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CASE NO.: Appeal (civil) 9493  of  1995

PETITIONER: SRI SINGAM CHETTY ATTENDROOLOO & ORS.

       Vs.

RESPONDENT: THE STATE OF TAMIL NADU & ORS.

DATE OF JUDGMENT:       25/04/2001

BENCH: S. Rajendra Babu & S.N. Variava

JUDGMENT:

S. N. VARIAVA, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   This  Appeal is against a Judgment dated 20th September, 1990.  Briefly stated the facts are as follows:

   Sometime  in 1899 one Shri Singam Chetty  Vakulabharanam Chetty registered a Deed of Settlement.  For the purposes of this Appeal Clause 7 of this Deed of Settlement is relevant. It reads as follows:

   "7.   From  the  rents of landed properties  from  which incomes  are  derivable  and  from the  interest  and  other incomes,  the  charges for the repair of houses  and  landed properties,  taxes, etc., establishment and other  expenses, the  permanent expenses mentioned in list E and the expenses mentioned in list G shall be deducted every year, and out of the balance money, 20 per cent, shall be held in reserve and the  residue  shall  be utilized from year to  year  as  the Trustees  deem fit, for the repair of the houses of Tengalai Vaishnavas,  devotees ascetics, pious men, preachers and the poor,  who live in Vaishnava sacred places and other  sacred places,   their   food,   education,   thread   investiture, marriages,  and for the education of the poor and the  young among  us Vaisyas.  If, however, the income be less than the expenses mentioned in the said lists E and G such deficiency shall  be met from the reserve of 20 per cent, set apart  in previous years and even if that reserve be exhausted all the other  items  of  expenses  for charity,  etc.,  except  the expenses  for  the  worship  of the  family  idols  and  for lectures  shall  be adjusted from time to time according  to the income."

   List  E contained various donations of specific amounts, some  of which were of a religious character and the  others of  secular  and  charitable character.   List  G  contained donations  to  individuals.   On  10th  December,  1947  the Endowment  Board  passed  an Order under Section 77  of  The Hindu  Religious  and  Charitable   Endowments  Act,   1927. (hereinafter  called the Act).  The Order was to the  effect that  50  per  cent of the income of the Trust  should  form

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religious endowment to which the provisions of the Act would apply.  Section 77 of the said Act reads as follows:

   "77.   (1) Where an endowment has been made or  property given for the support of an institution which is partly of a religious  and  partly  of a secular character  or  for  the performance  of any service or charity connected  therewith, or

   where   an   endowment  made  or   property   given   is appropriated partly to religious and partly to secular uses, the  Board  may  notwithstanding anything contained  in  the Madras  Endowments and Escheats Regulation, 1817,  determine what  portion of such endowment or property or of the income therefrom  shall  be  allocated  to  religious  uses.   Such portion  shall  thereafter  be  deemed  to  be  a  religious endowment  and  its administration shall be governed by  the provisions of this Act.

   (2)     Any party affected by an order under sub- section (1) may within such time as may be prescribed apply to the court to modify or set aside such order but, subject to the result of such application, the order of the Board shall be final."

   No  application  was made to any Court to modify or  set aside this Order.  Thus the Order became final.

   In  1951  the  Act  was amended.  In  the  amended  Act, Section 57(g) was in terms identical to the old Section 77.

   As  in  spite of the said Order the Appellants  had  not complied with the directions in the said Order, a notice was issued  to  them on 15th March, 1952.  The  Appellants  then filed  Application  No.   75  of   1952  before  the  Deputy Commissioner.   The  prayer  in this  Application  reads  as follows:

   "(8) It is therefore prayed that the Deputy Commissioner be  pleased to hold that the endowments covered by the trust would  not come under Section 57 (g) and that the petitioner be  permitted to administer and carry out the endowments  in the  trust  deed  as  per provisions made  therein  and  the directions  made  in  the order of the  Deputy  Commissioner dated  15-3-1952 be modified in the light of the  provisions of  the  present  Act  and in  view  of  the  representation aforesaid."

   The   Deputy  Commissioner  by   his  Order  dated  13th September,  1952  held that the directions given by  him  on 15th  March, 1952 were in pursuance of the Order dated  10th December,  1947.   It  was held that that order  had  become final.   It was held that the only remedy of the Appellants, if  any,  was  to file a Petition to  the  Government  under Section 103(b) of the Act.

   The   Appellants  then  filed  an  Application  to   the Government  under  Section  103(b).  By an Order  dated  2nd January,  1954  that  Application   was  rejected  as  being time-barred.   It  was, however, mentioned that  the  Deputy Commissioner  could  be  moved  afresh for  an  Order  under Section 57(g) of the Act.

   The  Appellants then moved the Deputy Commissioner under Section  57 (g) by way of Application No.  55 of 1954.  Even

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in this Application no challenge was made to the Order dated 10th September, 1947.  The only prayer was as follows:

   "  (14) The Petitioners therefore pray that this Hon’ble Deputy  Commissioner  will be pleased to hold (a)  that  the charities enumerated in question in question in Schedule "E" to  the  trust deed have to be carried out with the  amounts provided  for  therein,  to be adjusted if need  be  at  the discretion  of the trustees in the contingencies set out  in para  7  of  the  Trust Deed, and (b) to  declare  that  the endowments do not come within the perview of Sec.  57(g) and that  the allotment of 50 per cent of the income is  illegal and  do not binding upon the trust and to pass such  further or   other  orders  as  are   just  and  necessary  in   the circumstances.  "

   By  an  Order dated 25th June, 1954 the Application  was dismissed on that ground that the Deputy Commissioner had no power  to sit in Appeal over an order passed by the  earlier Board.   An  Appeal against this Order was dismissed by  the Commissioner on 27th October, 1954.

   The  Appellants then filed Suit No.  245 of 1955 in  the City  Civil Court at Madras.  In this Suit they prayed  that the  Order  dated 27th October, 1954 be set aside as it  was ultra-vires  the  Hindu Religious and Charitable  Endowments Act,  1951.   This Suit was decreed on 20th November,  1959. The  Commissioner  filed an Appeal before the High Court  of Madras.  By a Judgment dated 5th August, 1969 the Appeal was allowed and the Suit was dismissed.  In this Judgment it has been  held  that the Deputy Commissioner was right  when  he held that he had no jurisdiction to sit in an Appeal over an order  passed by the earlier Board.  It was held that  Order had  become final.  It was held that the question whether or not  there was outright devolution of property for religious and  secular purposes was not free from doubt.  It was  held that  in  1947 a bonafide dispute had arisen.  The  Judgment ends with the following observations:

   "We  are  not mentioning any opinion as to  whether  the plaintiffs  can  agitate  for their  relief  in  independent proceedings for vacating the order of the Board.  It will be open to them to take appropriate proceedings for the purpose if they are so advised."

   Basing their case upon these observations the Appellants then  filed  Suit No.  32 of 1970 praying for an  injunction against  the  Board  from interfering with  the  Trust,  its administration  and  control, either by themselves  or  from their  Officers under the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 or the earlier Acts.   An injunction was also prayed against defendants  on that  ground  that the previous Acts of the defendants  were void  and  without  jurisdiction.  Thus now, for  the  first time,  in an indirect method, the Order dated 10th December, 1947  was being challenged.  To be noted that it had already been  held by the earlier Division Bench, in its Order dated 5th  August,  1969, that a bonafide dispute had  existed  in 1947.   It  had  also been held that the  Order  dated  10th December, 1947 had become final.  The earlier Division Bench had  thus  held  that  the Order of  the  Board  dated  10th December, 1947 was with jurisdiction.

   The learned single Judge thus dismissed the Suit on 10th

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September,  1979.   The Appeal as against that Judgment  was dismissed  by  the impugned Judgment dated  20th  September, 1990.

   Mr.   Parikh assailed the Orders on the ground that  the Order of the Board dated 10th December, 1947 was without any jurisdiction.   He submitted that the Board could only  have passed  an  order  provided Section 77 of the 1927  Act  was applicable.   He  submitted  that for Section 77  to  become applicable  there  should be an endowment made  or  property given  for  support of an institution which was partly of  a religious  and partly of a secular character.  He  submitted that  in this case there was no endowment to any  particular institution.  He submitted that therefore Section 77 did not at all apply and the Board had no jurisdiction.

   It  was  next  submitted that in any event the  Deed  of Settlement   made   specific   contributions  for   specific purposes.   It was submitted that where specific  endowments have  been  made for specific purposes Section 77 would  not apply.  It was submitted that Section 77 would only apply if an  general  endowment was made or property given  and  that endowment  or  property  was used partly for  religious  and partly  for secular purposes.  It is submitted that for this reason also Section 77 would not apply.

   The  challenge to Order dated 10th December, 1947,  made at  such  a belated stage, could only be sustained  provided the  Order  was without jurisdiction.  The question  whether the  Order was without jurisdiction had already been decided against the Appellants by Order dated 5th August, 1969.  The first  portion  of  Section 77 undoubtedly  talks  about  an endowment  made  or  property  given   for  support  of   an institution.   But that is not the only provision.   Section 77  also applies when an endowment is made or property given partly to religious and partly to secular uses.  Clause 7 of the  Trust  Deed and List E show that endowments  have  been made  and property given partly for religious and partly for secular  uses.   It,  therefore,  could  not  be  said  with absolute  certainty that Section 77 did not apply.  If there was  a dispute as to whether Section 77 applied or not  then the  Board could decide the question and pass an Order.   It did  so on 10th December, 1947.  Such an Order would be  one which  was  passed with jurisdiction.  As the same  was  not challenged  within  the  time provided it  became  final  as against the Appellants.

   It  was  next submitted that as specific endowments  had been  made  for  specific  purposes, the  Order  dated  10th December,  1947  was hit by Article 26 of the  Constitution. It  was submitted that neither the Board nor the Court could vary  the intention of the settlor and sanction a deviation. In  support  of this submission reliance was placed  on  the cases  of Goda Rao v.  State of Madras reported in AIR  1966 SC  653 and Ratilal v.  State of Bombay reported in AIR 1954 SC 388.

   There  can  be no dispute with the  general  proposition that  the  intention  of  the   settlor  cannot  be  varied. However,  in  this case there is no variation  or  deviation from  the intention of the settlor.  All that has been  done is  that the provisions of the Act have been applied and the percentage  which has to be used for religious purposes have been laid down.

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   Under  the circumstances, we see no reason to interfere. The  Appeal stands dismissed.  There will be no Order as  to costs.