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1970 DIGILAW 192 (KER)

Cheria Mammad Haji v. Raghavan

1970-09-18

P.S.POTI

body1970
JUDGMENT P. Subramonian Poti, J. 1. Plaintiffs sued for recovery of arrears of rent from the 1st defendant who was the tenant of Jenmi, the Devaswom, plaintiffs having subsequently taken a kanom deed from the Devaswom on 30th March 1960 in regard to the suit property and other properties. That kanom was executed by some only of the Ooralers of the Devaswom and without sanction having been obtained from the commissioner under the Madras Hindu Religious and Charitable Endowments Act, 1951. It is not disputed that the Jenmi Devaswom comes within the scope of that Act. Plaintiffs seek to justify the kanom on the ground that it was executed to avert the sale of the property of the Devaswom and therefore was very beneficial to the interests of the Devaswom. 2. It is agreed that all the Ooralers of the Devaswom have not joined in the execution of the kanom in favour of the plaintiffs. It is also agreed that sanction from the commissioner has not been obtained. It is contended that the kanom deed was executed to save the Devaswom from heavy loss and actually the interest of the Devaswom has been served by the execution of the deed. On that there does not appear to be much controversy. Is that sufficient to secure title under the kanom to the plaintiffs? That is the question raised in this second appeal. 3. Learned counsel relies on the decision of this Court reported in Vasu Nambisan v. Kesavan Nair (1963 K.L.T, 872). My learned brother Mathew, J. construing section 76 of the Madras Hindu Religious Endowments Act, II of 1927, which stood repealed by the Act of 1951, held that such a transfer without the sanction from the commissioner would only be voidable and not void and therefore until it is challenged by persons entitled to seek avoidance it continues to be operative. It is the case of learned counsel Sri Bhaskaran Nambiar that section 29 of the Madras Act XIX of 1951 which corresponds to section 76 of Act II of 1927 renders the kanom in favour of the plaintiffs only voidable and therefore until it is sought to be avoided, plaintiffs are entitled to enforce the kanom. I cannot agree. Reason is indicated below. 4. Section 76 of Act II of 1929 is certainly not identical to section 29 of Act XIX of 1951. I cannot agree. Reason is indicated below. 4. Section 76 of Act II of 1929 is certainly not identical to section 29 of Act XIX of 1951. There appears to be material difference between these two sections. I will now extract section 76 of the repealed Act and section 29 of Act XIX of 1951. Madras Act II of 1929: " 76 (1). No exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property belonging to any math or temple shall be valid or operative unless it is necessary or beneficial to the math or temple and is sanctioned by the Board in the case of maths and excepted temples and by the committee in the case of other temples. (2) The trustee of the math or temple or any person having interest may, within one year of the date of the order of the Board or committee under sub-section (1). apply to the court for modifying or, cancelling such order. (3) The order of the Board or committee under subsection (1) when no application is made under sub-section (2) and the order of the court when such application is made shall be final." Madras Act XIX of 1951: "29(1) Any exchange, sale or mortgage and any lease for a term exceeding five years of any immovable property belonging to, or given or endowed for the purposes of, any religious institution shall be null and void unless it is sanctioned by the commissioner as being necessary or beneficial to the institution: Provided that before such sanction is accorded, the particulars relating to the proposed transaction shall be published in such manner as may be prescribed inviting objections and suggestions with respect thereto; and all objections and suggestions received from the trustee or other persons having interest shall be duly considered by the commissioner. (2) When according such sanction, the commissioner may impose such conditions and give such utilization of the amount raised by the transaction, the investment thereof and in the case of a mortgage, regarding the discharge of the same within a reasonable period. (3) A copy of the order made by the commissioner under this section shall be communicated to the Government and to the trustee and shall be published in such manner as may be prescribed. (3) A copy of the order made by the commissioner under this section shall be communicated to the Government and to the trustee and shall be published in such manner as may be prescribed. (4) The trustee may within three months from the date of his receipt of a copy of the order, and any person having interest may within three months from the date of the publication of the order, appeal to the Government to modify the order or set it aside. (5) Nothing contained in this section shall apply to the inams referred to in section 35." 5. My learned brother Mathew, J. was of the view that looking at the purpose and the policy underlying section 76 it can be said that the section does not render the alienations referred to in that section void even if sanctions as required were not obtained. The learned Judge felt that the section is intended to protest the interests of the temple concerned, and was not intended to give a handle to a person taking a mortgage from the trustee for refusing to surrender the property by pleading the invalidity of the mortgage. This section was therefore construed as rendering the transfer in question voidable only. It may be noticed that section 76 (1) only specifies that transfers of a certain class shall not be valid or operative unless two conditions are satisfied and those conditions are that they should be beneficial to the math or temple and they should be sanctioned by the Board or by the committee as the case may be. The framers of the Madrass Hindu Religious and Charitable Endowments Act, 1951 had before them the language of section 76. But they chose to frame section 29 differently. That section provided that transfers of the category or class referred to in section 76 of the repealed Act would be null and void unless they are sanctioned by the commissioner as being necessary or beneficial to the institution. Under section 29 it is not for the court to consider whether the transfers are beneficial to the institution or whether they are necessary to preserve the interests of the institution. That is a matter for the commissioner to be satisfied about and it is for him to give sanction on his being so satisfied. Under section 29 it is not for the court to consider whether the transfers are beneficial to the institution or whether they are necessary to preserve the interests of the institution. That is a matter for the commissioner to be satisfied about and it is for him to give sanction on his being so satisfied. The court is only to ascertain whether there is such sanction and if there is none the transfer belonging to the class under section 29 of the Act has to be held to be null and void. 6. Therefore, in view of the different language employed in section 29 of Act XIX of 1951, I have to hold that any transfer in contravention of provision in section 29 of the Act must be held to be null and void. The decision reported in Vasu Nambisan v. Kesavan Nair (1963 K.L.T. 872) has therefore no application in the matter of construction of section 29 of Act 19 of 1951. I therefore hold that the kanom taken by the plaintiffs is void. If that be the case, the suit has to be dismissed. I therefore dismiss this second appeal. In the circumstances, I direct both parties to suffer costs.