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A.M. Ponnuswamy Nadar Vs. the State of Tamil Nadu, Represented by the Commissioner and Secretary to Government, Commercial Taxes and Religious Endowments Department and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Reported in(1985)2MLJ492
AppellantA.M. Ponnuswamy Nadar
RespondentThe State of Tamil Nadu, Represented by the Commissioner and Secretary to Government, Commercial Tax
Cases ReferredThe State of Madras v. The Urumu Seshachalam Chettiar Charities
Excerpt:
.....absolutely dedicated for performing the charities, which i have extracted already in paragraphs supra. a reading of the document clearly makes out that the dedication is absolute. rajan, learned counsel appearing for the petitioner, no, doubt argued on the question of failure of natural justice also in this case. inasmuch as i have found that the charitable endowment is not a hindu charitable endowment coming under the purview of section 6(5) of the act, it is unnecessary for me to deal with the failure of natural justice put forth by the petitioner in conducting the enquiry. rajan, learned counsel for the petitioner, fairly stated that if this court is going to find that the provisions of the act will not apply to the endowment in question, there is no heed to deal with the failure of..........case is a complete one and attracts the definition under section 6(5) of the act, that to be a hindu charitable endowment it is not necessary that the beneficiaries should be exclusively hindus and that the petitioner has committed a lot of malfeasance and misfeasance which warranted the issue of the impugned notification. in order to substantiate his case, mr. s. ramalingam cited a number of decisions and stressed that one cannot add words to the statute for giving a particular meaning to that section. this submission the learned counsel was obliged to stress in view of the decision cited by mr. r.g. rajan, learned counsel for the petitioner which is reported in the state of madras v. the urumu seshachalam chettiar charities : (1960)2mlj591 . in that decision, a bench of this court.....
Judgment:
ORDER

P.R. Gokulakrishnan, J.

1. This writ petition is to quash G.O.Ms. No. 1193, Commercial Taxes and Religious Endowments Department, dated 31.7.1979. The short facts of the case are, the petitioner's grandfather by name Alagumalai Nadar executed registered document dated 12.4.1921 with a direction to performs certain charities. This was performed by Muthuswami Nadar, son of Alagumalai Nadar. Subsequently, the petitioner who is the son of Muthuswami Nadar, is performing these charities. The charities comprised of litting the lights with oil in the memorial erected in memory of the Coronation of King George V, Emperor of India, to perform water pandal charity, in the month of Chitrai every year on the occasion of the Brahmothsavam of Sri Meenakshisundareswarar Temple in Vilathikulam and to perform such other charities as the Hadgar in his discretion decides. The properties comprised in the document are the existing buildings and about two acres of land. The petitioner, as a prudent person, improved the lands and purchased income earning properties at Madurai City after selling some of the properties mentioned in the document. He has also let out a part of the building for the occupation of the Tamil Nadu Electricity Board and the proceeds therefrom were utilised for doing charities. While, so, the respondents herein initiated proceedings under Section 3 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as the Act) alleging that the charity is a Hindu Religious Charity for public purposes and that there are irregularities in the management of the same by the petitioner. Inasmuch as the respondents found fault with the sale of some of the properties, it is contended by the petitioner, he got retransfer of the same and intimated this fact to the respondents. A detailed explanation was also submitted by the petitioner and in spite of the same, the first respondent has issued G.O.Ms. No. 1193, C.T. and R.E., dated 31.7.1979 which states that the provisions of the Act are extended to these properties. It is this G.O., that is being questioned by the petitioner in this writ petition inter alia alleging that the charities mentioned in the document are being performed regularly, that in the document there is only a partial dedication viz., the property can at best be burdened with performance of charities and it is not an absolute trust property, that inasmuch as it is not an exclusive Hindu religious charity, Section 3(3) of the Act cannot be invoked in this case, that the Assistant Commissioner has given a report against the petitioner on the basis of the statement given by the Village Munsif without giving a copy of such a statement to the petitioner, that the petitioner has a number of persons to depose in his favour regarding the perfect performance of the charities mentioned in the document, that there is no contravention of any of the conditions mentioned in the document since the properties which were transferred were retransferred for the purpose of performing the charities, that the procedure adopted by the respondents is violative of the principles of natural justice and established judicial procedure and that the rights of the petitioner have taken away in a summary manner. It is further alleged by the petitioner that the nature of charities mentioned in the document of the year 1921 can at best create only a private trust and the same cannot be considered as a public charitable trust. For all these reasons, the petitioner wanted this Court to quash the impugned

2. The respondents in their counter-affidavit inter alia contended that the petitioner is not performing the charities mentioned in the document, that there is mismanagement in the performance of such charities, that no proper accounts are being maintained, that some of the lands of the charities have sold away in contravention to the clauses in the document, and that after examining all these defects, the first respondent has extended the provisions of the Act to the trust. The respondents have further contended that inasmuch as a water pandal charity has to be performed each year in Chitrai month at the time of the Brahmothsavam in Sri Meenakshi Sundareswarar Temple, Vilathikulam, the trust is of a religious character besides maintaining the chatram. The respondents denied the averment of the petitioner to the effect that after sale of certain lands, they have retransferred to the charities by stating that among the five transactions, the sale effected to one S.V.M. Rathinaswami Nadar was not retransferred and the sale proceeds were not credited to the accounts of the Chatram. As regards the opportunity to be given to the petitioner before the impugned order was passed, the respondents averred that proper and sufficient opportunity was given to the petitioner. Finally, the respondents have stated that the trust is a charitable endowment as defined in Section 6(5) of the Act and as such, the writ petition has to be dismissed with costs.

3. Mr. R.G. Rajan, learned Counsel appearing for the petitioner, contended that for charity to be performed certain properties are burdened with that service and hence, the endowment is not absolute. The learned Counsel further submitted that assuming that the trust is a charitable endowment, it is not a Hindu Public Charitable Endowment within the meaning of Section 3 of the Act and as such, the impugned CO., is bad. Finally, the learned Counsel submitted that the enquiry contemplated under Section 3 (2) of the Act has not properly done and further, there is a failure of natural justice which vitiated the proceedings and the subsequent

4. Thiru S. Ramalingam, Government Advocate representing the respondents, submitted that the procedure contemplated under Section 3(2) of the Act has properly followed, that it is not necessary to apply all the provisions of the Code of Civil Procedure to an enquiry by the Commissioner of H.R. and C.E., Department, or the Officers authorised by him, that the dedication in this case is a complete one and attracts the definition under Section 6(5) of the Act, that to be a Hindu charitable endowment it is not necessary that the beneficiaries should be exclusively Hindus and that the petitioner has committed a lot of malfeasance and misfeasance which warranted the issue of the impugned Notification. In order to substantiate his case, Mr. S. Ramalingam cited a number of decisions and stressed that one cannot add words to the statute for giving a particular meaning to that Section. This submission the learned Counsel was obliged to stress in view of the decision cited by Mr. R.G. Rajan, learned Counsel for the petitioner which is reported in The State of Madras v. The Urumu Seshachalam Chettiar Charities : (1960)2MLJ591 . In that decision, a Bench of this Court interpreting Sections 6(4) of the Old Act which corresponds to Section 6(5) of the present Act, held that unless the endowment is exclusively Hindu in character, the provisions of the Act cannot be invoked for extending the same to such endowment.

5. By G.O.Ms. No. 1193, C.T. and R.E., dated 31.7.1979, the first respondent, in exercise of the powers conferred under Section 3(3) of the Act, extended the provisions of the Act and the rules made thereunder to Alagumalai Nadar Chatram, Vilathikulam Town, Tirunelveli District. Such a step was taken by the Government for the following irregularities committed by the petitioner.

1. No charity is being performed even though there is enough income.

2. The accounts have not maintained

3. The chatram building has rented out to the Office of the Supervisor of the Tamil Nadu Electricity Board (Distribution).

4. For want of proper maintenance, the chatram building is in a dilapidated condition.

5. The properties belonging to the chatram had sold away, contrary to the conditions laid down in the deed dated the 14th May, 1981, as detailed below, namely:

(a) 0.44 cents of land in S. No. 36(82) and 1.15 acres in S. No. 55/4 in Vilathikulam Village were sold away to one Thiru S.V.M. Rathinaswami Nadar for a sum of Rs. 1,600/- on the 29th August, 1973.

(b) 5.67 cents of land in S. Nos. 186/2, 186/2, 186/5 and 186/7, in Kulathur Village were sold away to one Thiru Ramaswami Nadar for a sum of Rs. 9,500 on the 28th August, 1974.

6. No appropriate charity is performed from the remaining funds of the institution as per the conditions of the testator's deed dated the 14th May, 1921.

Before taking action, a preliminary Notification was published in the Tamil Nadu Government Gazette, dated 15.6.1977 and objections were received from the petitioner and others who were in management of the chatram.

6. This endowment was created by one Alagumalai Nadar as early as 12.4.1921 by a registered document, the direction given by the testator in this deed is to lit the light with oil in the memorial erected in memory of King George V Coronation, to do water pandal charities in the month of Chitrai every year on the occasion of Brahmothsavam of Arulmigu Meenakshisundareswarar temple in Vilathikulam and to perform such other Dharmams as is felt by the trustees. It has made clear in this document that the properties mentioned therein should not be alienated, that the chatram building has to be maintained properly, and that the income owned from these properties should be spent for the abovesaid purposes. Thus, it is clear that the dedication is absolute and not partial as pleaded by the petitioner herein. At this stage Mr. R.G. Rajan, learned Counsel appearing for the petitioner, contended that it is unnecessary to go into the question as to whether certain irregularities have committed or not if this Court comes to the conclusion that this is not a charitable endowment for which the provisions of the Act and the rules made thereunder can be extended. Hence, let me first consider as to whether the petitioner can succeed on this technical point before I advert to the other contentions raised by the learned Counsel for the petitioner.

7. Section 1(3) of the Act clearly states that this Act applies to all Hindu Public Religious Institutions and Endowments. Section 6(5) of the Act read as follows:

Charitable endowment' means all property given or endowed for the benefit of, or used as of right by, the Hindu or the Jain community or any section thereof, for the support or maintenance of objects of utility to the said community or section, such as rest-houses, choultries, patasalas, schools and colleges, houses for feeding the poor and institutions for the advancement of education, medical relief and public health or other objects of a like nature; and includes the institution concerned.

The document dated 12.4.1921 no doubt creates a charitable endowment. In The State of Madras v. The Urumu Seshachalam Chettiar Charities : (1960)2MLJ591 , a Bench of this Court had occasion to consider as to whether a particular charitable endowment is a Hindu Charitable Endowment. After referring to the main objects of the trust, the Bench held that unless it is exclusively for the benefit of the Hindus, a charitable endowment cannot come within the purview of the Act and the Government cannot extend the provisions of the Act and the rules made thereunder for such endowments. Referring to Section 6(5) of the Act, the Bench held as follows:

The expressions 'for the benefit of and 'used as of right of the Hindu community' should, in our opinion, have the same significance in relation to charitable endowments, as they have in relation to temples which are religious endowments. They should have the same meaning in construing either Section 6(4) or Section 6(17). In our opinion, even apart from the prefix 'Hindu' in relation to public charitable endowments in Section 3, the very definition of charitable endowments in Section 6(4) postulates the test of exclusiveness. Unless, for example, the benefit of the endowment is confined wholly to Hindus it would not be a charitable endowment as defined by Section 6(4). The prefix 'Hindu' to the expression 'public charitable endowment' in Section 3 tends, if anything, to emphasise that feature. When the benefit of the endowments is made such a decisive feature of the statutory concept of the charitable endowment by the definition in Section 6(4) of the Act, we can see no scope for accepting the contention of the learned Advocate General, that who the beneficiaries of the trust are is not determinative of the question, what constitutes a Hindu public charitable endowment for purposes of Section 3 of the Act.

8. Mr. S. Ramalingam, learned Government Advocate strenuously contended that there is no word 'exclusively' in Section 6(5) of the Act and to add such a word to that section is doing violence to the statutory provisions. The provision in the statute has to be read as it is and one cannot substitute or add words, to the existing enactment. For this purpose, Mr. S. Ramalingam cited the decisions reported in Renuka Bose v. Rai Manmatha Nath Bose . In that case, the Privy Council has held that it is contrary to all rules of construction to read words into an Act which are not there unless it is absolutely necessary to do so. In N. Mafatlal, Bombay v. Commissioner of Income-tax, Bombay City : [1954]26ITR758(SC) , the Supreme Court has held as follows:

The cardinal rule of interpretation, however is that words should be read in their ordinary, actual and grammatical meaning subject to this rider that in constructing words in a constitutional enactment conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude.

In S. Narayanaswami v. G. Paneerselvam : [1973]1SCR172 , the Supreme Court has held that the omission by the Constitution -- makers or by Parliament to prescribe graduation as a qualification of the candidate for the graduate constituency is deliberate and the Court cannot infer such a qualification as necessary by resorting to a presumed legislative intent as it would amount to adding it to those expressly laid down which is not generally permissible. In Taulata Syam v. The Commissioner of Income-tax, West Bengal : [1977]108ITR345(SC) , the Supreme Court has held as follows:

We have given anxious thought to the persuasive arguments of Mr. Sharan. His arguments if accepted, will certainly soften the rigour of this extremely drastic proviso and bring it more is conformity with logic and equity. But the language of Sections 2(6A)(e) and 12 (1B) is clear and unambiguous. There is no scope for importing into the statute words which are not there. Such importation would be, not to construe, but to amend the statute. Even if there be a casus omissus, the defect can be remedied only by legislation and not by judicial interpretation.

9. After citing the abovesaid decisions, Mr. S. Ramalingam, learned Government Advocate, contended that is the decision The State of Madras v. The Urumu Seshachalam Chettiar Charities : (1960)2MLJ591 , the learned Judges have added the word 'exclusively' to the statute and that should not have done is view of the above cited decisions and; hence this matter should be referred to a Full Bench. To further strengthen his case, Mr. S. Ramalingam cited the decision reported in Magor and St. Melldns Rural District Council v. Newport Borough Council (1951) 2 All E.R. 839. In that case, Lord Simonds dissenting from the view of Denning, L.J., who supported the view that it is the duty of the Court to find out the intention of the Parliament and not only of Parliament but also of Ministers, held that the words may be ambiguous, but, even if they are, the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited, and that if a gap is disclosed, the remedy lies in an amending Act. In that decision it has further held that there is no bar in interpreting a statute, but, the Court should, of course, carry its intention out, but, at is not the function of say judge to fill up what he considers to be a gap in an Act of Parliament, and that if he does so, he is usurping the functions of the Legislature.

In R.M. Viswanatha Pillai v. K.M. Shanmugham Pillai : [1969]2SCR896 , the Supreme Court while considering the Motor Vehicles Act, had occasion to observe that one should not insert words into the statute for giving relief to the party concerned.

10. Mr. R.G. Rajan, learned Counsel appearing for the petitioner, has absolutely no quarrel with the proposition of law enunciated in the above cited decisions. It is clear from those decisions that one cannot add or substitute words to the statute while interpreting the same. No doubt, Mr. R.G. Rajan referred to Maxwell on the Interpretation of Statutes, Twelth Edition, page 228 wherein the author deals with exceptional constructions. In this Chapter it has held as follows.

What is, then, being discussed here are instances in which the Courts will depart from the literal rule. Such instances are, however, exceptional, and it is impossible to lay down ordinarily any categories of cases in which ordinary grammetical interpretation will inevitably be abandoned: the Courts are very reluctant to, substitute words in a statute or to add words to it, and it has said that they will only do so where there is a repugnancy or something which is opposed to good sense.

I do not think that if is an exceptional case for the purpose of inserting or adding words to the provisions of Section 6(5) of the Act. A Bench of this Court to The State of Madras v. The Urumu Seshachalam Chettiar Charities : (1960)2MLJ591 , while dealing with Section 6(4) of the said Act, which is equivalent to Section 6(5) of the present Act, interpreted the words therein and held as follows:

In our opinion, even apart from the prefix 'Hindu', in relation to public charitable endowments in Section 3, the very definition of charitable endowments in Section 6(4) postulates the test of exclusiveness. Unless, for example, the benefit of the endowment is confined wholly to Hindus it would not be a charitable endowment as defined by Section 6(4).

Thus, it is clear that there is neither substitution nor adding the words 'exclusively' to the statute but the Bench has only interpreted Section 6(4) of the old Act as stated above.

11. The endowments in the case on hand are to lit the light with oil in the memorial erected in memory King George V Coronation to do water pandal charities in the month of Chitrai every year on the occasion of Brahmothsavam of Arulmigu Meenakshisundareswarar temple in Vilathikulam and to perform such other Dharmams as is felt by the trustees. The first endowment cannot be claimed as of right by a Hindu nor is it for the benefit of the Hindus. The second endowment is to Provide a water pandal charity not inside the Hindu temple but during the festival time. This will not be claimed as of right by any Hindu nor can it be said that the endowment is for the benefit of the Hindus. The third endowment is general in character and it is for the trustees to do such Dharmams as they want to do. Thus, apart from the fact that the endowments mentioned in the document are not exclusively for the Hindus, the duties to be performed as per the document cannot come within the definition of Section 6(5) of the Act and hence, the respondents have no statutory right to extend the provisions of the Act and the rules made thereunder to the present endowment. Further, in The State of Madras v. The Urumu Seshachalam Chettiar Charities : (1960)2MLJ591 , a Bench of this Court has only interpreted a particular provision in the Act and has not done any violence of the statute by substituting a word.

12. The document in question clearly states that the properties have absolutely dedicated for performing the charities, which I have extracted already in paragraphs supra. A reading of the document clearly makes out that the dedication is absolute. In Menakuru Dasaratharami Reddi and Anr. v. Duddkuru Subba Rao and Ors. : [1957]1SCR1122 , the Supreme Court has held as follows:

Dedication of a property to religious or charitable purposes may be either complete or partial. If the dedication is complete, a trust in favour of public religious charity is created. If the dedication is partial, a trust in favour of the charity is not created but a charge in favour of the charity is attached to, and follows, the property which retains its original private and secular character.

Whether or not dedication is complete would naturally be a question of fact to be determined in each case in the light of the material terms used in the document. In such cases it is always a matter of ascertaining the true intention of the parties; it is obvious that such intention must be gathered on a fair and reasonable construction of the document considered as a whole. The use of word 'trust' and 'trustee' is no doubt of some help in determining such intention; but the mere use of such words cannot be treated as decisive of the matter. The answer to the questions whether the private title over the property was intended to be completely extinguished or whether the title in regard to the property was intended to be completely transferred to the charity can be found not by concentrating on the significance of the use of the word 'trustee' or 'trust' alone but by gathering the true intent of the document considered as a whole.

Applying the abovesaid principle to the facts of the case on hand it is clear from the document of the year 1921 that the dedication is absolute.

13. Mr. R.G. Rajan, learned Counsel appearing for the petitioner, no, doubt argued on the question of failure of natural justice also in this case. Inasmuch as I have found that the charitable endowment is not a Hindu charitable endowment coming under the purview of Section 6(5) of the Act, it is unnecessary for me to deal with the failure of natural justice put forth by the petitioner in conducting the enquiry. Mr. R.G. Rajan, learned Counsel for the petitioner, fairly stated that if this Court is going to find that the provisions of the Act will not apply to the endowment in question, there is no heed to deal with the failure of natural justice contended by the petitioner.

14. For the foregoing reasons and also on the strength of the decision reported in The State of Madras v. The Urumu Seshachalam Chettiar Charities : (1960)2MLJ591 , I have no hesitation in holding that the respondents have no power under the Act to extend the provisions of the same to the endowment in question. Accordingly, the writ petition is allowed and the impugned Notification is quashed. There will be no order as to costs.


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