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Rao Bahadur S.A.S. Rm. Ramanathan Chettiar Vs. M.P. Palaniappa Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai
Decided On
Reported in(1945)2MLJ164
AppellantRao Bahadur S.A.S. Rm. Ramanathan Chettiar
RespondentM.P. Palaniappa Chettiar and ors.
Cases ReferredChambers v. Chambers
Excerpt:
- - the court below held that the appellant was not entitled to sue as a person having interest in the temple and that he had failed to prove that the respondents or any of them committed any of the acts of misfeasance or malfeasance alleged in the plaint, and dismissed the suit. apart from the respondents' alleged failure to account for certain moneys claimed to be trust moneys, which will be dealt with presently, practically the only charge which calls for serious consideration, as a ground for removal, is the denial, in certain proceedings before the hindu religious endowments board and in the present litigation, of the exis-tence of any trust fund or property except one acre of inam land situated in cusba chidambaram. ' as the first mentioned amount is by far the largest, the.....patanjali sastri, j.1. this is an appeal from the judgment and decree of the court of the district judge of south arcot dismissing with costs a suit brought by the appellant under section 73 of the madras hindu religious endowments act (ii of 1927) for the removal of the respondents and two other members of their family, since deceased, from the trusteeship of a temple known as sri elamaiyakkinar temple situated at chidambaram, for the appointment of a proper trustee and for an account of the respondents' management of the temple properties. the appellant alleged in his plaint various acts of misfeasance and malfeasance and misappropriation of trust moneys by the respondents' family in the course of their management, as grounds for the reliefs sought. the respondents pleaded, inter alia,.....
Judgment:

Patanjali Sastri, J.

1. This is an appeal from the judgment and decree of the Court of the District Judge of South Arcot dismissing with costs a suit brought by the appellant under Section 73 of the Madras Hindu Religious Endowments Act (II of 1927) for the removal of the respondents and two other members of their family, since deceased, from the trusteeship of a temple known as Sri Elamaiyakkinar temple situated at Chidambaram, for the appointment of a proper trustee and for an account of the respondents' management of the temple properties. The appellant alleged in his plaint various acts of misfeasance and malfeasance and misappropriation of trust moneys by the respondents' family in the course of their management, as grounds for the reliefs sought. The respondents pleaded, inter alia, that the appellant was not a ' person having interest' in the temple within the meaning of the Act referred to above and was therefore not entitled to sue, that the temple owned only about one acre of nanja land in cusba Chidambaram, which fetched an annual rent of about 15 to 20 kalams of paddy, that it had no other source of income, that the temple was maintained only by the private munificence of the respondents and that they were not accountable. The respondents also denied the allegations of mismanagement and breaches of trust and claimed to be the hereditary trustees of the temple not liable to be removed. The Court below held that the appellant was not entitled to sue as a person having interest in the temple and that he had failed to prove that the respondents or any of them committed any of the acts of misfeasance or malfeasance alleged in the plaint, and dismissed the suit.

2. At the previous hearing of the appeal this Court held that the appellant came within the definition of a 'person having interest' in Section 9, Sub-section 9, of the aforesaid Act and was thus entitled to sue and, finding that the trial was neither complete nor satisfactory, set aside the dismissal of the suit and referred the case back to the lower Court for trial on the following issues : (?) Whether any amounts or properties have been dedicated in trust to the navarathri kattalai, deepa kattalai and uchikala kattalai and are in the hands of the defendants, (ii) Whether any fund or property has been dedicated to the pooja paditharam and is in the hands of the defendants. (iii) Whether any immoveable properties other than the admitted extent of one acre and odd have been dedicated to the temple and are in the hands of the defendants. (iv) Whether there has been any breach of trust by the defendants in respect of the above funds or properties. Both parties were permitted to adduce additional evidence on these issues. The learned Judge having submitted his findings after an elaborate trial, the appeal comes on for further hearing and disposal.

3. It is common ground that the temple in question is an ' excepted temple ' as that term is defined in Section 9, Sub-section 5 of the said Act and that the respondents' family are the hereditary trustees thereof. It is also common ground that the family carried out extensive renovations and repairs to the temple premises spending large sums of money for the purpose, though the source of the money is a matter of dispute between the parties; the appellant alleging that the bulk, if not the whole of it, consisted of subscriptions collected from the public, while the respondents alleged that practically all the money came out of their own family funds. It is also not seriously disputed that the respondents have throughout been conducting the customary services and festivals in the temple in accordance with mamool and that the temple has been greatly benefited by their management.

4. The following pedigree shows the relationship of the respondents to one another and the persons who have been in management of the temple on behalf of the family from time to time (marked by the letter 'M' annexed to their names).

Periakaruppan Chetti

|

______________________________________________________________

| |

Meyyappa Palaniappa

| |

Nagappa |

__________|_____________ ________________|__________

| | | |

Meyyappa (M) Chidambara d. (M) Chinnayya (M) Subramanya

| | d. 1901. d. 1907

Meyyappa | | |

| | | |

Ramanadha | | |

(defendant 5) _______________ ______________ _________________

| | | | | |

Somasundara Nagappa (M) Palaniappa Kasi Malayandi Pichakutti

(deft.3)d. (deft.4)d. (1st deft.) (2nd deft.) (deft. 6) (deft. 7)

| d. 1940.

|

Chidambara

(adopted)

(deft. 8)

added as

legal representative of deft. 4.

5. Before dealing with the issues as to the extent of the temple properties and the accountability of the respondents for the management thereof, it will be convenient to consider the claim for their removal from trusteeship. At the retrial after remand numerous charges of misfeasance and breach of trust were raised against the respondents, but the learned District Judge after an elaborate investigation found that, though there has been some irregularity, no serious charge involving dishonest or fraudulent conduct Was brought home to the members of the respondents' family, and he has recorded his general impression that they had, on the whole, dealt with the temple honestly and fairly. We may state at once that, after hearing Mr. Swaminatha Ayyar, the appellant's learned Counsel, at considerable length we agree with the learned Judge's conclusion and share his impression. Most of the charges of suppression of temple funds and misappropriation thereof based upon entries in the accounts produced by the respondents turned out, on a careful scrutiny of the accounts, to be altogether unfounded, their formulation appearing in many cases to be due to a misappreheesion of the relative entries. Apart from the respondents' alleged failure to account for certain moneys claimed to be trust moneys, which will be dealt with presently, practically the only charge which calls for serious consideration, as a ground for removal, is the denial, in certain proceedings before the Hindu Religious Endowments Board and in the present litigation, of the exis-tence of any trust fund or property except one acre of inam land situated in cusba Chidambaram. It is now admitted that the temple owns and has always owned considerable immoveable properties in the shape of lands and houses in Chidambaram and surrounding villages, and also certain funds dedicated for kattalais. While so, it was represented to the Board in 1929 by the fourth defendant, acting on behalf of the family, that the temple owned only one acre of land and no other property. He stated : 'It (the temple) owns one acre nearly. It gets an income of 20 kalams. Apart from this it has no other income. The expenses are met from our family.

6. Acting on this representation, the Board passed an order, dated 8th October, 1929 (Exhibit V) excluding the temple from the scope of the Madras Hindu Religious Endowments Act. Again, in the written statement filed in this suit by the fourth defendant on 13th February, 1936, which was adopted by the respondents, a similar denial was made, and it was repeated by the first respondent in his petition to the Board filed on 21st June, 1937, for a declaration that the temple was an ' excepted temple ' within the meaning of the Act, as also in his deposition as D.W. 2 at the original trial of this suit in 1939. It would also appear that in 1934, presumably in anticipation of this suit, the respondents opened a new set of accounts known as ' P.R. M.P. kattalai accounts ' to which they transferred all the properties of the temple which had till then been shown in the temple accounts, and it was not until it became clear at the trial that the appellant would succeed in establishing the title of the temple that they conceded its ownership of the properties. It will thus be seen that the fourth defendant and the first defendant falsely denied the title of the temple to a considerable extent of immoveable properties which are now admitted to belong to it, and there can be no doubt that this conduct, whatever the motive behind it, was improper. Mr. Rajah Ayyar, while making no attempt to justify such conduct, submitted that it was probably inspired by an anxiety to make it appear that the temple was a petty temple not worth the trouble of supervision and control by the Board or by the Court, and that it was certainly not due to any dishonest intention to appropriate temple property. The learned Counsel also pointed out that the prominent members of the family who were mainly responsible for the ill-advised denial of the trust, viz., the fourth defendant and the first respondent, were both dead and that the other respondents, beyond adopting the written statement filed by the fourth defendant in this suit, did not actively take part in such denial at any time before suit. These submissions are not without force and, while we are not prepared to acquit the respondents altogether of improper conduct, we consider, agreeing with the learned District Judge, that it does not justify their removal from the office of Dharmakarta--of. Sivasankara v. Vedagiri I.L.R. (1889) Mad. 6.

7. It is unnecessary to go into the details of the dispute regarding the immoveable properties belonging to the temple. As has been stated, it is now admitted by the respondents that the temple owns lands in the Elanangur and Vayalamur villages exclusively and the lands in Nandimangalam village jointly with the Ponnambalam Mutt situated in Chidambaram. It is also admitted that the houses and buildings in Chidambaram town claimed by the appellant to be temple properties, except those covered by the sale deeds Exhibits XXI and XXI-a and XXII, belong to the temple. Even in the last mentioned properties the respondents do not claim any beneficial interest, but only state that they appertain to a distinct charity, namely, the Patasala, known as ' Elamaiyakkinar Koil Patasala ' situated at Chidambaram. The Court below has accepted this case and the appellant's learned Counsel has not succeeded in showing that the finding is wrong. Similarly, as regards the lands in certain other villages alleged to belong to the temple, it has been found that the ownership of the temple was not established and the appellant has been unable to displace that finding. It is admitted that certain immoveable properties were purchased for the navarathri kattalai in 1934 under Exhibit D-1, but it is represented on behalf of the respondents that these properties were reconveyed to the original owner in pursuance of an agreement in that behalf and that the proceeds have been invested on a mortgage of immoveable properties with the sanction of the Hindu Religious Endowments Board. This transaction is said to have taken place after the judgment of the lower Court was pronounced. The respondents also admit that they have a sum of Rs. 1,122-5-0 in their hands as a capital fund endowed by one Swaminatha Pillai for akanda deepam kattalai (perpetual burning of light at the shrine) and they have expressed their willingness to hold it subject to such directions as the Court may think fit to issue.

8. Turning now to the main question as to respondents' liability to account for various trust funds alleged to be in their hands, the claim relates to three sums found credited in the accounts of the Rangoon M.P. business and one sum credited in the Madras M.P. P.C.T. business. The respondents' family were the proprietors of the business at both places. In the Rangoon books the credits appear in three different folios headed 'pooja paditharam kattalai' (Rs. 37,347-2-3 as on 17th September, 1909), ' deepa kattalai ' (Rs. 1,859-13-0 as on 16th September, 1909) and ' uchikala kattalai ' (Rs. 4,634-7-3 as on 4th September, 1909), and in the Madras account a sum of Rs. 1,404-11-0 stands credited as on 6th September, 1906, in the folio headed ' kattalai account of Elamaiyakkinar temple, Chidambaram.' As the first mentioned amount is by far the largest, the controversy centred mainly round that item but, as the respondents' answer to all these claims is substantially the same, the main consideration relevant to that item apply to the other items as well. It may be mentioned here that, though the entry relating to the uchikala kattalai would seem to show that one Sigappi Achi was the donor, it is in evidence that she was the paternal aunt of the fifth defendant and that, after she died without issue, her stri-dhanam properties reverted, according to custom among the Nattukottai Chetti community, to her parents' family, i.e., to the respondents' family who caused the credit entries to be made in her name. On 4th October, 1899 an account headed 'pooja paditharam of Elamaiyakkinar Kovil at Chidambaram ' was opened in the Rangoon books and a sum of Rs. 3,000 was credited therein. It was followed by various other credits and, in 1904, amounts credited under other heads were also brought into this account so as to augment the balance to Rs. 24,877-14-3 in April, 1905, which with further interest amounted to Rs. 37,347-2-3 on 16th September, 1909. No further interest was added, but there were numerous drawings between 1909 and 1912 which reduced the credit balance to Rs. 28,857-10-0 as on 1st October, 1912. This balance does not appear to have been carried forward to any other account and remains unadjusted. It is admitted that some of the credits represent contributions made by third parties for Various subsidiary kattalais brought under this head, and there can be no doubt that the respondents would be liable to account for such amounts if the latter still remained unexpended in their hands. But, as pointed out by the learned District Judge, these contributions were relatively very small, and it has not been shown that their total, even if Rangoon tavanai interest is added, would exceed the sum of about Rs. 8,000, drawn from this account from 1909 to 1912 for expenditure on the pooja and other services in the temple during that period. We may mention here, only to dismiss, the suggestion that these contributions were made as permanent endowments, the interest on which alone being intended to be spent on the services. The very smallness of the contributions and' the recitals in some of the entries clearly indicate that the amounts were intended to be spent in their entirety on the services specified. The sums received from outsiders and credited in the account may, therefore, be taken to have been more than accounted for by the drawings for expenses of the services in the temple between 1909 and 1912. The question then is whether the other credit in the accounts made at the instance of one or other member of the respondents' own family evidence valid gifts or trusts made or created in favour of the charity.

9. In support of the suggestion that these credits represented actual sums of money appropriated for the performance of the services and held as deposits, reliance was placed on the reference to hundis sent from oor (i.e., Karaikudi, the respondents' headquarters) in the opening credit entry of Rs. 3,000 in the pooja paditharam account and in the credit entry of Rs. 1,600 in the deepa kattalai account. The books of the Rangoon business for the year 1899 in which the entry was made are not forthcoming, but the oorkadai or the headquarters accounts relating to the period have been produced. In these accounts the amount is credited to the Rangoon business and debited as an expense on 15th November, 1899. The entry runs thus : ' Credit-again as on the said date (i.e., 19th Purattasi Vikari corresponding to 4th October, 1899) for the pooja paditharam of Rouvaneswarar (i.e., the principal deity) at Chidambaram Rs. 2,000 and for the pooja paditharam of Visveswarar, Visalakshi and Mandikeswarar (subsidiary deities in the suit temple) Rs. 1,000, by one hundi, bearing half per cent, interest written and given--Rs. 3,000.' The debit entry in the account is in similar terms with the words ' for purchasing village ' added at the end. It is clear from these entries that at Rangoon the amount must have been credited to the pooja paditharam account and debited to oor, an inference supported by the similar entries relating to the deepa kattalai made in the year 1907 for which the Rangoon books are produced. A sum of Rs. 1,600 was then credited to that kattalai and debited to ' Karaikudi P.S.' i.e., the father of defendants 5 and 6, who appears to have sent the hundi in that case. There was some controversy as to the meaning of these entries, the appellant suggesting that the reference to the hundis indicated that the agent of the business at Rangoon must have realised the hundis and credited the proceeds in the respective accounts which accordingly must be taken to evidence actual appropriations of moneys for the services, while the respondents urged that it was apparent, from the amounts being debited by the Rangoon agent to the oorkadai in the one case and to the father of defendants 5 and 6 in the other, that the hundis must have been drawn on the Rangoon M.P. firm itself, and that they were no more than letters of instruction, and the entry itself was a mere book entry without any fund having come into the hands of the agent and actually appropriated to the charities. As the transactions took place many years ago, no witness who could speak to the details thereof from his personal knowledge was available, and the matter has to be decided on the entries alone. If the hundis had been drawn upon a stranger firm and the Rangoon agent cashed them and got the money, there would be no need for him, on crediting the amounts to the respective services, to debit the same to oor or to Karaikudi P.S. It was presumably because no money actually came into the hands of the agent, (hat on making the credit entries as directed by his principals he had to debit corresponding sums in the manner aforesaid in order to square his accounts. It is therefore reasonably clear that the hundis must have been drawn on the agent himself in each case and that no cash or fund actually came into his hands. We are therefore of opinion that the entries in the Rangoon books referred to above were no more than book entries made under instructions sent by the respondents' family without any corresponding sums being actually set apart for the charities at the time. No other credit entries in the pooja paditharam account referring to any hundis having been sent from oor have been brought to our notice, and they must all be taken to represent merely book entries as there is no evidence to show that corresponding sums were either remitted from oor or actually set apart at Rangoon for the charity. Can it be said, in such circumstances, that there was an effectual transfer of funds to het temple?

10. There are three modes in which a voluntary transfer of property in favour of a temple can be validly and effectually made. Firstly, by dedication of the property directly to the deity. This mode is sanctioned by Hindu law and needs no compliance with the provisions of the Transfer of Property Act, there being no transfer of property to a ' living person ' within the meaning of Section 5 of that Act. (See Gangi Reddi v. Tammi Reddi , Sooniram Ramniranjandass v. Alagu Nachiyar Koil (1939) 1 M.L.J. 192 : (1939) Rang. L.R. 59, and Narasimha Swami v. Venkatalingam : AIR1927Mad636 ) The subject-matter of a dedication must, however, be some specific property or asset and a mere credit entry in a book of account cannot be the subject of a dedication. Secondly, property may be transferred by way of gift to the trustee or trustees of a temple. Such a transfer, being one made to a living person, must comply with the requirements of Section 123 of the Transfer of Property Act and can only be effected, in the case of moveable property, by a registered instrument duly executed or 'by delivery.' There being no registered instrument here, Mr. Swaminatha Aiyar contended that there was, in the circumstances of the case, a sufficient delivery of the moneys credited to constitute valid gifts. The respondents, he pointed out, were acting in a dual capacity. They were already the trustees of the suit temple and they desired, as donors, to provide for the pooja paditharam and allied services therein. They were the proprietors of the Rangoon M.P. firm whose agent was acting as their banker, there being a regular course of remittances and withdrawals. In such circumstances, it was urged, a credit in favour of the temple in the Rangoon accounts under respondents' instructions, balanced by a corresponding debit to them, was the only business mode of transferring the moneys from the respondents as donors to themselves as trustees of the temple, and there was accordingly a valid gift, as delivery under Section 123 can be actual as well as constructive. We are unable to accept this argument. We are of opinion that no constructive delivery can be assumed in the circumstances of the present case, as no particular sum was ever separated from the general funds of the respondents' family or business and placed on a footing incompatible with the exercise of beneficial ownership by the respondents' family. It does not even appear that either the family at oor or their agent at Rangoon had, on the dates of the credit entries, sufficient cash balance on hand available for an actual allocation to the charity. No valid gifts of money can in such circumstances be held to have been made by the respondents as donors by constructive delivery to themselves as trustees of the temple, as suggested by the appellant's learned Counsel. It remains to consider whether the credit entries in question amount in law to the creation of a trust, which is the third mode of voluntary disposition. Here, again, some of the considerations, already adverted to, preclude the finding of a perfectly created trust. The trust in this case being a public religious trust, the provisions of the Trusts Act are, no doubt, inapplicable, but an intention to create a trust and transfer of property are as essential for public as for private trusts. There was no express declaration of trust here and, as has been stated, there was no actual allocation of any sum or sums of money in respect of which the respondents can be said to have divested themselves of all beneficial interest and undertaken the obligations of trustees. A credit entry in favour of a charity which does not correspond to an allocation of the sum credited can amount to no more than a promise to give the sum and, as observed by West, J., in Hirbai v. Jan Mahomed Khalakdina I.L.R. (1881) Bom. 229, to promise a thing is not to hold it in trust. The periodical crediting of interest in the same account on which Mr. Swaminatha Aiyar laid stress is no more consistent with a completed gift or perfected trust than with a simple promise to give. On the other hand, the fact that the respondents made no entries in the temple accounts kept by them at Chidambaram corresponding to the credits in their own Rangoon books is certainly more consistent with the supposition of an intention to give than of a gift or trust. Further more, on the latter supposition, the respondents would clearly be guilty of a breach of trust in employing temple funds in their own business, a thing not to be readily assumed. For all these reasons we must hold that there was no dedication or gift or trust of the sums (other than those received from strangers) appearing in the accounts of the pooja paditharam and other kattalais in the books at Rangoon and Madras and that the respondents are not accountable for the same.

11. The above conclusion receives support from two recent decisions of their Lordships of the Judicial Committee in Sooniram Ramniranjandass v. Alagu Nachiyar Koil (1939) 1 M.L.J. 192 : (1939) Rang. L.R. and Chambers v. Chambers (1944) 2 M.L.J. 29 : I.L.R. (1944) Mad. 617. In the first mentioned case a Chettiyar firm of moneylenders credited a certain sum in its books in the name of a temple but there was no allocation of any assets, the firm continuing to use all its funds in its business as before. Interest was credited periodically in the same account, but there were no drawings by the temple. On the adjudication of the firm as insolvent, payment of the amount in full was claimed by the trustee of the temple on the footing that the amount appearing in the account was trust money belonging to the temple. The claim was resisted on the ground that no endowment or trust had been created. It was found that the trustees of the temple were in entire ignorance of the credits, and evidence was given to the effect that it was usual for Ghettiyar firms to credit something towards charity, but the manager of the charity had no right to demand payment when they chose and the firm had its discretion to expend any moneys for the temple as occasion might arise. On these facts their Lordships held that there was no endowment of any property and no creation of a trust. Mr. Swaminatha Aiyar attempted to distinguish the decision by pointing out that the trustee of the charity there was, a different person and that he had no knowledge of the credit entries made in the accounts of the firm, while in this case no question of communication could arise as the respondents who were the proprietors of the Rangoon business were also the trustees of the suit temple. It is true the decision to some extent proceeded on the evidence adduced in the case to the effect referred to above, but the following observations as to the effect of mere credit entries made in books of account are pertinent to the present case:

The prima facie meaning of the entries in the insolvent's books discloses an intention on the part of the firm to treat itself as debtors to the temple in a sum which should increase as time went on. To hold that they are trustees because they have consented to be debtors would not only be unjustified, but would be inconsistent with their intentions as manifested by their conduct in making no allocation of any assets, in using their whole funds in their business as before and in computing interest at a rate and in a manner applicable to an ordinary customer.

12. As regards the contention based on the Hindu law of dedication their Lordships made the following remarks:

The same reasons are equally forceful to disprove the suggestion that the entries effect an endowment of property for the deity. The first question to be asked on that suggestion is, what property has been made debutter or charged in favour of the idol? The second is what proof is there of any such intention? As an interpretation of the conduct of the insolvent firm the theory of endowment breaks down as completely as does the theory that the firm intended to declare itself trustees for These passages would seem to show that, in their Lordships' opinion, an allocation of specific property or fund to charity is essential both for effecting an endowment under the Hindu law and for creating a valid trust.

13. In the other case, a person who was the proprietor of a business instructed the agent in charge to credit large sums in the names of his wife and other relatives in his account books and debit them to his capital account. Letters were also sent intimating that the sums thus credited were in the nature of personal gifts from him and would bear interest at a certain rate but were subject to certain restrictions as to withdrawal. Interest at the said rate was also credited in the same accounts and wife also withdrew various sums of money from time to time. When the bankers who had granted large overdrafts to the business objected to the payment of interest on the amounts credited, the question arose whether there was a valid gift or trust in respect of the said amounts. this Court held that there was neither a completed gift nor a valid trust; see Chambers v. Chambers : AIR1941Mad154 . The gift failed as there was no registered instrument or delivery of property as required by Section 123 of the Transfer of Property Act. The Court refused to accept the argument that the credit entries in the books amounted to a constructive delivery of the sums credited. The Court also refused to give effect to the incomplete gift as a declaration of trust as there was nothing to show that the donor intended to create a trust or to constitute himself a trustee, his only intention having been to make gifts. This decision was approved by their Lordships of the Privy Council. No attempt was made before them to support the transaction as a gift and, negativing the contention that a valid trust had been created, their Lordships observed:

What then was the subject-matter of this alleged trust? Mr. Justice Gentle seems to have been of opinion that it was a fund of two lakhs of rupees. But that was not so. No such sum was ever set aside and appropriated by Mr. Chambers as a fund transferable to Mrs. Chambers of which he was to be a trustee with all the consequential obligations of such a position.

14. These observations clearly indicate that a mere credit entry without setting aside and appropriating the sum credited is not sufficient to create a valid trust.

15. In the view we have expressed above as to the respondents' liability to account, it has become unnecessary to consider the further questions as to the rate of interest chargeable to them and the right of reimbursement claimed by them.

16. Although there was no prayer in the plaint that scheme should be settled for the proper management of the temple and its properties, Mr. Swaminatha Aiyar pressed upon us the desirability of this Court framing a scheme in view of the irregularities brought to light and the conduct of the respondents in denying the existence of trust properties which have now been established to be substantial. Mr. Rajah Ayyar, however, has raised a question as to the power of the Court to grant such relief in this suit which has been brought under Section 73 of the Madras Hindu Religious Endowments Act, while making it clear that the respondents have no objection to a proper scheme being framed for the management of the temple and its properties. There can be no doubt as to the desirability of settling a scheme providing for the due administration of the temple and its endowments and for the exercise of adequate supervision over the management. But, having carefully considered the question raised by Mr. Rajah Ayyar, we are constrained to come to the conclusion that the Court has no power to settle a scheme in a suit brought under Section 73 of the Madras Hindu Religious Endowments Act.

17. It is well known that, before the passing of that Act, suits for reliefs in respect of public charities were maintainable under Section 92 of the Civil Procedure Code but Section 73 of the Madras Act abrogates Section 92 of the Code in regard to suits claiming any relief in respect of the administration or management of a religious endowment in this Province and provides that no such suit shall be instituted except as provided by that Act. A comparison of the two sections reveals that while Section 73 is closely modelled on Section 92 of the Code, Clauses (f) and (g) of subsection (i) of the latter are omitted from Sub-section 1 of the former. The reason for the omission is to be found in the provisions of Sections 57, 63, 64 65 and 76 of the Madras Act. The last mentioned section provides for alienation of immoveable trust property subject to certain conditions and limitations and corresponds to Clause (f) of Section 92(1) of the Code, while the other sections which correspond to Clause (g) make provision for settling schemes for ' non-excepted ' and 'excepted' temples by the Board constituted under Section 10 of that Act. Schemes settled by the Board are to be final, subject to the result of any suit which the trustee or any person having interest may institute to modify or set aside such schemes. Further, provision is made for modification or cancellation, for sufficient cause, of schemes settled by the Court under the Act or 'deemed to be settled under the Act '; Section 75. It is clear that the Act which is a comprehensive piece of legislation with detailed provisions for the efficient protection, control and supervision of Hindu Religious Endowments in this province, vests the power of settling schemes initially in a statutory body, namely, the Board constituted under Section 10, and the Civil Court's jurisdiction is limited to the modification or cancellation of schemes settled by the Board in the first instance or of schemes settled by the Court itself under the

18. Act or deemed to be settled under the Act. We are therefore of opinion that this Court has no power in these proceedings to formulate a scheme for the suit temple as suggested for the appellant. It is left to the Board to take suitable action to secure the proper administration of the temple and its endowments.

19. Our attention has been drawn to a recent decision by a Bench of this Court (Krishnaswami Ayyangar and Kunhi Raman, JJ.) where a decree settling a scheme for 'Sri Vedanayagi Amman Temple and Patasala Trust' was passed (Appeal Suit No. 281 of 1938) in a suit instituted with the consent of the Advocate-General under Section 92 of the Code of Civil Procedure and also with the sanction of the Board under Section 73 of the Madras Act II of 1927. The trust was there described as a ' composite trust ' for the thiruppani of the temple and the maintenance of the patasala at Vedaranyam and no objection was raised., apparently, to the Court's power to settle a scheme for such a trust, for there is no discussion of the question in the judgment of the learned Judges. We cannot therefore regard the case as an authority in point.

20. In the course of the argument before us reference was frequently made to a patasala known as the 'Elamaiyakkinar Koil Veda Patasala ' situated at Chidambaram. Nothing was said in the plaint about this patasala or the properties attached to it nor was any mention made of it at the original hearing of the appeal before us. At the enquiry in the Court below after the remand, questions relating to the patasala were sought to be raised by the appellant but the learned District Judge declined to permit him to do so. Mr. Swaminatha Ayyar claimed before us that the patasala was a subsidiary charity attached to the suit temple and so came within the scope of this litigation, while the respondents who claim also to be the trustees of the patasala maintain that it is an independent trust only named after the deity in the suit temple to distinguish it from other similar institutions at Chidambaram. Obviously, a dispute of this kind cannot be allowed to be raised at this stage and we have not gone into this question. It appears however that there are considerable properties appertaining to this trust, and the respondents admit that the patasala has not been functioning for the last about ten years for want of pupils. It seems desirable in such circumstances that the respondents or other persons interested should move the appropriate authorities for directions for the control of the properties and for the use of the income derived therefrom.

21. In the result, the respondents are directed to invest the capital fund admitted to be in their hands relating to Swaminatha Pillai's akhanda deepa kattalai in proper securities in accordance with the directions of the Board which will be applied for within four weeks from this day. Subject to this order the appeal is dismissed. The appellant's costs in both the Courts will come out of the trust estate. The respondents will bear their own costs. A copy of this judgment will be sent to the Hindu Religious Edowments Board for such action as it may think fit to take in the light of our observations.


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