Mathevan Pillai v. Viswanatha Ninar — 1951 DIGILAW 7 (KER)

Judgment :- 1. Defendants 1 and 2 are the appellants. The 1st plaintiff is an Idol known as Ninar Kasi Viswanatha Ninar. The plaint properties were said to belong to that Idol. This Idol represents the family deity of plaintiffs 2 to 6 and the deceased Sivasubramania Pillai who was the father of defendants 1 and 2. The plaintiffs and the said Sivasubramonia Pillai were stated to be members of an undivided Nanjinad Vellala tarwad. The plaint property and others were dedicated from their tarwad to the 1st plaintiff deity long ago. The Patta and the Thandaper for the same stood in the name of the 1st plaintiff. The tarwad took the yield from the properties and utilised the income for the puja and other ceremonies in the temple. The deceased Sivasubramonia Pillai had no separate rights whatever over these properties. He had however executed Ext. C Settlement Deed by which the plaint properties were settled upon defendants 1 and 2. This document was invalid so far as the plaint properties were concerned. There was an allegation that Ext. C itself was executed while Sivasubramonia Pillai was in his death bed, and at a time when he was not in a position to understand the nature of the document. This document had not come into effect. But on the strength of this the defendants were attempting to trespass into the property. The plaintiff had therefore prayed for a declaration that these properties belonged to the 1st plaintiff, that Sivasubramonia Pillai was incompetent to deal with the same, and that defendants 1 and 2 were to be restrained by an injunction from entering upon the properties. It was also prayed that in case the defendants 1 and 2 secured possession of the properties, they were to be ordered to surrender them to the plaintiffs with mesne profits at 141/8 kottas of paddy and 430 fanams a year. The defendants 1 and 2 contested the suit. They admitted that the plaint properties had been registered in the name of the 1st plaintiff. But they would say that they did not belong absolutely to the 1st plaintiff; for the properties still remained with the tarwad of plaintiffs 2 to 5 and the deceased Sivasubramonia Pillai. About the year 1072 these properties were divided among the members of the tarwad, and under that division Sivasubramonia Pillai got the plaint properties. But they would say that they did not belong absolutely to the 1st plaintiff; for the properties still remained with the tarwad of plaintiffs 2 to 5 and the deceased Sivasubramonia Pillai. About the year 1072 these properties were divided among the members of the tarwad, and under that division Sivasubramonia Pillai got the plaint properties. He was therefore competent to execute Ext. C settlement deed. There was only an obligation to spend the necessary amount to conduct the ceremonies and pujas in the temple, as was the custom till then. They asserted that they were in possession of the properties from the date of death of Sivasubramonia Pillai. They also stated that they were paying their share of the income for conducting the puja. According to them, the mesne profits mentioned in the plaint were not correct. The plaintiffs were stated to be not entitled to any relief. The plaintiffs filed a replication. They denied the alleged partition of 1072. The properties really belonged to 1st plaintiff, and the members of the tarwad were only managers of the same. The managers were incompetent to deal with those properties. Being so, it was incompetent for Sivasubramonia Pillai to deal with those properties or to include the same in the settlement deed. The defendants were not contributing anything for the puja, and they were not entitled to attend to the ceremonies in the temple. The plaintiffs pressed for a decree as prayed for in the plaint. 2. The court below found that the defendant's father Sivasubramonia Pillai had no partible or heritable right over the plaint properties, that as a member of the tarwad which endowed the plaint properties in favour of the temple he had only a joint right of management with other members, that by an arrangement made by a prior karnavan of the tarwad he was also in enjoyment of a portion of the plaint properties and contributing to the expenses of the trust and paying the taxes, that the settlement deed Ext. C executed by him in favour of defendants 1 and 2 was null and void and not binding on the 1st plaintiff or the plaint trust, that Sivasubramonia Pillai executed Ext. C with full consciousness, and that the plaintiffs were entitled to the injuction prayed for. C executed by him in favour of defendants 1 and 2 was null and void and not binding on the 1st plaintiff or the plaint trust, that Sivasubramonia Pillai executed Ext. C with full consciousness, and that the plaintiffs were entitled to the injuction prayed for. The plaintiffs were therefore allowed to recover the plaint properties with mesne profits at the rate mentioned, viz., 141/8 kottas of paddy and 430 fanams a year, till recovery of possession. The plaintiffs were allowed three-fourths of their costs from defendants 1 and 2. 3. The plaint properties stood registered in the name of the 1st plaintiff. That was so even before 1012, for Exts. A and B the settlement proceedings relating to these properties show that under the Ayakat these properties stood in the name of the 1st plaintiff. That these properties had been registered in the name of the 1st plaintiff had been admitted by defendants 1 and 2 in paragraph 8 of their written statement. Under the Hindu Law, the Idol is a juridical person and when the dedication of the properties to the Idol is in the completest character, the properties comprised in it belong to the Idol. The Dharma Kartha or the manager of the temple where the Idol was installed would have the right to represent the Idol and to be in possession and management of the dedicated properties. The right to sue in respect of those properties would vest in that manager or Dharma Kartha. What was necessary for the foundation of a charitable endowment was that the purpose should be clearly specified and the properties intended for the endowment should be set apart as dedicated for the purpose. It was also necessary that the donor should divest himself of the property. The evidence of divestiture may be contemporaneous and in such a case the subsequent acts and conduct of the donor are irrelevant and cannot re-invest him. Vide the Privy Council ruling Sunder Singh v. Sunder Singh (AIR 1938 PC 73). As mentioned already, Exts. A and B are copies of the settlement proceedings relating to these properties. The evidence of divestiture may be contemporaneous and in such a case the subsequent acts and conduct of the donor are irrelevant and cannot re-invest him. Vide the Privy Council ruling Sunder Singh v. Sunder Singh (AIR 1938 PC 73). As mentioned already, Exts. A and B are copies of the settlement proceedings relating to these properties. The members of the tarwad had appeared in the proceedings and given statement that these properties had been dedicated to the temple of the 1st plaintiff, that some properties had been given by the Government also for the puja in the temple, and that the members of the tarwad were managing the affairs of the temple as Dharma Karthas. These documents further showed that even at the time of the Ayakat these properties stood registered in the name of the 1st plaintiff. The thandaper also stood in the name of the deity. The Patta for the properties were ordered to be issued to the members of the tarwad in their capacity as Dharma Karthas. From these it is possible to hold that there was a complete dedication of these properties by the tarwad to the Idol. These included also some properties granted by the Government for puja in the temple. The dedication was therefore complete and no manager of these properties would have any right to deal with them as if they belonged to him exclusively. The defence contention that these properties, though registered in the name of the Idol, still remained as the property of the tarwad could not therefore be accepted. It was seen that portions of these properties were in the possession of the tarwad. That was because of an arrangement made by the Karnavan of the tarwad who was evidently the Dharma Kartha of the temple at the time. The several members of tarwad were allowed to cultivate the properties and to utilise the income for the puja and ceremonies in the temple. This arrangement would not amount to a re-investment of the properties in the tarwad. The properties belonged absolutely to the Idol, and except for absolute necessities in connection with the management of the temple, no one could alienate these properties. The 2nd plaintiff also seemed to have executed Ext. VI settlement deed in favour of his wife and children. This cannot in any way affect the rights of the Idol. The settlement deed Ext. The properties belonged absolutely to the Idol, and except for absolute necessities in connection with the management of the temple, no one could alienate these properties. The 2nd plaintiff also seemed to have executed Ext. VI settlement deed in favour of his wife and children. This cannot in any way affect the rights of the Idol. The settlement deed Ext. C could not therefore be binding on the plaint properties or the rights of the Idol over the same. Admittedly, plaintiffs 2 to 6 are members of the tarwad to which the temple belong and they are therefore competent to maintain this suit. In the view that we have taken in the matter we find that the decree passed by the lower court is correct. It is therefore confirmed and the appeal dismissed with costs. Appeal dismissed.