN, J.

                1.              An extent of 10.38 acres of land, which was government  land and situated around four temples, namely, Keelakottai Sri.  Vinayagar Temple, Muthampatti Sri Vinayagar Temple, Mottakottai Sri  Vinayagar Temple and Mariamman and Bhagavathiamman Temples   were set apart by the British Government for the purpose of the use of its  income for the poojas and maintenance of the temples.  The land was put  in the possession of one Veerana Pandaram, who was the poojari.   Respondent Nos. 1 to 7 herein, the descendents of Veerana Pandaram  filed a petition before the Deputy Commissioner, Hindu Religious and  Charitable Endowments, Madurai, under Section 63 of the Tamil Nadu  Hindu Religious and Charitable Endowments Act, 1959 (hereinafter  called the ’H.R & C.E. Act’) praying that they may be declared as  hereditary trustees cum poojaries of the Mariamman and  Bhagavathiamman Temples.  This application was made, when after an  enquiry, a preliminary report was made by the Special Inspector, to the  Assistant Commissioner of H.R & C.E. Administration Department,  Madurai, to the effect that the lands endowed and belonging to the  temples, are being enjoyed by the three poojaries, who render pooja  services.   The poojaries were taking the income, but were not  maintaining any accounts.  As various development works had to be  done in the temple, the lands may be assessed to contribution from the  concerned fasli.  The Special Inspector also suggested that show cause  notices be issued to the poojaries regarding the appointment of trustees  for the temple.  In their application, the successors of Veerana Pandaram  prayed in terms of Section 63(b) of the H.R & C.E. Act, that they and the  three respondents to the said application, may be declared as hereditary  trustees of both the temples, the office as hereditary and them as the  trustees of Mariamman and Bhagavathiamman Temples.  By order dated  4.10.1972, the Deputy Commissioner, H.R & C.E. Department, declared  that the applicants before him are holding the office of trusteeship cum  poojariship of Mariamman and Bhagavathiamman Temples  at  Keelakottai village, Dindigul Taluk, Madurai district hereditarily.    No  declaration was given regarding the rights of the applicants, since no  court fee was paid for the grant of such a relief.  Thus, the successors of  Veerana Pandaram were recognized as trustees of the temples.   Subsequently, the Settlement Tahsildar, Madurai  passed an order on  31.03.1968 for issue of ryotwari pattas for lands  covered by four title  deeds referred to in that order, in favour of the four institutions  represented by respondent Nos. 1 to 7.  The respondents appear to have  belatedly challenged the said order before the Appellate Tribunal.   Neither the deity nor the H.R & C.E. Department was impleaded in the

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appeal which was filed four years after the order of the Settlement  Tahsildar.  That appeal is seen to have been allowed and the matter  remitted for a fresh consideration by the Settlement Tahsildar.  It was  noticed in the order of remand that the H.R & C.E. Department was not  impleaded, and that it was necessary to implead the Department for an  effective adjudication.  In spite of it, it is seen that the respondents did  not bring on record the H.R & C.E. Department or the deity in the array  of parties, before the Settlement Tahsildar.  The order does not also  show that notice was issued either to the deity or to the Department.   That no notice was issued is seen admitted by the respondents before the  High Court of Madras in a revision filed by them against the order  refusing to grant a stay pending a revision filed by them against the  proposal to appoint a fit person under the H.R & C.E. Act in their place.   The said order of the High Court dated 7.6.2002 is annexed as Annexure  P-11 and in paragraph 4 thereof, it is recorded by the learned Judge that :

"The petitioners (the contesting respondents herein)  would further submit that in none of the above  referred proceedings, the H.R & C.E. Authorities were  the parties and that being so, on coming to know that  the petitioners have deposited a sum of Rs. 4,50,000/-  in the name of the four institutions, the second  respondent (Joint Commissioner, H.R & C.E.) has  initiated the proceedings in NK. No.3369 of 2002/A1,  dated 12.4.2002 against the petitioners on the ground  that the sanction as prescribed under Section 34 of the  Tamil Nadu Hindu Religious and Charitable  Endowments Act had not been obtained and by order  dated 12.4.2002, the second respondent has suspended  the petitioners and also directed them to hand over the  charges to the third respondent."

Thus, the mandate in the order of remand was not complied with either  by the descendents of Veerana Pandaram or by the Settlement Tahsildar.

2.              Thereafter, it is seen that the Settlement Tahsildar  proceeded to uphold the claim of the successors of Veerana Pandaram.   But the Settlement Tahsildar  noticed that the claimants did not produce  either the original grants or the extract of the Inam Fair Register, in spite  of the reference to the four title deeds Nos.1049, 1050, 1051 and 1052  said to be in favour of the four institutions represented through the  claimants. He proceeded to hold that the claimants before him were  eligible to get ryotwari patta subject to the condition of rendering service  to the four institutions. Patta was thus granted subject to the conditions  laid down in Section 21(2) of the Tamil Nadu Minor Inams (Abolition  and Conversion into Ryotwari) Act, 1963.

3.              What requires to be emphasized once again, is that the  Settlement Tahsildar  did not see either the original grants in respect of  the lands or the extract of the Inam Register, while directing the issue of  the patta by changing the pattadar from the temples to the claimants and  did not care to insist on the claimants impleading the deities and the H.R  & C.E. Department  as respondents in the proceedings, in spite of the  directions in that behalf contained in the order of remand.  It was clearly  a case of total non-application of mind by the Settlement Tahsildar  amounting to dereliction of duty.  The patta thus granted by him cannot  either affect the rights of the deities or of the temples and cannot bind  them or the H.R & C.E. Department.  Nor can it affect the right of the  worshipping public in these public temples.

4.              The claimants, thereafter, purported to make an application  in the court of the District Judge of Dindigul as O.P. No. 44 of 2001  under Section 34 of the Indian Trusts Act.  Again, none was shown as  the respondent to that petition.  Against respondents, it was said "nil".  

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The District Judge apparently did not even apply his mind to direct the  claimants, the petitioners before him, to implead the deity or the H.R &  C.E. Department especially in the context of the nature of the claim  made by the petitioners before him.  One could even say that the District  Judge apparently did not even read the petition filed before him since in  the petition the claimants had clearly stated even at the threshold:-

"The undermentioned properties were originally the  Government Promboke lands and around the said  properties there are 4 familiar and powerful temples  namely Keelakottai Sri. Vinayagar Temple,  Muthampatti Sri Vinayagar Temple, Mottakottai Sri  Vinayagar Temple and one Mariamman and  Bhagavathiamman Temples .   Since those temples  were not cared and looked after by anybody, to  maintain the said temples and to do poojas etc., the  British Government had rested the said properties in  favour of one Veerana Pandaram, and directed him to  perform poojas, keep the temple and its boundaries  clean and for other incidental purposes out of the  income from the undermentioned properties and thus  he was appointed as a trustee and poojari of the said  temples.  In pursuance of that, the said Veerana  Pandaram had been in possession and enjoyment of  the undermentioned properties and he was doing  pooja, Neivethiyam etc., and keeping the temple clean  and he was also conducting yearly and periodical  function of the temple, out of the income from the  undermentioned properties." (emphasis supplied) He also did not care to notice the further statement that the petitioners  had been in possession and enjoyment of the properties and management  of the temple as trustees and hereditary poojaries. They had also referred  to the original patta being granted in the name of the deities and to the  relevant finding in that order.  He also failed to notice the clear plea that  the petitioners before him were in possession of the properties as trustees  and the further plea that the petitioners are not given any right of  alienation of the properties.  A cursory application of mind would have  induced the District Judge to direct the impleading of the deity and the  H.R & C.E. Department and would also have made him ask himself  whether the application under Section 34 of the Indian Trusts Act was  maintainable at all before him and whether it was in the interests of the  temple to permit the sale of the properties and whether the price for  which it was proposed to be sold, was the prevalent market price or the  price that alone could have been fetched by a sale.  Consistent with this  total lack of application of mind, the District Judge proceeded to allow  the application filed under Section 34 of the Act, not realizing even at  that stage, the need to hear the deity or the H.R & C.E. Department.  By  order dated 10.9.2001, the District Judge allowed the application as  prayed for and permitted the sale of the properties and directed that the  proceeds amounting to Rs. 4,50,000/- be deposited in the State Bank of  India, Dindigul branch in Fixed Deposit.  The claimants promptly sold  the properties under cover of that order.

5.              The Joint Commissioner of H.R & C.E. Administration  Department, Madurai, on coming to know of the order thus passed by  the District Court and the alienation effected, filed a petition under  Article 227 of the Constitution of India in the High Court of Madras on  behalf of the Department after obtaining permission to challenge an  order to which he was not eo-nominee a party.  The Joint Commissioner  questioned the jurisdiction of the District Court to entertain the petition  under Section 34 of the Indian Trusts Act pointing out that it was a  public trust or a charity, certainly a religious trust, and Section 34 had no  application.  He also contended that the alienation was clearly in  violation of the relevant provisions of the H.R & C.E. Act and the order

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passed by the District Judge without notice to the H.R & C.E.  Department was void in law and the District Judge was incompetent to  grant the permission in view of the fact that the provisions of the H.R &  C.E. Act were attracted and the transaction would be hit by Section 34 of  the H.R & C.E. Act.  The High Court, rather surprisingly, without  properly applying its mind to the facts, the conduct of the claimants and  the non-binding nature of the orders passed by the Settlement Tahsildar  or the District Judge, without notice to the H.R & C.E. Department and  to the deities, has upheld the order of the District Court.  By a reasoning  that skirts the issue, the High Court confirmed the order of the District  Court and dismissed the revision filed by the Joint Commissioner.  It is  this order of the High Court that is challenged in this appeal by special  leave.

6.              At the outset, it must be stated that in the absence of the  original grants being produced by the claimants, the grants could not  have been construed by the District Court or by the High Court to decide  upon the nature of the grant.  That apart, it was clearly a case where  orders have been obtained by the claimants without impleading the deity  or the H.R & C.E. Department and the orders so obtained and the patta  thus procured, were not binding either on the deities or on the H.R &  C.E. Department.  Therefore, neither the District Judge nor the Judge of  the High Court could have relied on those proceedings as against the  deities or as against the H.R & C.E. Department.

7.              It is seen that the claimants had got themselves appointed as  hereditary trustees by applying under Section 63(b) of the H.R & C.E.  Act.  They could not thereafter shed their character as trustees of the  temples holding the lands belonging to the temples at a subsequent stage  at least without impleading the H.R & C.E. Department and the deities  and without getting a valid adjudication of their right over the properties.   It is clear that in spite of the necessity for impleading the H.R & C.E.  Department being pointed out, the claimants made no attempt to implead  the H.R & C.E. Department either before the Settlement Tahsildar or  before the District Judge and consequently, the orders passed by the  Settlement Tahsildar and by the District Court were clearly illegal and  not binding on the deities or the H.R & C.E. Department.  The claimants  had, in fact, acted totally without bona fides in an attempt to corner the  properties for themselves or at least to make undue gains for themselves  by selling the properties.  Such action would certainly not bind the  deities or the H.R & C.E. Department.  The High Court, representing the  sovereign as parens patriae ought to have come down on the respondents  herein and ought to have issued directions for the protection of the  properties.   

8.              The grant was of government land.  The grant was, even  going by the case of the claimants, in favour of persons who were acting  as poojaries of the temple, for the purpose of utilizing its income for  poojas and maintenance of the temple.  Even in the extract of the fasil  register, it is shown that the registered name of the inamdar is poojaries  of Mariamman and Bhagavathiamman Temples  and the enjoyers as  Veerana Pandaram and Arunachalam Chetty.  The relation between the  inamdar and the enjoyer is shown as ’Devadayam’ and in the column  regarding details of inam, it is shown as for poojas to God (Sasvatham)  and in the column relating to details of endowment, it is shown that the  income of the land is used by the poojaries for pooja and maintenance of  the temples.  Prima facie, Government land had been dedicated to the  temples by way of grants by the Government.  Even if, the income  therefrom had alone been dedicated to the temples, it would still be a  religious trust or endowment and certainly not a private trust to which  the Indian Trusts Act would apply.  Section 1 of the Indian Trusts Act  itself provides that nothing contained therein applies to public or private  religious or charitable endowments.   The endowment here was certainly  not a private endowment since there is no case that the temples are  private.  The endowment was for a religious purpose, the conduct of

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poojas in the temples and the maintenance of the temples.  Therefore,  endowment was of public property for the benefit of public temples and  the poojaries were constituted the trustees.  They were trustees imposed  with the obligation of spending the income from the properties, for the  poojas and maintenance of the temple.   It was clearly a case of a public  religious endowment and by virtue of Section 1 of the Act, the Indian  Trusts Act would have no application.  Learned counsel for the  respondents tried to argue that the application under Section 34 of the  Indian Trusts Act was maintainable but could not argue that these were  private trusts by reference to any relevant material.  The lands were  government lands and the Government had dedicated the properties or  the income therefrom for the up-keep of public temples.  By no stretch  of imagination, it can be held that it was a private trust coming within  the purview of the Indian Trusts Act.  The District Judge has, therefore,  clearly acted without jurisdiction in entertaining the application under  Section 34 of the Indian Trusts Act.  On this short ground, it has to be  held that the order passed by the District Judge in the application filed  under Section 34 of the Act granting permission to the claimants to sell  the properties is one without jurisdiction.  The High Court was  completely in error in brushing aside this vital aspect while considering  whether the District Judge had acted within jurisdiction in entertaining  the application under Section 34 of the Indian Trusts Act.

9.              H.R & C.E. Act applies to all Hindu Public Religious  Institutions and endowments. This is clear from Section 1(3) of that Act.   A religious endowment or endowment is defined in Section 6(17) of the  Act.  It reads:- "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 service 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)         Any inam granted to an archaka,  service holder or other employee of a religious  institution for the performance of any service or  charity in or connected with a religious institution  shall not be deemed to be a personal gift to the  archaka, service holder or employee but shall be  deemed to be a religious endowment.

Explanation (2) All property which belonged to, or  was given or endowed for the support of a religious  institution, or which was given or endowed for the  performance of any service or charity of a public  nature connected therewith or of any other religious  charity shall be deemed to be a "religious  endowment" or "endowment" within the meaning of  this definition, notwithstanding that, before or after  the date of the commencement of this Act, the  religious institution has ceased to exist or ceased to be  used as a place of religious worship or instruction or  the service or charity has ceased to be performed;                  Provided that this Explanation shall not be  deemed to apply in respect of any property which  vested in any person before the 30th September 1951,  by the operation of the law of limitation."

Section 6(18) defines a "religious institution" as meaning a math, temple

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or specific endowment.  Going by the definition it is clear that the  endowment in question is governed by the H.R & C.E. Act.  Even if one  were to accept the case of the claimants that it was an Inam granted to an  archaka, the same would come within the definition of "religious  endowment" or "endowment" under the Act in view of Explanation (1)  thereto.  Thus, it is clear that the endowment, gift or donation was  governed by the H.R & C.E. Act.  It is in this context that we have to  appreciate the effect of the conduct of the claimants in getting  themselves appointed as trustees by moving under Section 63(b) of the  Act.   Any alienation would, prima facie, be hit by Section 34 of the Act  and even if the case of the claimants were to be taken at face value, the  transaction would be hit by Section 41 of the Act.  In either case, the  permission contemplated by the respective sections was a must and the  District Court lacked jurisdiction to give the permission for sale on an  application under Section 34 of the Indian Trusts Act, that too, without  issuing notice to and hearing the authorities under the H.R & C.E. Act.

10.             The claimants had themselves applied under Section 63(b)  of the H.R & C.E. Act and had got themselves appointed as trustees.   They had themselves held out and accepted that H.R & C.E. Act applies  to the trust concerned.  There is no case that the temples are not public  temples and are not under the control of the H.R & C.E. Department in  terms of H.R & C.E. Act.  At best, the contention is only that the lands  were conveyed in trust not to the temples or to the deities, but to the  poojaries of the temples but with an obligation to utilize the income from  the properties for the poojas and the up-keep of the temples.  This  certainly brought in the H.R & C.E. Act and the control of the authorities  thereunder, even in respect of the administration of the trust by the  claimants.  The claimants were really estopped from raising a contention  that the H.R & C.E. Act had no application or that they did not need the  permission of the Commissioner under the Act for alienation either  under Section 34 or under Section 41 of the H.R & C.E. Act.  The  claimants were disentitled to by-pass the provisions of the H.R & C.E.  Act and to secure an order from the District Judge without notice to the  H.R & C.E. Department by moving an application under Section 34 of  the Indian Trusts Act.  The order thus obtained cannot bind the trust or  the properties, or the deities or the H.R & C.E. Department.  Similarly,  no reliance can be placed on the so-called patta obtained by the  claimants from the Settlement Tahsildar without notice to the H.R &  C.E. Department.   

11.             It was contended that the purchase price had been deposited  in a Fixed Deposit and so long as there is no failure on the part of the  claimants to perform the services which they are liable to perform, there  is no necessity to interfere with the transaction of sale affected by them.   It is seen that going by the prevalent valuation and the market value as  reported, the lands were sold for a meager price or that the sale deeds  indicated only a meager price as consideration for the same with all that  it implies.  Such a transaction is clearly seen to be not in good faith.   That the District Court proceeded to accept the value for which the  property was being sold even without making an enquiry into the market  value that the properties would have fetched at the relevant time while  giving the permission for the sale, is shocking.  The jurisdiction under  Section 34 is advisory.  The Court should have satisfied itself of the need  for sale and the propriety of the sale proposed.  The mere pleas that it  was difficult to protect the property and that there was only meager  income therefrom were by themselves not grounds to direct or permit the  sale.   

12.             It is seen that there has been a clear attempt by the  claimants to over-reach the deities and the authorities under the H.R &  C.E. Act, while managing the properties dedicated for the purposes of  the temple, properties granted and managed by them in their capacities  as poojaries, for the maintenance of the temples.  The attempt has to be  deprecated.

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13.             In the circumstances, we allow this appeal and setting aside  the order of the High Court in Civil Revision Petition (NPD) No. 1684  of 2002 and that of the Principal District Judge, Dindigul in Trust  Original Petition No. 44 of 2001, dismiss Trust Original Petition No. 44  of 2001 filed by the claimants.  Consequently, the permission granted for  the sale would also stand set aside and the sale effected by the claimants  pursuant to such permission will be deemed void and would confer no  right on the purchasers thereunder or on any one claiming under or  through them.  It is also clarified that the revised order of the Settlement  Tahsildar under Act 30 of 1963 and the revised patta granted are not  binding on the deities or on the H.R & C.E. Department.  The appellant  would be entitled to its costs both here and in the High Court.