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M. Ar. Rm. M. Annamalai Chettiar and ors. Vs. Al. A.C.T. Solayappa Chettiar and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai
Decided On
Reported in(1935)69MLJ274
AppellantM. Ar. Rm. M. Annamalai Chettiar and ors.
RespondentAl. A.C.T. Solayappa Chettiar and anr.
Cases ReferredVythilinga Pandara Sannadhi v. Ranganadha Mudaliar I.L.R.
Excerpt:
.....under section 92 of the civil procedure code as well as of the board under section 73 of the hindu-religious endowments act. that the two purposes are blended and that the fund is one and entire, is brought out very clearly by the allegation in the plaint that 'the sum is set apart for the renovation but that a large portion out of it should be applied to the maintenance of the veda patasala'.if the object of the trust were the renovation of the temple and nothing more, that the trust would in that event be a religious endowment under the local act, can admit of no doubt; for, the renovating of a temple would clearly be the 'performance' of a 'charity' in connection with that temple. for, all religious trusts are in a sense charitable,,although the converse of this proposition does not..........has been instituted, would in that event have no jurisdiction.9. the question then is, are the suit trusts 'religious endowments' as defined by the local act? the plaint, as already stated, refers to the two distinct endowments and each of them for the present purpose has to be considered separately. the first endowment is that of rs. 54,000 which, according to the plaint, is set apart for two purposes--the renovation of the temple and the maintenance of the veda patasala. the entire amount is devoted to both the purposes together, there being no apportionment or severance of the fund. that the two purposes are blended and that the fund is one and entire, is brought out very clearly by the allegation in the plaint that 'the sum is set apart for the renovation but that a large portion.....
Judgment:

Venkatasubba Rao, J.

1. This case raises the question as to the nature of the suit trusts and on that depends whether the lower Court has jurisdiction to try the suit. Are the trusts governed by Section 92 of the Civil Procedure Code or by Section 73 of the Madras Hindu Religious Endowments Act (Act II of 1927), that is the question as regards the nature of the trusts that has to be decided.

2. The plaint alleges that by an agreement come to about the year 1903 among the members of certain Nattukottai Chetty families (now represented by the plaintiffs and the defendants) a sum of Rs. 54,000 was set apart for certain purposes. In paragraph 4 of the plaint those purposes are thus described:

It was agreed by and among the members of the first four families, about the year 1903, that a sum of Rs. 54,000 should be set apart by them for the Thirupani (i.e.) the renovation of the Sri Vedanayagi Amman Temple, at Vedaranyam, that a large sum out of the same should be set apart for the maintenance and conduct of the Veda Patasala which was already in existence and being run on a moderate scale from the contribution made prior thereto by the aforesaid four families and that with the said sum of Rs. 54,000 and the interest accruing therefrom the Vedanayagi Amman Temple should be renovated and repaired and the Patasala should be efficiently conducted by the members of the said families.

3. Paragraph 8 then deals with another endowment made about 1907 of a further sum of Rs. 12,500. The passage dealing with that endowment is extracted below:

In addition to the aforesaid endowments in or about 1907 a further sum of Rs. 12,500 made up of 10 shares of Rs. 1,250 each, contributed by the families of plaintiffs and defendants 1 to 6, 8 to 20, 24 to 26 and one. Malladi Sathilingam was allotted for the purpose of starting and maintaining an institution of pious service, familiarly known among the Nattukottai Chetty Community as Kulithaligai in the said Vedaranyam Temple and the funds were similarly agreed to be invested and improved.

4. The plaint charges the defendants or some of them with maladministration of the trust funds, which with the accumulation of interest, are alleged to amount to over five lakhs of rupees and prays (1) that certain defendants, the present managing trustees, may be removed from their office, (2) that new trustees, may be appointed, (3) that the defendants may be directed to render an account of the trust funds and (4) that a scheme of management in respect of the charities be framed.

5. The plaintiffs obtained for the filing of the suit, the consent of the Advocate-General under Section 92 of the Civil Procedure Code as well as of the Board under Section 73 of the Hindu-Religious Endowments Act. The question is whether the Court of the Subordinate Judge of Tiruvarur, where the suit has been filed, has jurisdiction to entertain it.

6. Section 92 of the Civil Procedure Code, applies to trusts 'created for public purposes of a charitable or religious nature.' But the application of that section is excluded by Section 73 of the Endowments Act in the case of religious endowments falling within it. The result is, that all charitable trusts are still governed by Section 92 of the Civil Procedure Code; but where the trusts are of a 'religious nature,' such of those trusts as are 'religious endowments' within the meaning of the Endowments Act, are removed from the ambit of Section 92 and to that limited class of religious trusts Section 73 of the Local Act applies. The effect of the last mentioned Section is, that no suit can be brought in respect of the religious endowments as defined by the Madras Act, 'except as provided by that Act' which-expression has been held to mean 'except under the provisions of that Act'. See Vythilinga Pandara Sannadhi v. Ranganadha Mudaliar I.L.R.(1933) 57 Mad. 362 : 66 M.L.J. 98. The Court mentioned in Section 73 as having jurisdiction in respect of religious endowments referred to in it, is the 'Court of the District Judge within whose local limits a Committee exercises its jurisdiction or a mutt or temple is situated' Section 9(3).

7. Now, turning to the definition of 'religious endowments' under the Madras Act, so far as it is material to the present purpose, the expression means, all property given or endowed for the performance of any service or charity connected with a temple: the Court having jurisdiction over those religious endowments under the relevant part of the definition of 'Court' referred to above, is the Court of District Judge within whose local limits the temple in connection with which the service or charity has to be performed, is situated.

8.If the trusts referred to in the plaint are religious endowments within the meaning of the local Act then the Court having jurisdiction would be the District Court of East Tanjore within whose local limits the temple of Sree Vedanayagi Amman at Vedaranyam is situated; the Court of Subordinate Judge at Tiruvarur (which Court, it may be mentioned, is in the District of East Tanjore) where the present suit has been instituted, would in that event have no jurisdiction.

9. The question then is, are the suit trusts 'religious endowments' as defined by the local Act? The plaint, as already stated, refers to the two distinct endowments and each of them for the present purpose has to be considered separately. The first endowment is that of Rs. 54,000 which, according to the plaint, is set apart for two purposes--the renovation of the temple and the maintenance of the Veda Patasala. The entire amount is devoted to both the purposes together, there being no apportionment or severance of the fund. That the two purposes are blended and that the fund is one and entire, is brought out very clearly by the allegation in the plaint that 'the sum is set apart for the renovation but that a large portion out of it should be applied to the maintenance of the Veda Patasala'. If the object of the trust were the renovation of the temple and nothing more, that the trust would in that event be a religious endowment under the local Act, can admit of no doubt; for, the renovating of a temple would clearly be the 'performance' of a 'charity' in connection with that temple. But what is the effect of combining with that purpose, the maintaining of a Veda Patasala which, it must be observed, is not connected with any temple? Under the Act, it is of the essence of a religious endowment, that it should be so connected and as this requisite is wanting, the fund to the extent to which it is devoted to this purpose, cannot be held to be a religious endowment. Although it is not a religious endowment under the Act the object is nevertheless not temporal or secular in character as the plaintiffs contend, but is of a religious nature under Section 92 of the Code of Civil Procedure. The object of maintaining a Veda Patasala is not to promote knowledge in general but spiritual knowledge; in other words, its purpose is the advancement of religion. Under the English decisions, gifts for the maintenance of institutions, such as the Society for Propagation of the Gospel, or the Promotion of Christian Knowledge, are gifts for religious purposes and hence are charitable; for, all religious trusts are in a sense charitable,, although the converse of this proposition does not hold good. A Veda Patasala is akin to the institution mentioned above as its purpose is the promoting of knowledge of the Vedas.

10. The fund in this case being devoted to two purposes, one falling within the Act and the other, though a religious purpose, falling outside it, I must hold that that fund is not a religious endowment as denned by the Act. The respective spheres of Section 92 of the Civil Procedure Code and Section 73 of the Religious Endowments Act must not be forgotten. The latter Act removes as already stated, from the ambit of Section 92 which relates to all trusts of a religious nature, only those religious, trusts which amount to 'religious endowments' under that Act.

11. In regard then to the first endowment which, as I have held, is governed by Section 92 of the Code of Civil Procedure, the question arises, which is the Court having jurisdiction in respect of it? That section enacts that a suit may be brought either 'in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the Local Government within the Local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate.' The point to consider is, what is the meaning of the expression 'the subject-matter of the trust?' The plaintiffs contend that it includes the purposes or the object of the trust and go on to maintain that as the Vedaranyam temple and the Veda Patasala are situated within the local limits of the Sub-Court of Tiruvarur, that Court has jurisdiction. This argument ignores the well-known distinction in regard to a trust, namely, its subject-matter and its object, and must be rejected. In this very section both the sets of expression are found used (see the main part and Clause (e)). The Charitable and Religious Trusts Act (Act XIV of 1920) deals with public trusts and is therefore an act in pari materia, and the two expressions in relation to a trust the 'subject matter' and the object - are there used in different senses. Similarly in English works dealing with charitable trust, the same distinction is maintained (See Halsbury's Laws of England, Hailsham Edition, Vol. IV, p. 171 (ascertained of the subject-matter of the trust), and p. 175 (ascertainment of the objects of the trust).) I am therefore quite clear that a suit under Section 92 should be brought where the subject-matter of the trust, that is to say, the trust property or the trust money or any part of it, is situate. See Padampat Singhanya v. Narayandas Jhunjhunwalla I.L.R.(1931) 59 Cal. 357 where it is assumed that the subject of the trust means the trust property.)

12. So far as the first endowment is concerned, although the ground urged by the plaintiffs in support of the Tiruvarur Sub-Court having jurisdiction is, as stated above, wrong, that Court has nevertheless jurisdiction for other reasons as I shall presently show. The test, as already mentioned, is, where is the trust money or any part of it situate? The claim of the Cestui Que Trust, as stated by Lewin, is in general a simple contract debt [Lewin on Trust, (1928) 13th Edn., p. 952] and as Mr. Section Srinivasa Aiyangar rightly contends, it makes no difference for this purpose whether the defendants are trustees in the strict sense of that term or mere managers of the kind described in Vidya Varuthi Thirtha v. Bolusami Aiyar . The funds in question are in the hands of the trustees or ought to be with them; if not, they have been invested. In any case, the claim against them is in the nature of a debt. The question then arises, where is this debt situate? The actual state of an investment is, as pointed out by Russell, J., in Favorke v. Steinkopff (1922) 1 Ch. 174 entirely irrelevant as the investment can be altered from time to time. ('But debts do, in one form or another,' observes Lord Buck-master, 'represent property of very considerable value in the modern world, and it appears to me it is desirable that they should possess a locality, even if they are invested with it by means of a legal fiction.' English Scottish and Australian Bank, Ltd. v. Inland Revenue Commissioners (1932) A.C. 238. In that case Lord Macmillan quotes Lord Lindley's observation:

to talk of property as existing nowhere is to use language which to me is unintelligible.

13. It being thus established that a debt may have a local situation, the question is, where a debt, according to the rules of law, can be said to be situate. The debt is where the bond is, being upon a specialty; but debt upon a contract follows the person of the debtor. English Scottish and Australian Bank, Ltd. v. Inland Revenue Commissioners (1932) A.C. 238. As Dicey points out:

Debts, choses-in-action and claims of any kind must be held situate where the debtor or other person against whom a claim exists resides; or in other words, debts or choses in action are generally to be looked upon as situate in the country where they are properly recoverable or can be enforced.

14. Dicey's Conflict of Laws, (1932) 5th Edn., p. 341. See also Favorke v. Steinkopff (1922) I. Ch. 174 already quoted, at p. 178, Chathurbhuj Piramal v. Chunilal Oomkarmal . The situation of the debt therefore is either where the debtor resides or where it is recoverable or can be enforced. In the present case, the debtors (i.e., the trustees), it is said, reside at Pallatur within the jurisdiction of the Ramnad District Court and not of the Tiruvarur Sub-Court where this suit has been filed. But the debt may be situate, as pointed out also where it is recoverable or can be enforced. As to where the present debt can be recovered or be enforced, reference should be made to Section 20 of the Civil Procedure Code, which enacts that a suit may be instituted in the Court within the local limits of whose jurisdiction either the defendants reside or the cause of action wholly or in part arises. There can be no question that in Vedaranyam where the temple and the Patasala in respect of which the trusts are to be executed, are situate, a part of the cause of action arises. Under the English Law where no place is appointed for the performance of a contract, the debtor is bound to find the creditor, in other words, there is an implied promise on the part of the debtor to pay where the creditor resides. [See Mulla's Civil Procedure Code, (1934) 10th Edn., p. 119, Commentary under Section 20] Their Lordships of the Judicial Committee point out in Soniram v. Tata & Co. (1927) L.R. 54 IndAp 265 : I.L.R.1927 5 Rang 451 : 53 M.L.J. 25 (P.C.) that even under the Indian Law in ascertaining the intention of the parties, regard should be had to the fact that the obligation to pay the creditor involves the further obligation of finding the creditor so as to pay him. It follows from what I have said, that the debt is situated also at Vedaranyam where under the provisions of the Civil Procedure Code, it can be recovered or enforced.

15. To sum up, the debt in question has two local situations : (1) Where the debtors reside, namely, Pallatur within the jurisdiction of the Ramnad District Court and (2) Where the debt can be enforced on the ground that a part of the cause of action arises there i.e., Vedaranyam (within the jurisdiction of the Sub-Court of Tiruvarur) where the trusts are to be executed; the cause of action arises there in part on a further ground, namely, that there is an implied promise on the part of the debtor to pay where the creditor resides. At the plaintiffs' option the suit could have been filed in either of the two Courts mentioned above. I must therefore hold that this suit, so far as the first endowment is concerned, has been properly instituted in the Sub-Court of Tiruvarur. But under Section 92 of the Civil Procedure Code, both the Sub-Court and the District Court to which it is subordinate have concurrent jurisdiction, and for reasons which will hereafter appear, I direct the transfer of this suit from the Sub-Court of Tiruvarur (which, I have held, has jurisdiction) to the District Court of East Tanjore (to which that Court is subordinate) which also possesses jurisdiction.

16. Passing on to the second endowment, namely, Rs. 12,500 alleged to have been allotted for the maintaining of a kulithaligai in the Vedaranyam temple, the question arises whether the purpose of the trust is charitable or religious. If it is a religious trust, it satisfies the requirements of a 'Religious endowment' as defined by the local Act, for, the plaint states that the kulithaligai is to be maintained in the temple, which means 'in connection with the temple.' But the plaintiffs (they having filed the suit under Section 92) contend that the kulithaligai is not a religious but a charitable purpose for, the offering of the food to the deity is but ancillary (it being a Hindu religious conception that all food should be so offered) and that the feeding of the poor is the primary, if not, the sole purpose. The plaint, beyond stating that the kulithaligai is an institution familiar to the Nattukottai Chetties, does not explain what it means, nor are the Counsel able to say what the expression connotes; all that is known is, that the latter part of the word, 'thaligai' means an offering to an idol. If the thaligai was of the usual kind, I should have had no difficulty in holding that the purpose was religious, but on the pleadings alone and in the absence of evidence, it is impossible to come to any definite conclusion as to the nature of this trust. The second endowment then is, either a charitable trust governed by Section 92 of the Civil Procedure Code, or, a religious endowment falling within the local Act; to which of these categories it belongs, can be decided only when evidence has been adduced. If it is governed by Section 92 the Court having jurisdiction, as already stated, is either (a) the Sub-Court of Tiruvarur or (b) The District Court of East Tanjore; if, on the other hand, Section 73 of the Madras Act governs it, the proper Court, as explained in the earlier part of this judgment, is the District Court of East Tanjore. As I have already, while dealing with the first endowment, directed the case to be transferred to the District Court of East Tanjore and as in either view that Court possesses, as just shown, jurisdiction even in regard to the second endowment, my order is, that the case shall be tried by that Court.

17. Before concluding, I must point out that the contention of Mr. Section Srinivasa Aiyangar, that if the second of the two trusts is a religious endowment within the meaning of the Endowments Act, while it is excluded from the operation of Section 92 of the Civil Procedure Code, Section 73 of the former enactment has not provided an effective remedy in regard to it and that therefore as the, law stands, no suit can be brought in respect of that endowment - that contention is, in my opinion, not well-founded. The learned Counsel in support of his argument relies upon my judgment in Vylhilinga Pandara Sannadhi v. Ranganadha Mudaliar I.L.R.(1933) 57 Mad. 362 : 1933 66 M.L.J. 98, already cited. But all that I there held was, that by an oversight the Act has failed to provide for a suit for the removal of a trustee of a religious endowment not being a 'mutt' or ' excepted temple ' the reason being that Section 73(1)(a), owing to its restrictive wording, does not apply to religious endowments in general. Section 73 (1), in spite of its opening sentence which refers only to 'mutts' or 'temples' applies to all religious endowments as the second part of that Section shows if that be so, even excluding Clause (b) if Clause (a) is inapplicable, Clause (b) seems necessarily excluded, Clauses (c) and (d), which are not restrictive in their wording as Clause (a) is, must be held to apply to religious endowments generally. I must observe that Curgenven, J., in Ranganayaki Bai Ammal v. Shivarama Dubay (1929) 58 M.L.J. 104, seems disposed to think that Section 73 must be confined to mutts and temples, although, as the learned Judge points out, Clauses (b), (c) and (d) of the first part are wide enough to apply to religious endowments in general. He derives support for that view from the mention of 'any person having interest' in Section 73(1) and from the fact that in defining such a person, the Act has advertence only to a mutt or temple see Section 9(ix). But as there can be no religious endowment, under the scheme of the Act, except in connection with a mutt or temple, the definition is wide enough to include persons having an interest in endowments other than mutts or temples. Therefore, even should it be found that the second of the trust is a religious endowment under the Madras Act, the plaintiffs are not, in my opinion, wholly without remedy under the provisions of the Act (defective as they are) in respect of that endowment.

18. I may in conclusion repeat what I said in Vythilinga Pandara Sannadhi v. Ranganadha Mudaliar I.L.R.(1933) 57 Mad. 362 : 1933 66 M.L.J. 98 (already cited), that it is desirable that the legislature should suitably amend the Act providing for the cases in regard to which it is now defective.

19. My order as to the costs of the Civil Revision Petition is, that the defendants shall pay to the plaintiffs' costs and their own costs from and out of the trust funds in their hands. The counsels' fee on each side is fixed at Rs. 250.


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