N. Sripadmanabha Nadar v. P. Ramalinga Nadar — 1991 DIGILAW 141 (MAD)

Judgment :- K.M. NATARAJAN, J. 1. The unsuccessful first defendant before the courts below has preferred this Letters Patent Appeal challenging the judgment and decree passed in A.S. No. 1150 of 1979 rendered by a learned single Judge of this court. 2. The brief facts which are necessary for the disposal of the appeal are as follows:— The respondents filed the suit for a declaration that the Kaikkan Pathy Narayanaswamy Trust is the private family trust of the respondents and others, namely, the appellant/first defendant and defendants 2 to 10 for removal of the appellant from management; for appointing new trustees and vesting trust properties in them; for rendition of accounts by the appellant from 28.8.1983 and for settling a scheme. The case of the respondents-plaintiffs is that one Parameswaran Nadar constructed a temple and installed, Narayanasami therein and he was conducting daily poojas, monthly kattalais and yearly festivals. The said Parameswaran Nadar acquired 11 items of properties for the said purposes. Respondents 1 and 2 are the sons of Parameswaran Nadar. Respondents 3 and 4 are his major grand-sons. During his life time, Parameswaran Nadar himself has constituted as the first trustee. For the management and administration of the temple and its properties, he also executed a registered Odampadi on 18.9.1952. As per the provisions of the said Odampadi Narayanaperumal Nadar, the eldest son of Parameswaran Nadar, was to assist his father during his life time and thereafter he was to enjoy the properties, realise the income therefrom and perform the poojas without default. The other members of the family were entitled to get prasadam and other emoluments. As per the said Odampadi Narayanaperumal Nadar was empowered to appoint his successor. Even after the execution of the registered Odampadi, the father Parameswaran Nadar purchased item 12 and he died subsequently on 12.1.1129 M.E. (28.8.1933) (1954 AD). His eldest son Narayanaperumal Nadar as per the Odampadi, succeeded him as trustee and he died on 23.5.1967, without appointing a successor and without maintaining accounts of the income as well as expenditure. Thereafter, the appellant/first defendant who is the son of the said Narayanaperumal Nadar got into the management of the temple and its properties and had been conducting poojas. But, he did not maintain accounts of the income and expenditure in respect of the trust properties, and he suppressed the same. Thereafter, the appellant/first defendant who is the son of the said Narayanaperumal Nadar got into the management of the temple and its properties and had been conducting poojas. But, he did not maintain accounts of the income and expenditure in respect of the trust properties, and he suppressed the same. Hence, the suit is filed by the respondents claiming that they have got a right to see that the trust properties are properly protected and the performance of the trust is properly conducted. 3. The appellant, who is the first defendant, resisted the suit and in the written statement, it was inter alia contended that no trust was founded by Parameswaran Nadar. Though Parameswaran Nadar acquired 11 items of properties, it is not admitted that such acquisition was in favour of any trust. The appellant claimed that Parameswaran Nadar was the absolute owner of the Pathy and Narayanaswamy. Narayanaperumal was managing the affairs of the Pathy as absolute owner.. The said Narayanaperumal appointed the appellant as his successor, and he is the absolute owner of the Pathy. From the date of appointment by Narayanaperumal, he remained in possession as absolute owner of the Pathy from 29.5.1967. He would state that he is the absolute owner of the Pathy and its properties from the date of his appointment by Narayanaperumal and nobody has any right or control over him or the Pathy or the properties. Further, nobody has any right to ask for any accounts. He has further stated that his father never kept any account and hence there is no question of any suppression of accounts. The respondents have no right to ask for framing a scheme for the management of the Narayanaswamy Pathy. After the death of Narayanaperumal the appellant renewed the building at a cost of Rs. 3,000/and has also spent about Rs. 2500/for constructing retaining walls and has collected materials for renovation of the pathy for Rs. 1500/-. Hence, he prayed for dismissal of the suit. 4. The second defendant filed a written statement contending that the respondents/plainliffs first defendant is in possession as absolute owner of the Pathy and that Narayana Perumal Nadar appointed the first defendant as his successor. Hence, he also prayed for dismissal of the suit. 5. 1500/-. Hence, he prayed for dismissal of the suit. 4. The second defendant filed a written statement contending that the respondents/plainliffs first defendant is in possession as absolute owner of the Pathy and that Narayana Perumal Nadar appointed the first defendant as his successor. Hence, he also prayed for dismissal of the suit. 5. Defendants 3 to 10 filed a written statement supporting the case of the plaintiffs/respondents herein and submitted that for better and efficient management of the trust, a scheme is to be framed. 6. The learned Subordinate Judge on the basis of the oral and documentary evidence held that Parameswaran Nadar has founded the private family trust that he was not the sole owner of the Pathy or the temple, that Narayanaperumal Nadar was only a trustee as per the registered Odampadi dated 18.9.1952, and that the first defendant/appellant was appointed as successor by his father Narayanaperumal. The learned Sub Judge also found that the first defendant deserves to be removed since he refused to maintain accounts and that the first defendant should render account from the date when he assumed management on 23.5.1967 till a suitable scheme is framed and the new Trustees take charge of the properties, and this will be worked out in the final decree proceedings. The trial Judge further held that the first defendant should remain in possession as Receiver from 24.8.1976, the date of the judgment, till a suitable scheme is framed and the new trustees take charge of the trust properties. The first defendant was directed to render accounts twice in a year. 7. As against the said decree, the first defendant/appellant preferred the first appeal before this court in A.S. No. 1150 of 1979 challenging the findings of the trial Judge. The learned single Judge of this Court on a careful consideration of the relevant materials, while accepting the contention of the respondents that the appellant was not validly appointed trustee, upheld the finding of the trial court that the appellant had rendered himself liable to be removed as he denied the trust and the trust character of the properties belonging to the trust. The learned single Judge also came to the conclusion that it is no longer safe in the interest of the trust estate and also the temple and the welfare of the beneficiaries to allow the management to continue in the hands of the appellant and consequently dismissed the appeal with costs holding that no interference with the judgment of the trial court is called for. Only in these circumstances, the Letters Patent Appeal has been filed. 8. Learned counsel for the appellant did not seriously dispute the concurrent findings of both the courts below. The learned counsel for the appellant mainly submitted that during the pendency of the proceedings, the Deputy Commissioner declared that the suit temple is a public one. As against the same, the appellant filed a suit, O.S. No. 78 of 1979 and the said suit was decreed on 31.3.1981 and as against the same, the department represented by the Deputy Commissioner filed A.S. No. 1115 of 1981 and the said appeal was allowed on the ground of want of notice under section 80 C.P.C. In view of the said finding, the original order passed by the Deputy Commissioner declaring the temple as a public one is restored. The learned counsel submitted that in view of the above decision that the suit trust is a public trust, the respondents/plaintiffs are not entitled to the reliefs prayed for in the suit and on that ground alone, the appeal is to be allowed. It is also contended by the learned counsel for the appellant contended that Parameswaran Nadar has two wives and all his family members, mules and females are not made parties. The details of the heirs of Parameswaran Nadar have been given in para 5 of the written statement. It was pointed out by the learned counsel for the appellant that the suit without impleading the other heirs of Parameswaran Nadar and the deity is not maintainable. On that ground also, the suit is liable to be dismissed. 9. On the other hand, the learned counsel for the respondents submitted that none of these erounds was raised before the appellate court as well as the trial court and that in para 12 of the judgment of the learned single Judge it is specifically observed that except the contentions referred to therein, no other point was urged on behalf of the appellant. As regards the suit said to have been filed against the decision of the Deputy Commissioner that it is a public temple, no records have been produced. Even otherwise, the respondents are not parties to the same and that they are not bound by those proceedings. Admittedly there is no deity in the temple, and only a vel is kept on a chair inside the Pathy as symbol of Narayanaswamy. Thus the prayer in the suit directing appellant to render an account of the income and expenditure, which he has not accounted so far, and for framing of a scheme would not in any way be affected by the alleged declaration that it is a public temple on the application filed by the appellant himself. The appellant cannot escape the liability to render an account of the income and expenditure in respect of the trust properties. The respondents never claimed any benefit for themselves. They have filed the suit only for the trust. The suit for rendition of accounts by a beneficiary is not barred under section 108 of the Hindu Religious and Charitable Endowments Act. The question of misjoinder and non-joinder of parties does not arise at this stage. The mere, plea in the written statement may not be sufficient without adducing independant evidence. No evidence was adduced and no issue was raised and hence the appellant is deemed to have waived that point. Admittedly the final decree was passed on 2.7.1982 and the said finding has not been challenged. As per the said finding, the appellant has to deposit Rs. 2,25,000/and odd. In view of the fact that the said finding has become final, it is not open to the appellant to raise all these contentions at this stage. A Bench of this Court has also directed the appellant to deposit Rs. 2,25,000/within three months. In spite of the fact that the time was extended for deposit of the said amount, so far the amount has not been deposited and the appellant is not entitled to ask for any indulgence from this court. The appellant has no right to appropriate the income for his personal benefit. Any worshipper can file a suit even in the case of a public temple. The appellant has no right to appropriate the income for his personal benefit. Any worshipper can file a suit even in the case of a public temple. Lastly it was submitted by the learned counsel for the respondents that no ground whatsoever was made out for interference with the concurrent finding and the appeal is liable to be dismissed. 10. After hearing the learned counsel appearing on either side, we find that the concurrent finding of both the courts below is not seriously disputed by the learned counsel for the appellant. The learned counsel put forward his arguments on the basis of the subsequent proceedings in respect of the nature of the trust and also the effect of non-joinder and the deity and the other beneficiaries. Let us consider the said contentions in seriatim. 11. As regards the effect of the sub-sequent proceedings instituted under the provisions of the Hindu Religious and Charitable Endowments Act, it is seen that after the suit was filed and during the tendency of the proceedings, the appellant himself has filed a petition to declare the suit trust as a private trust and on the said application, the Deputy Commissioner declared the institution as a public religious institution and the same was confirmed by the Commissioner. Thereupon a suit was filed and it was decreed to the effect that it is a private trust and not a public temple. The Department filed an appeal and it was allowed on the preliminary objection that the suit without issuance of a notice under section 80 C.P.C. is not maintainable. It is to be noted that the contention of the appellant throughout is that it is only a private family trust and not a public trust. The learned counsel for the respondents submitted that the suit was admittedly filed prior to parties and that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit. In this connection, our attention was drawn to the decision of the Supreme Court in Nand Kisore Marwah v. Samundri Devi 1. In this connection, our attention was drawn to the decision of the Supreme Court in Nand Kisore Marwah v. Samundri Devi 1. Their Lordships while considering the effect of the expiry of the exemption period of 10 years during the pendency of the litigation, held: “It is well settled that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit.” It was observed that even if 10 years expired during the pendency of the appeal, the tenant is not entitled to the protection under the Act. The said decision was considered by a Division Bench of this Court in S.N. Kuba v. P.P.I. Vaidhyanathan 2 and therein the view that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit was accepted and reiterated. It is also brought to our notice that in a suit between two rival claimants, wherein the Hindu Religious and Charitable Endowments Department is not a party, the civil court has jurisdiction to decide the question incidental to the same even though it is one which is to be decided by the Deputy Commissioner. In Sri Venkataramanaswamy Deity v. Vadugammar 3 a Bench of this court held as follows:— “The preponderance of judicial authority in the Madras High Court is that a civil suit is not barred in respect of a relief which cannot be granted by the Deputy Commissioner for Endowments and that in such a suit, the civil court has jurisdiction to decide incidental issues which are within the jurisdiction of the Deputy Commissioner.” In an earlier decision of this court in Ayisomma v. Kunhali 1 it was held: “A civil Court has jurisdiction to decide whether a particular institution is a public temple or not when such a question arises incidentally to other disputes in the case before the Court. The dispute referred to in Section 84 is a dispute between the trustee of an institution on one hand and the Board on the other. The dispute referred to in Section 84 is a dispute between the trustee of an institution on one hand and the Board on the other. The section does not bar either expressly or impliedly the jurisdiction of the civil Court when the dispute is not with the Board but between two private parties.” In this connection, the learned counsel for the respondents drew our attention to the decision of the Supreme Court reported in S.K.C. Muruga Konar v. Setha Kone 2 wherein their Lordships held: “Chapter VIII of the Act (Madras Hindu Religious and Charitable Endowments Act 1951) has no bearing on the question of the liability of a trustee to render accounts to the beneficiaries as a group or class andlit does not provide for determining or deciding a dispute in respect of such rendition of accounts and hence. Section 108 does not bar a suit filed by the group of beneficiaries against the trustees of the temple for rendition of accounts. The decree passed in such suit without deciding the question whether a temple was a public of private trust, would not be illegal.” In view of the ratio laid down in the above decisions, it is not open to the appellant to contend that the decree passed in this proceeding against him for rendition of accounts and for framing scheme is not enforceable in view of the subsequent decision invited by him during the pendency of the proceeding of the application filed by him that is a public religious institution. It is to be noted that the respondents are not parties to the said proceeding. Further, in respect of the same, no grounds have been raised except putting for the contention by way of arguments. Hence, we find no merit in the said contention. 12. As regards the question or nonjoinder of parties, the learned counsel for the appellant drew the attention of this court to the contentions raised in para 5 of the written statement, wherein it is stated that Parameswaran Nadar had two wives and all his family members, males and females, are not made parties. Further, Parameswaran had four sons by his first wife namely, Narayanaperumal, Ramalingam, Sriraman and Muthiah. The daughters of Narayanaperumal, Ramalingam, Sri Raman and Muthiah are not made parties. Muthiahs second wifes son is also not made party. Further, Parameswaran had four sons by his first wife namely, Narayanaperumal, Ramalingam, Sriraman and Muthiah. The daughters of Narayanaperumal, Ramalingam, Sri Raman and Muthiah are not made parties. Muthiahs second wifes son is also not made party. The second plaintiffs second wifes sons and daughters are also not made parties. As rightly observed by the learned counsel for the respondents, though the appellant made the said averments that Parameswaran Nadars heirs were not made parties, no issue was framed and no evidence was adduced and such contention was not put forward at any stage thereafter and for the first time he has come forward with this contention before this court. In view of the fact that the appellant has not pursued the same at the earlier stage, it is not open to the appellant to raise the same before this court in the Letters Patent Appeal. Even otherwise the mere fact that he made some averments would not mean that those persons are also interested in the trust and their presence is absolutely necessary for final adjudication in the suit claim. We find much force in the contention of the learned counsel for the respondents that there is absolutely nothing to substantiate the same. Since he was not pressing the same thereafter, he is deemed to have waived the said plea of non-joinder, we are of the view that the decree passed in the case directing the appellant to render accounts and for framing a scheme as he claimed adverse title to the trust properties and denied the existence of the trust, is correct. 13. It was next submitted by the learned counsel for the appellant that the deity is not impleaded as a party, that the suit can be filed in the name of the deity to enforce the private right and that the non-joinder of the deity is fatal. In this connection, he drew the attention of this court to the decision of the Supreme Court in Bishwanath v. Radha Ballabhur 3. That was a case where a suit was filed by an idol for a declaration of its title and possession of the property from a person who is in illegal possession under a void alienation. In this connection, he drew the attention of this court to the decision of the Supreme Court in Bishwanath v. Radha Ballabhur 3. That was a case where a suit was filed by an idol for a declaration of its title and possession of the property from a person who is in illegal possession under a void alienation. It was held that the suit being only in the nature of enforcement of a private right by the idol and not being for any one of the reliefs found in section 92 of the Code of Civil Procedure falls outside its purview and is not barred. Even in that case it was held that when such an alienation has been effected by the shebait acting adversely to the interest of the idol, even a worshiper can file the suit, the reason being that the idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. The said decision is not an all helpful to the case of the appellant in any way. Further, the present suit is filed by the beneficiaries of the private trust challenging the mismanagement of the appellant herein and misappropriation of the income from the trust, and praying for his removal and framing a scheme and also for rendition of accounts by him. They filed the suit only on behalf of the trust and as such, the question of impleading the idol does not arise. It is the admitted case that no idol was installed, but only a ‘vel’ is kept on a chair as a symbol of Narayanaswamy. In para 3 of the written statement, it is specifically stated that there is no deity or vigraham installed in the pat hy. But, they were offering worship only to a vel mounted on a chair inside the pathy as symbol of Narayanaswamy. In the circumstances, the question of non-joinder of idol also does not arise. Hence, we do not find any merit in the contention that the suit is bad for non-joinder of parties. But, they were offering worship only to a vel mounted on a chair inside the pathy as symbol of Narayanaswamy. In the circumstances, the question of non-joinder of idol also does not arise. Hence, we do not find any merit in the contention that the suit is bad for non-joinder of parties. The learned counsel for the respondents drew our attention to the decision of the Supreme Court in V.L.N.S. Temple v. I. Pattabhirami 1 where their The learned counsel for the respondents drew our attention to the decision of the Supreme Court in V.L.N.S. Temple v. I. Pattabhirami 2 where, their lordships of the Supreme Court while considering the scope of Sections 71, 19 and 23 of the Trusts Act with regard to ex-trustees liability for rendition of accounts and also the scope of Section 93 and Chapter 7 of the Madras Hindu Religious and Charitable Endowments Act 1951, held that no trustee can get discharge unless he renders account of his management and this liability is irrespective of any question of negligence or willful default. The present trustees can demand rendition of accounts from ex-trustees in respect of their management without alleging against them, any acts of negligence or willful default. It is further observed that under Section 9 of the Code of civil Procedure, the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It is a well settled principle that a party seeking to oust jurisdiction of an ordinary civil court shall establish the right to do so. Section 93 of the Act does not impose a total bar on the maintainability of a suit in a civil court. It states that a suit of the nature mentioned therein can be instituted only in conformity with the provisions of the Act, that is to say, a suit for other legal proceeding in respect of matters not covered by the section can be instituted in the ordinary way. It therefore imposes certain statutory restrictions on suits or other legal proceedings relating to matters mentioned therein. Now, what are those matters? The y are: (1) administration or management of religious institutions and (2) any other matter or dispute for determining or deciding which provision is made in the Act. It therefore imposes certain statutory restrictions on suits or other legal proceedings relating to matters mentioned therein. Now, what are those matters? The y are: (1) administration or management of religious institutions and (2) any other matter or dispute for determining or deciding which provision is made in the Act. The clause “determining or deciding which a provision is made in this Act” on a reasonable construction, cannot be made to qualify “the administration or management” but must be confined only to any other matter or dispute. Even so, the expression administration or management” cannot be construed widely so as to take in any matter however remotely connected with the administration or management. “Finally it is stated that” Chapter 7 does not provide for determining or deciding dispute in respect of rendition of account of management by ex-trustee to present trustee and hence the suit by present trustee against ex-trustee for rendition of accounts is not barred by S-93”. Applying the above ratio to the facts of this case, the suit for rendition of accounts even in case of religious institution conies under the purview of the Act and is not barred. 14. With regard to the framing of the scheme, the learned counsel for the respon dents drew the attention of this court to the decision of the Supreme Court reported in Jagdish Prasad v. Mahant Tribhuwan Puri 1 where their Lordships have observed: “Ram Mandir has been declared to be a public temple. There is no deed conferring the right on any person to manage the temple exclusively. There is a rival claim for the right of management. It would be, therefore, proper to frame a scheme for management. We, therefore, direct the District Judge to frame a scheme for proper management of the temple. In that scheme, plaintiff 1 since deceased by his L.R.S. and the defendant be given equal rights in the management. If they are not able to co-operate each other, they may be given such exclusive rights in the alternative periods of six months or one year. In that scheme, plaintiff 1 since deceased by his L.R.S. and the defendant be given equal rights in the management. If they are not able to co-operate each other, they may be given such exclusive rights in the alternative periods of six months or one year. The scheme also may provide the right to nominate the successor of plaintiff 1 end the defendant for management of the temple.” It is clear from the above decision of the Supreme Court that for proper management of the temple, in which both the rival parties have equal rights of management and there was rival claim made for management of the suit temple, a scheme can be framed. 15. In the instant case, admittedly the final decree was passed on 2.7.1982 and as against that, no appeal has been filed and it has become final. The concurrent finding rendered by both the courts against the appellant is supported by acceptable evidence and convincing reasons and we do not find any infirmity to interfere with the same. The learned counsel for the appellant has not advanced any argument before us challenging the said concurrent finding as already stated. For all these reasons and in view of the findings on the questions referred above, we have no hesitation in holding that the appellant has not made out any case for interfering with the concurrent finding of the courts below and as such the appeal deserves to be dismissed. 16. In the result, the appeal fails and stands dismissed. However, there will be no order as to costs.