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1988 DIGILAW 24 (MAD)

Pazhaniyandi v. Kalyanasundaram

1988-01-13

M.N.CHANDURKAR

body1988
ORDER M.N. Chandurkar, C.J. 1. The premises in question which is in the occupation of the present petitioner as a tenant originally belonged to one Sampoorna Gurukkal who created a Trust as far back as on 13.3.1917 by a Deed of Trust. The premises in question was indisputably included in the trust property. The relevant part of the Trust Deed as translated in English reads as follows: ...The properties mentioned in the schedule hereunder are my absolute properties. I hereby endow those properties for the purpose of residence of persons doing Pooja to Sri Prathigridhaeswaraswami and Sri Vaidhyanathaswami at Tittakudi and also for performance of other charitable objects from and out of the income from these properties. You are hereby appointed as trustee to manage the property and maintain accounts therefor. I have delivered possession of the property to you.... The respondent who is an Archaka of the temple filed a proceeding under Sections l0(2)(1), 10(2)(ii)(a) and 14(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 (hereinafter referred to as the 'Rent Control Act') claiming possession on the two grounds, namely, that the tenant was a wilful defaulter not having paid rent for the period from 1.10.1976 to 6.3.1980 and that the premises was needed Bona Fide for demolition and reconstruction. Subletting by the tenant was also alleged. 2. Apart from contesting the claim on merits the tenant's case was that the premises were exempted from the operation of the Rent Control Act by G.O. Ms. No. 2000, Home, dated 16.8.1976, by which the Government had exempted all the buildings owned by the Hindu, Christian and Muslim religious public trusts and public charitable trusts from all the provisions of the said Act. 3. The Rent Controller found that the monthly rent was Rs. 50 per month from 1.10.1976 but so far as the default was concerned, he found that from the date of filing of the petition till the date of the arguments, the tenant had not paid the admitted rent. With regard to the other two points, the Rent Controller found, against the tenant. 4. With regard to the defence that the property was exempted from the provisions of the Rent Control Act, the Rent Controller took the view that the Trust created by the said Sampoorna Gurukkal was not a public charitable Trust. The Rent Controller allowed the application of the landlord. 4. With regard to the defence that the property was exempted from the provisions of the Rent Control Act, the Rent Controller took the view that the Trust created by the said Sampoorna Gurukkal was not a public charitable Trust. The Rent Controller allowed the application of the landlord. The appeal against the decision of the Rent Controller was dismissed by the Appellate Authority who held that the Trust Deed was created for the purpose of providing dwelling place for the Archakas of the temples mentioned therein. However, he went on to observe that from a reading of Ex. B3, which is the Trust Deed, he is not in a position to find out whether the dedication was for private purpose or for public purpose. Finally he confirmed the findings recorded by the Rent Controller. 5. In this revision petition at the threshold it is argued on behalf of the tenant that having regard to the recitals reproduced earlier, there could be no doubt that there was a dedication to the public and an endowment for charitable objects, with the result that the Trust was a public charitable Trust. Therefore, according to the learned Counsel, the property was exempted from the operation of the Rent Control Act by G.O. Ms. No. 2000, Home dated 16.8.1976. 6. The learned Counsel appearing on behalf of the landlord, however, referred to the expanded definition of 'landlord' in Section 2(6) of the Act and contended that he was a trustee and in that capacity, he was entitled to take proceedings under the Rent Control Act. His further argument was that the Trust in question was a private Trust making provision for the dwelling of the Archakas and for providing income to them by letting out the property and making use of that income for the purpose of their sustenance. 7. The question as to whether the petitioner would be entitled to apply for eviction in view of the expanded definition of 'landlord' would arise only if the provisions of the Rent Control Act could be invoked by the landlord. The basic question which, however, falls for consideration in this case is whether the premises are exempt from the operation of the Rent Control Act in view of the recital in the Trust Deed. The basic question which, however, falls for consideration in this case is whether the premises are exempt from the operation of the Rent Control Act in view of the recital in the Trust Deed. There is nothing in the Trust Deed to show that it was ever intended by the settlor to make provision for income of the Archakas by permitting them to let out the property. If that was the object, undoubtedly the Trust would have become a private Trust. The purposes which are set out in the Trust Deed show that the endowment is for the purpose of residence of persons doing pooja at the temples mentioned therein and also for the purpose of other charitable objects for which expenses are to be met from and out the income of the Trust property. 8. Admittedly, the two temples in question are public temples and if a provision is made for the purpose of providing residence to the Archakas of these temples, it will be only incidental to the purpose for which the main temples themselves have been established. Therefore, merely because the Trust Deed provided for allowing the Archakas to reside in the Trust property and that was incidential to the purposes of the public trust, namely, performing the pooja in the temples which were open to the public, the Trust cannot be said to be a private Trust. Indeed, the other part of the Trust deed that the income from the trust should be utilised for the purpose of other charitable objects would also indicate that it was the clear intention of the settlor that the income from the property which was the subject matter of the Trust and which was endowed in favour of the temples would be utilised for charitable purposes. 9. The learned Counsel appearing on behalf of the petitioner has, in my view correctly relied upon the decision of the Supreme Court in Pratapsinghji v. Dy. Charity Commissioner, Gujarat. The Supreme Court reiterated the well-established proposition in that decision that the essence of a public endowment consists in its being dedicated to the public. The following passage from Mulla's Hindu Law in para 424 at pages 544 to 545 was quoted with approval in paragraph-11 of that decision: Religious endowments are either public or private. In a public endowment the dedication is for the use or benefit of the public. The following passage from Mulla's Hindu Law in para 424 at pages 544 to 545 was quoted with approval in paragraph-11 of that decision: Religious endowments are either public or private. In a public endowment the dedication is for the use or benefit of the public. The essential distinction between a public, and a private endowment is that in the former the beneficial interest is vested in an uncertain and a fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description. In a private endowment the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained. The fact that the fluctuating and uncertain body of persons is a Section of the public following a particular religious faith or is only a set of persons of a certain religious persuasion would not make it a private endowment. The essence of a public endowment consists in its being dedicated to the public and in the absence of any document creating the endowment, long user is the material factor from which an inference of dedication may arise. Beside user by the public, conduct of the founder and his descendants is also relevant, and if they in fact hold out the temple to be a public one a very strong presumption of dedication would arise. When property is set apart for the worship of a family God in which the public are not interested, the endowment is a private one. The beneficiaries of the endowment in the present case are not the members of the family of the settlor. The real beneficiaries are the idols of the two temples for whose Archakas the property has been settled partly. Provisions has also been made for utilising the property for charitable purposes. The recitals, in my view, indicated that the endowment was a public endowment and the Trust was clearly a public charitable Trust. Having regard to G.O. Ms. No. 2000, Home, dated 16.8.1976, it is clear that both the Courts were in error in assuming jurisdiction to decide the petition for eviction filed by the landlord. In the view which I have taken, it is unnecessary to go into the merits of the findings recorded with regard to the claim that the tenant was a wilful defaulter or that the building was needed for demolition and reconstruction. 10. In the view which I have taken, it is unnecessary to go into the merits of the findings recorded with regard to the claim that the tenant was a wilful defaulter or that the building was needed for demolition and reconstruction. 10. The result, therefore, is that this revision petition is allowed. The orders of the Rent Controller and the Appellate Authority are set aside. The petition for eviction stands dismissed. However, there will be no order as to costs.