Paramasivam v. . — 1997 DIGILAW 465 (MAD)

Judgment :- 1. Defendants in O.S. No. 1801 of 1981, on the file of District Munsifs Court at Ponneri, are the appellants. 2. The suit which was originally for injunction, was later converted into one for recovery of possession, on the following allegations: — An area of 2-38 acres of land comprised in A.S. No. 70 and R.S. No. 120/1, Vellaian Kuppam originally belonged to the father to the only plaintiff Amaravathi Ammal the property was originally dedicated to Vinayagar Temple of Pachetty Village and the property was allotted to the father of the plaintiff. T. Doraiswamy. From 1962 onwards, plaintiff has been looking after t he land and has been making personal cultivation of the entire area of land, and from out of the proceeds, both paddy and cash were given to the Poojari, one Nataraja Mani Iyer, who was in charge of the Temple. While so, the father of the plaintiff sold the above property to S. Ravi Kumar (first plaintiff) on 28-8-1981. (First plaintiff was included in the party array subsequently). After the execution of the sale deed, father of the second plaintiff passed away on 15-10-1981, and the second plaintiff who was earlier looking after the property with the help of her father, continued to look after on behalf of her sisters son Ravikumar. It is said that the second plaintiff is also owning lands adjacent to the plaint schedule and the same is situated on the western side having an extent of more than 7 and odd acres. Second plaintiff is also having a pump set in her land, and the suit lands were also fed by the water from the pump set. Therefore, it was easy for the second plaintiff to cultivate both the lands, i.e., property belonging to her and the plaint schedule items. It is said that the first defendant is the uncles son of the second plaintiff. First defendants father and second plaintiffs father are cousins. First defendant is the grandson of late Vadivel Mudaliar, who is none other than the uncle of the plaintiffs father. On 22-1-1924, there was a partition between the second plaintiffs father and the aforesaid Vadivel Mudaliar under which certain properties were divided and some of the properties covered under the partition deed were assigned for the Poojas in the Vinayagar Temple mentioned above. On 22-1-1924, there was a partition between the second plaintiffs father and the aforesaid Vadivel Mudaliar under which certain properties were divided and some of the properties covered under the partition deed were assigned for the Poojas in the Vinayagar Temple mentioned above. But, under the arrangements made between the said Vadivel Mudaliar and second plaintiffs father, the suit property has been allotted exclusively to the second plaintiffs father and it has been clearly understood and declared that Vadivel Mudaliar cannot have any right, title or interest over the said lands. In fact, these things have been disclosed by the second plaintiff in the sale deed dated 28-8-1981. While so on 23-12-1981, first defendant attempted to trespass into the property and also attempted to harvest the crops. The unlawful entry was sought to the prevented. But the same could not materialise and, therefore, plaintiffs were compelled to file the above suit for injunction. After amendment of the plaint, a relief of recovery was also prayed for, since defendants were found to be in possession. 3. In the written statement filed by the defendants, they dispute the claim of the plaintiffs. According to them, the plaint property was absolutely dedicated to the Vinayagar idol, their family deity and the Trust still continues. It is further averred that the sale deed executed in favour of first plaintiff is invalid and the second plaintiff is not having any right over the same. It is further said that the first defendant is the grandson of late Vadivelu Mudaliar. The allegation that there was an arrangement between second plaintiffs father and Vadivelu Mudaliar regarding allotment of properties is also denied. According to them, plaintiffs are not having any right over the property, and the idol alone is the owner. They pray for dismissal of the suit. 4. Trial Court took oral and documentary evidence. 5. Exx.A-1 to A-11 were marked on the side of the plaintiffs. Both the plaintiffs were examined as P.Ws.1 and 2. Defendants, on their side marked Exx.B.1 to B-19, and, as oral evidence, D.W.1 to D.W.4 were examined. Exx.C-1 and C-2 are Commissioners Report and plan in the case. 6. The trial Court, after evaluating the entire evidence, was of the view that the property originally belonged to the family Temple, as shown in the partition deed Ex.A-8, dated 22-1-1972. Defendants, on their side marked Exx.B.1 to B-19, and, as oral evidence, D.W.1 to D.W.4 were examined. Exx.C-1 and C-2 are Commissioners Report and plan in the case. 6. The trial Court, after evaluating the entire evidence, was of the view that the property originally belonged to the family Temple, as shown in the partition deed Ex.A-8, dated 22-1-1972. Even though the same was given to the idol, it is found that there was a subsequent arrangement by which Vadivelu Mudaliar, predecessor-in-interest and one of the executants of Ex.A-8 partition deed, and the plaintiffs predecessor, have mutually arranged, by which the Trust was put an end to, and the property was allotted separately. It is further found that Vadivelu Mudaliar has already alienated the property which was given to him. It is further found that of the three branches which executed Ex.A-8 partition deed, one of the branches represented by Krishnaswami Mudaliar did not have an interest in the plaint items, and the other two branches were dealing with the same, and, even as between them, there was an arrangement, as alleged in the plaint. It was further found that the first plaintiff has obtained valid title to the property and since the defendants are in possession, plaintiffs are entitled to recover. The claim put forward by the appellants that they are the tenants or lessees under the Temple, was found against. The suit was decreed as prayed for. 7. The matter was taken in Appeal by the defendants as A.S. No. 42 of 1991, on the file of Sub Judge, Tiruvallur. The lower Appellate Court also confirmed all the findings of the trial Court and dismissed the Appeal. It is the concurrent judgment that is challenged in this second Appeal. 8. At the time of admission of the Second Appeal, the following substantial questions of law were raised for consideration:— “1) Whether the Courts below are right in going into the question as to whether the Vinayagar Temple to whom the suit properties have been dedicated under Ex.A-8 is a public temple or private temple, without making the temple as party and without pleadings and evidence and without a prayer for declaration of title? and 2) Whether the property that has been dedicated to the Temple under Ex.A-8 can be taken away by the family members under the guise of entering into some arrangement, that too orally, without any instrument?” 9. Both the questions of law could be considered together. 10. The main question to be considered in this case is, regarding the interpretation to Ex.A-8. The further question that requires decision is, if there had been an absolute dedication of the property in favour of the idol, though it belonged to the plaintiffs family whether the same could be put an end to, and whether that arrangement can be recognised in law. If the answers to these questions are found in favour of the appellants, naturally, the suit can only be dismissed. 11. Even in the plaint, it is admitted that the property was originally dedicated to Vinayagar Temple. Of course, the trial Court as well as the lower Appellate Court has held without considering this admission that the properties were only reserved for Poojas to the Temple, and that the income alone is earmarked for the same. In that view, the trial Court as well as the lower Appellate Court has held that there is no absolute dedication that the property continued to be with the family. It is on the basis of that finding, the trial Court as well as the lower Appellate Court came to the conclusion that the arrangement pleaded by the plaintiffs can be true. According to me, the trial Court as well as the lower Appellate Court has not considered Ex.A-8 in its proper perspective. In fact, the various provisions in the deed itself were not taken into consideration. They have misinterpreted the document without looking into the same. 12. Ex.A-8 is a partition between the three branches of an undivided family, and they were allotted A, B and C Schedule items. ‘D’ Schedule was earmarked for the idol in Vinayagar Temple. Even at the time when the partition was entered into, Patta stood in the name of the Idol. That is referred to in the last portion of the deed itself. It is further provided in the deed that the property earmarked for the idol is left in common, and member of the three branches is entitled to be in management of the Temple every year on rotation. That is referred to in the last portion of the deed itself. It is further provided in the deed that the property earmarked for the idol is left in common, and member of the three branches is entitled to be in management of the Temple every year on rotation. It is further found that the various ‘Kattalais’ should be performed without fail, and the property should remain in common without being partitioned by anyone. The entire income of ‘D’ Schedule items is earmarked for the performance of ‘Kattalais’ to the idol, and it is further found that if any further amount is required for maintenance of the Temple, all the three Branches must spend the same equally. It is seen that the kist was also paid in the name of the idol. A reading of Ex.A-8 makes it clear that it is not the income alone that is earmakred, but even at the time when the partition was entered, the ownership was with the idol. In fact, even though various items are included in various Schedules in Ex.A.-8 so far as the ‘D’ Schedule item is concerned, it is not a fresh allotment to the Idol, by the document only declared that the property in ‘DSchedule shall remain as before and it is only an arrangement of a management on rotation. No portion of ‘D’ Schedule items were allowed to be dealt with by the members of the family, in any manner. If this is the purport of the document, the finding of the Courts below that only the income is reserved for the idol is a misreading of the document. According to me, the Courts below have only considered the headings of the document where the allotment of ‘D’ Schedule property is made, but, after the description of the schedule, various other provisions have also been made, which have been omitted to be considered by the Courts below. The said omission has materially affected the decision of the case. The material provision in the deed was not taken into consideration by the trial Court, which was confirmed by the lower Appellate Court. With this, we should also take into consideration the admission in the plaint that the property was originally dedicated to Vinayagar Idol., (Emphasis). The said admission is also found in paragraph 6. The material provision in the deed was not taken into consideration by the trial Court, which was confirmed by the lower Appellate Court. With this, we should also take into consideration the admission in the plaint that the property was originally dedicated to Vinayagar Idol., (Emphasis). The said admission is also found in paragraph 6. The relevant portion of paragraph 6 reads thus: — “On 22-1-1924, there was a partition deed between the second plaintiffs father and the aforesaid Vadivel Mudaliar, under which certain properties were divided and some of the properties covered under the partition deed were assigned for the Poojas in the Vinayagar Temple mentioned above. “(Emphasis supplied). In the sale deed Ex.A-8 taken in the name of the first plaintiff on 28-8-1981 also, at pages 2 and 3, it is said: Tamil From these documents, it is clear that the plaint property was owned by the idol, and it is not the income alone that was earmarked for performance of Poojas and others ‘Kattalais’. Pata and revenue receipts have been issued only in the name of the idol, and, as I have said earlier, Ex.A-8 declares that the property will continue as property of the idol. 13. In A.I.R. 1954 S.C. 69 (Sree Sree Ishwar Sridhar Jew v. Mst. Sushila Bala Dasi and others), their Lordships said that dedication can be partial or absolute. It was held thus:- “A decision may be either absolute or partial. The property may be given out and out to the idol, or it may be subjected to a charge in favour of the idol. The question whether the idol itself shall be considered the true beneficiary, subject to a charge in favour of the heirs or specified relatives of the testator for their upkeep, or that, on the other hand, these heirs shall be considered the true beneficiaries of the property, subject to a charge for the upkeep, worship and expenses of the idol, is a question which can only be settled by a conspectus of the entire provisions of the will. AIR 1921 PC 20, Rel. on. AIR 1921 PC 20, Rel. on. Thus where by a Will certain premises were expressly declared as absolutely dedicated to a deity as its permanent habitation with only the right given to the Sevayats to reside in the said premises for the purposes of carrying on the daily and periodical seva and the festivals etc., of the deity, the premises were to be registered in the Municipal records in “the name of the deity, the Municipal bills were to be taken also units name and none of the testators representatives, heirs, successors, executors, administrators or assigns were to have any manner of interest in or right to the said premises or were be competent to give away or effect sale, mortgage etc., of the said premises; Held that there was a clear indication of the intention of the testator to absolutely dedicate the said premises to the deity. 2) that the right given to the sevayats did not detract from the absolute character of the dedication. 14. In A.I.R. 1957 S.C. 133 (Deoki Nandan v. Muralidhar and others), their Lordhips said thus: — “Under the Hindu Law, an idol is a juristic person capable of holding property and the properties endowed for the institution vest in it . But does not follow from this that it is to be regarded as the beneficial owner of the endowment. It is only in an ideal sense that the idol is the owner of the endowed properties and it cannot have any beneficial interest in the endowment.” (Emphasis supplied) 15. In A.I.R. 1965 S.C. 1874 ((Nirmala Bala v. Balai Chand), the decision in AIR 1954 SC 69 (Supra) was followed. In the case on hand, it may be noted that no beneficial interest was reserved in favour of the executants of Ex.A-8 deed. 16. In (1974) 1 SCC 615 (Sappani Mohamed Mohideen and other v. R.V. Sethusubramania Pillai and others), in paragraph 23 of the judgment, their Lordships held thus: — “Whether the endowment is absolute or partial, primarily depends on the terms of the grant. If there is an express endowment, there is no difficulty. If there is only an implied endowment, the intention has to be gathered on the construction of the document as a whole. If the words of the document are clear and unambiguous, the question of interpretation would not arise. If there is an express endowment, there is no difficulty. If there is only an implied endowment, the intention has to be gathered on the construction of the document as a whole. If the words of the document are clear and unambiguous, the question of interpretation would not arise. If there be ambiguity, the intention of the founders has to be carefully gathered from the scheme and language of the grant. Even surrounding circumstances, subsequent dealing with the property, the conduct of the parties to the document and long usage of the property and other relevant factors may have to be considered in an appropriate case”. 17. In this case, it may be noted that the defendants have produced the Adangal extracts, namely, Exx.B-1, to B-6. They show that even the kist is paid in the name of the idol. Ex.B-7 is the Chitta wherein it is said that the property stands in the name of the idol Selva Vinayagar. Both the schedule items are made mention of in Ex.B-7. From the above documents, the only decision that could be arrived at is, that the property belonged only to the idol Selva Vinayagar, the family deity of plaintiff and first defendant. 18. If it is a family deity, and the property was also dedicated to that idol, whether the arrangement pleaded in the plaint could be recognised in law. The question is, whether a property which was already dedicated to the idol, can be converted into a secular property. 19. In B.K. Mukherjea on ‘The Hindu Law of Religious and Charitable Trust’ — Tagore Law Lectures Fifth Edition (1983) by A.C. Sen, while dealing with Private Temples, the learned Author has, at page 196 of that book, considered a similar question. He has considered all the decisions of the point and has held that if the endowment has to be put an end to, all the members of the family, both male and female, have to agree for the same. Otherwise, it cannot take effect. Of course, the learned Author has also taken note of a Division Bench Judgment of the Calcutta High Court in AIR 1956 Cal. 308 (Sukumar Bose v. Abani Kumar) that even consensus cannot put amend to an endowment. Otherwise, it cannot take effect. Of course, the learned Author has also taken note of a Division Bench Judgment of the Calcutta High Court in AIR 1956 Cal. 308 (Sukumar Bose v. Abani Kumar) that even consensus cannot put amend to an endowment. At page 198, the learned Author has said thus:— “In Narayan v. Narasing Charan, there is an observation that the members of the family could by their consensus withdraw the endowment from the trust. But in Sukumar Bose v. Abani Kumar it was held by the Calcutta High Court on a review of the authorities that it was not open to the members of the family even when there is a consensus of all of them to put an end to an endowment in favour of a family idol, and that the observations of Sir Montague Smith in Doorganath Roy v. Ram Chunder to the contrary were not good law. It is submitted that the law has been correctly laid down in this decision. Even if it be held that a consensus of the family can convert Debutter into secular estate, it must be noted that Shebaits qua Shebaits by their dealings with the property cannot give it a different turn. The Shebaits occupy the position of managers merely, and the acts of the manager which amount to breaches of trust cannot put an end to the trust. The consent must be expressed by all the beneficiaries which in the case of a family idol includes all the members of the family, both male and female, who are interested in the worship of the deity. If consent of the entire family is not proved, certain dealings with the property by some members of the family who happen to be Shebaits, as secular property, would not effect any conversion. Of course, if the transactions are such that the entire family took part in them they may be treated as evidence of consent. If the original Debutter character of the property is established, the fact that the property had been partitioned between the members of the family for the better enjoyment thereof, and that there had been sales and mortgages would not show that there was a consensus to give the property a secular turn”. 20. Similar is the view taken by E.J. Trevelyan in ‘Hindu Law’ (1913 Edition). 20. Similar is the view taken by E.J. Trevelyan in ‘Hindu Law’ (1913 Edition). At page 542 of his Book, the learned Author has said thus: — “An endowment in favour of a family idol is not so permanent as a public endowment. Provided that the concurrence of all the members of the family can be obtained, the idol and its property can be transferred to another family for the purpose of carrying on the worship, and there is authority that with the consent of the whole family the dedicated property can be converted into secular property and appropriated by the members of the family”. 21. In N.R. Raghavachariars ‘Hindu Law - Principles and Presidents - 7th Edition (1980), at page 648, the learned author has taken note of a decision of this Court in Appu Pattar v. Bhagabati reported in 21 MLI 588 wherein also, the view of this Court is similar to the one expressed by the learned Author. That is, it can be put an end to, only if all the members of the family, both male and female, including minors give consent. The relevant portion at page 648 of the said book reads thus: “Even in the case of property dedicated to a family idol, the Shebait alone by his dealings cannot give the property dedicated a different turn. It is only the consent of the members of the family interested that can convert the debutter property into secular property, and such consent or consensus must be of all the members of the family, both male and female, who are interested in the worship of the deity. In Surendrakrishnan v. Bhubaneshwari, it was held that the position that a dedication can be set aside at ??? particular time by the consent of all parties then interested in the endowment has no warrant in Hindu Law that such a thing can never be done by means in this again between the adult male members, the female and minor members not joining in it. particular time by the consent of all parties then interested in the endowment has no warrant in Hindu Law that such a thing can never be done by means in this again between the adult male members, the female and minor members not joining in it. But in view the fact that in the case of private endowment the public are not interested in its continuance, it appears to be sufficient if the adult male members of the family who may for all practical purposes be taken to represent the whole family including the female members and those who are still minors, consent to convert the property dedicated to the family idol into secular property. The decision of the Madras High Court in Appu Pattar v. Bhagbati and that of the Calcutta High Court in Gobinda Kumar v. Debendra countenance this view.” (Emphasis supplied). 22. In view of the settled position of law, I do not think the arrangement pleaded in the plaint can be accepted. The arrangement that is pleaded or spoken to by P.W.1 is arrangement between Vadivel Mudaliar and plaintiffs father, and not by all the members of the family. The beneficiaries are not these two members alone. All the members of the entire family have to agree to put an end to the endowment. The Courts below have accepted that arrangement as valid arrangement on the ground that Vadivel Mudaliar has alienated certain properties to strangers, as if those properties absolutely belonged to them, though originally dedicated to Vinayagar Temple. What Vadivel Mudaliar has done is one not permitted under law. That illegality is now taken advantage of by the above arrangement. It is also another illegality. Merely because the alienation of the trust property has been effected by one member, that cannot be justified by doing another illegal act. Ownership still continues with the idol. Ex.A-3 has no legal validity and the person has no right to execute such a document. The person in management of the trust property is like guardian of a minor. The alienation can be justified only if it is for absolute necessity and consideration and for the manifest advantage of the idol or minor. Plaintiffs have no pleading or proof, justifying the alienation in his favour. The suit as filed is, one to recover the property as if it belonged to the plaintiffs. The alienation can be justified only if it is for absolute necessity and consideration and for the manifest advantage of the idol or minor. Plaintiffs have no pleading or proof, justifying the alienation in his favour. The suit as filed is, one to recover the property as if it belonged to the plaintiffs. Plaintiffs do not recognise the title of the idol. These plaintiffs have no right to recover the property as if it were a secular property. The idol is a necessary party and it is only on its behalf it could be recovered. If the defendants are termed as a trespasser, plaintiffs are also not in a better position. When they deny the title of the idol, they must show that they have got better title than the defendants. If the plaintiffs are allowed to be in possession, they will also become trespassers so far as the idol is concerned. Courts below did not consider any legal implications of Ex.A.-3 mainly for the reason that Ex.A-8 created only a charge over the income and not complete dedication. 23. The reasons of the Courts below are, therefore, not valid in law. The question of law is, therefore, found in favour of the appellants. The Idol is a necessary party to the suit, and no suit can be filed by the plaintiffs as if the property belonged to them absolutely. Even if an endowment can be put an end to, that can only be with the approval of all the members of the beneficiaries. Till then, the idol alone will be the owner, and only on its behalf, the property could be recovered from a stranger. 24. In the result, I set aside the judgments of the Courts below. Even though the judgments are concurrent. I find that grounds have been made out for interference. The Courts below have not taken into consideration the legal implications under Ex.A-8 and also the effect of dedication in favour of the idol. 25. In the result, the Second Appeal is allowed. The suit, O.S. 1801 of 1981, on the file of District Munsifs Court, Ponneri, will stand dismissed. There will be no order as to costs in this Second Appeal. O,.M.P. No. 15845 of 1995 for stay is also dismissed consequently.