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2000 DIGILAW 359 (KER)

Payyannur Co-op. Educational Society v. Narayanan

2000-07-17

G.SIVARAJAN, S.SANKARASUBBAN

body2000
Judgment :- S. Sankarasubban, J. The above appeal is filed against the judgment and decree in O.S. No. 9 of 1987 of the Sub Court, Payyannur. (Suit was filed originally in the Sub Court, Tellicherry as O.S.No. 242 of 1982 and thereafter, transferred to the Sub Court, Payyannur). First defendant is the appellant. Suit was filed for declaration that the sale deed dated 7.7.1982 in respect of the plaint schedule property executed by the second defendant in favour of the first defendant is not valid and binding on the Thiruvarkat Kavu Devaswom and to restore possession of the property of the temple to be managed by the third defendant and for other reliefs. 2. Plaint schedule property is an extent of 10 Hectares of land in R.S. No. 30/2A of Madai Amsom, Madai Desom. Originally, there was only one plaintiff. But subsequently, the fourth defendant got himself transposed as additional second plaintiff. The plaint schedule property belongs to Thiruvarkat Kavu Devaswom, popularly known as Madai Kavu Devaswom. The sole hereditary trustee of the Devaswom is Chirakkal Kovilakam, represented by is seniormost male member. According to the plaintiff, Thiruvarkat Kavu is one of the foremost important Devi Shrines in North Kerala having a hoary tradition. It is financially very sound. The most important festival in the Temple is the Pooram festival occurring in March-April every year and several people gather in the temple during the festival season. During the festival season, the deity is taken in procession to various places. One of the areas through which the .procession passes is the plaint schedule property. The Temple is a public Temple subject to the superintendence of the Hindu Religious and Charitable Endowments Department. 3. According to the plaintiff, he came to know that the plaint schedule property was being sold by the second defendant to the first defendant from a news item which appeared in the Desabhimani dated 3.7.1982. Thereafter in the Mathrubhoomi Daily dated 19.7.1982. It was stated that a sale deed had already been executed. The sale deed that was executed by the second defendant in favour of the first defendant is the sale deed dated 7.7.1982, copy of which is produced as Ext. Al in the case. According to the original plaintiff, he is residing near about the Temple and he is a regular worshipper there. The sale deed that was executed by the second defendant in favour of the first defendant is the sale deed dated 7.7.1982, copy of which is produced as Ext. Al in the case. According to the original plaintiff, he is residing near about the Temple and he is a regular worshipper there. He is very much interested in the welfare and well being of the Temple. But he came to know about the registration, he obtained registration copy of the same and found that the transaction was highly prejudicial to the interest of the institution. There was no necessity for such a transaction and no benefit had accrued to the institution. On the other hand, considerable prejudice has been caused to the Temple on account of the loss of an area through which festival procession moves. The sale deed was executed for a consideration of Rs. 20,000/-. The extent of the land involved is 25 acres. In paragraph 7 of the plaint, plaintiff attacked the order passed by the fourth respondent in respect of the execution of the sale deed. According to the allegations, as a matter of fact, the proposal came from the Commissioner, H.R. and C.E. and not from the Devaswom. Everything was done in a hurry. The procedure prescribed under S.29 of the Madras Hindu Religious and Charitable Endowments Act was not followed. Publication before granting sanction was dispensed with when there was no circumstance existing for that. There was no necessity for the Devaswom to sell the property. The Commissioner fixed the value at Rs. 100/- per acre, ie., the total valuation of Rs. 2,500/-. Even the order granting sanction was not published as contemplated in S.29 of the H.R. and C.E. Act. It is further stated that the trustee acted against the interest of the trust in assigning the property for an amount, which has absolutely no bearing and that there was no benefit to the Devaswom. 4. Originally, only defendants 1 to 3 were impleaded. Subsequently, the Executive Officer of the Devaswom, Commissioner of Hindu Religious and Charitable-Endowments (Administration) and Chief Secretary were impleaded. Seventh defendant is P. Koran Nair. He had filed O.R No. 8163 of 1982. Copy of the judgment in the Original Petition is produced as Ext. B21. O.P.No. 8163 of 1982 was disposed of giving liberty to the seventh defendant to raise all contentions in the suit. Seventh defendant is P. Koran Nair. He had filed O.R No. 8163 of 1982. Copy of the judgment in the Original Petition is produced as Ext. B21. O.P.No. 8163 of 1982 was disposed of giving liberty to the seventh defendant to raise all contentions in the suit. In the suit, he got himself impleaded as additional 7th defendant. 5. Written statements were filed by defendants 1, 2, 3, 5 and 7. In the written statement of the first defendant it has been stated that the property was purchased for the purpose of establishing a College. It is further stated that the value fixed in the sale deed is correct. The land is a rocky area and it was not giving any income to the Devaswom. Hence, the transaction was beneficial to the Devaswom. The trustee never acted against the interest of the trust. The Commissioner approved the sale after inspection. It also refers to the fact that the Viswa Hindu Parishad had filed objections before the Commissioner, but those objections were rejected. Second defendant, viz., the trustee filed written statement. The second defendant denied any collusion between it and the first defendant. The sale of the property was sanctioned by Commissioner. According to him, the actual truth will be revealed, if the Commissioner is impleaded in the suit. Third defendant-Executive Officer also filed a written statement. He had stated that the temple is one of the most important temples-in Malabar. He further stated that the plaint schedule property is a vast stretch about 300 acres of land around the main Temple. The Temple is a very ancient one and even the income from the worshippers is increasing every year. During the annual pooram festival in March-April every year, thousands of pilgrims visit the shrine and donations and Vazhipadus given in large numbers. According to him, he received a letter dated 15.5.1982 from the Commissioner, H.R.& C.E. Department with a copy of the petition submitted by the first defendant requesting that an extent of 20 acres of land in R.S. Nos. 38/1 and 9/1 of Madai amsom and desom be released in favour of the first defendant for the purpose of starting a College. But the Executive Officer has nothing to do with the proposal. He has not stated as to what happened subsequently. According to him, the price fixed is very low. 38/1 and 9/1 of Madai amsom and desom be released in favour of the first defendant for the purpose of starting a College. But the Executive Officer has nothing to do with the proposal. He has not stated as to what happened subsequently. According to him, the price fixed is very low. The Devaswom required no funds, since there was an appreciable cash balance to the credit of the Temple. 6. Fifth defendant is the Commissioner. According to him, he received a petition from the first defendant with regard to the plaint schedule property. Thereafter, he forwarded the same to the third defendant-Executive Officer. Subsequently, he received a communication dated 5.6.1982 from the trustee saying that the land asked for by first defendant is a waste rocky land, non-cultivable and surplus land and the transfer of the same will only be beneficial to the Devaswom. It is only after receiving the above communication from the trustee that the fifth defendant started necessary proceedings for the sale of the property. The Commissioner did not initiate any procedure. It is only after complying with the procedure contemplated under the H.R.& C.E. Act that the sanction was accorded to assign the property. The market value was ascertained through the Revenue Authorities. Permission was also given with a direction that the property should not be used for any other purpose than starting a College. In paragraph 5, it is stated that since the matter was very urgent and public auction cannot be resorted to, the fifth defendant recommended the Government to dispense with the publication, calling for objections and suggestions, etc. as contemplated under S.29 of the H.R.& C.E. Act. Since the trustee wants to sell the property to particular society for a particular purpose, calling for objections, was not relevant. The first defendant had not exercised any unauthorised jurisdiction for the sale of the property. The land is rocky and uncultivable. The plaintiff has not challenged the order passed by the Commissioner. Hence, the suit is not maintainable. Since H.R.& C.E. Act provides remedy to the aggrieved party in a particular manner, a suit filed without exhausting the remedy is not maintainable. 7. Seventh defendant also filed a written statement. He attacked the order passed by the Commissioner. Under S.29 of the H.R.& C.E. Act, the property can be sold only if there is necessity for the Devaswom. Since H.R.& C.E. Act provides remedy to the aggrieved party in a particular manner, a suit filed without exhausting the remedy is not maintainable. 7. Seventh defendant also filed a written statement. He attacked the order passed by the Commissioner. Under S.29 of the H.R.& C.E. Act, the property can be sold only if there is necessity for the Devaswom. Here, there is no necessity for the Devaswom. It was only to help the first defendant that the property was sold. There was no urgency to dispense with the procedure under S.29 of the H.R.& C.E. Act regarding calling for objections, etc. On 7.7.1982, when the sale was effected the first defendant-society did not have the object to start a college. The action of the first defendant was not to knock away a very sizable and valuable land of the Devaswom for a paltry sum. The price fixed is very low. There has been no gross negligence of duty on the part of the Hindu Religious and Charitable Endowment Department. The Commissioner, H.R.& C.E. and the trustee have acted on the dictates of political influence. The order was not published in the gazette. The order was signed by the Commissioner on 6.7.1982 and the deed was executed on 7.7.1982. The President of the first defendant is a very prominent office bearer of the Indian National Congress (I) and as such he was exercising considerable influence in the then Government. The order sanctioning the sale was obtained by the influence of the President of the first defendant-Society. 8. On the basis of the above pleadings, the Court below raised five issues. On behalf of the plaintiffs, Ext. Al to A16 were marked. On behalf of the defendants, Exts. B1 to B21 were marked and Exts. XI to X16 are third party Exhibits. Second plaintiff was examined as PW1 and the first plaintiff was examined as PW2. First defendant was examined as DWI and DW2 is the Chirakkal Kovilakam Devaswom Executive Officer and DW 3 is the Assistant Educational Officer. 9. The Court below after considering the various issues and evidence adduced, found that the suit was maintainable. It found that the sale of the property was not beneficial to the Devaswom and the price fixed was very low. It further found that the procedure under S.29 of the H.R.& C.E. Act has not been followed in granting sanction. 9. The Court below after considering the various issues and evidence adduced, found that the suit was maintainable. It found that the sale of the property was not beneficial to the Devaswom and the price fixed was very low. It further found that the procedure under S.29 of the H.R.& C.E. Act has not been followed in granting sanction. The order granting sanction has not been published. The procedure of invoking urgency clause is without any basis. On the basis of the above evidence, the Court below set aside the sale deed and-gave a decree declaring that Ext. Al sale is invalid and not binding on the Devaswom. First defendant was directed to surrender possession of schedule item to the Executive Officer, within two years from the date of decree. At the time of surrender of possession, purchase money of Rs. 20.000/-shall be returned to the first defendant-society. The first defendant is at liberty to demolish or remove the structures at their costs. Defendants were not entitled to value of improvements. It is against the above judgment and decree that the appeal is filed. 10. Shri. Venketasubramonia Iyer appeared for the appellant while Shri. A.P. Chandrasekharan appeared for the plaintiffs in the suit. Government Pleader appeared on behalf of the Commissioner and Governmental Authorities. 11. Learned counsel for the appellant submitted that the suit as framed will not lie. Under the Hindu Religious and Charitable Endowments Act, the plaintiffs could have challenged the order passed by the Commissioner before the Government. Under S.93 of the H.R.& C.E. Act, no suit will lie in respect of matters covered by the Act. He further contended that the land that was sold is a rocky area which did not fetch any income to the Devaswom. The entire consideration of Rs. 20,000/- has been invested in a fixed deposit and that fixed deposit is giving a good income to the Devaswom. There is no right for the plaintiff to file the suit without attacking the order passed by the Commissioner. After the purchase of the property, the first defendant has constructed a College and the College is going on in full swing. The decree passed against the first defendant will cause great hardships to the students. Learned counsel further contended that the appellant is entitled to the benefit of S.51 of the Transfer of Property Act. 12. After the purchase of the property, the first defendant has constructed a College and the College is going on in full swing. The decree passed against the first defendant will cause great hardships to the students. Learned counsel further contended that the appellant is entitled to the benefit of S.51 of the Transfer of Property Act. 12. Shri. A.P. Chandrasekharan, learned counsel appearing for the plaintiffs/ respondents contended that it is a case where permission has been granted without following the procedure and it is to help the first defendant that the entire action has been initiated by the Commissioner. The parties never fixed the price for the property. There was no necessity for the Devaswom. It is not correct to say that the land was not of any use to the Devaswom. The suit is perfectly maintainable. The right to challenge the sale deed is a right not conferred by any statute. It is a right which is not created by any statute. S.29 of the H.R.& C.E. Act is only to safeguard the Devaswom properties from being arbitrarily sold. It is one of the principles of Hindu Religious and Charitable Endowments Act that the property belonging to the Devasworrt should not be sold unless there is necessity and for valid consideration. The remedy available under the H.R.& C.E. Act could not have been invoked by the appellant, as the order of sanction has not been published. The first defendant had undertaken before this Court that it would not claim any benefit regarding the construction it had made in the property, if ultimately the suit was to be dismissed. 13. There is no dispute that the plaint schedule property belongs to Thiruvarkattukavu Devaswom, popularly known as Madai Kavu Devaswom. This property is dedicated to the deity of the Thiruvarkattu Devi Kavu. The property is dedicated absolutely for religious purpose. The possession and management of the property belongs to the manager of the Temple called Shebait and it has been held that Shebait is not mere pujari or archak of the Temple. Temples have been established for the spiritual benefit of the Hindu community in general or for that of particular sects or sections thereof. The possession and management of the property belongs to the manager of the Temple called Shebait and it has been held that Shebait is not mere pujari or archak of the Temple. Temples have been established for the spiritual benefit of the Hindu community in general or for that of particular sects or sections thereof. It has been held that it is only in an ideal sense that property can be said to belong to an idol and the possession and management of it must be in the nature of things be entrusted to some person as shebait, or manager. 14. The question in this appeal is whether there has been a valid sale. In this context, it is relevant to note that the Madras Hindu Religious and Charitable Endowment Act, 1951 applies to temple in question. The Madras Act continues to apply with certain amendments made by the Kerala Legislature. The Madras Act has been enacted for the purpose of administration and governance of Hindu Religious and Charitable Endowments. Chapter III deals with religious institutions. S.29 of Chapter III deals with alienation of immovable property. S.29 of the Act states that any exchange, sale or mortgage and any immovable property belonging to, or given or endowed for the purpose of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. S.29 further prescribes certain procedure for complying with. Thus, as per the Act, the right to sell is further restrained unless consent is obtained from the Commissioner under S.29 of the above Act. 15. In this case, the second defendant, as hereditary trustee, sold the property to the first defendant. It was in such circumstances that the plaintiff filed the suit impleading the trustee also. So far as the right to the question of alienation of the property is concerned, the Supreme Court in the decision reported in Bishwanath & Ann v. Sri. Thakur Radha Ballabhi & Ors., AIR 1967 SC 1044, quoted the decision of the Privy Council in Jagadindra Nath v. Hemanta Kumari Debt (1904) 31 Ind. App. 203, which held as follows: "There is no doubt that an idol may be regarded as a judicial person capable as such of holding property, though it is only in an ideal sense that property is so held". App. 203, which held as follows: "There is no doubt that an idol may be regarded as a judicial person capable as such of holding property, though it is only in an ideal sense that property is so held". Dealing with the decision of the Shebait of such an idol, the Privy Council proceeded to state: "....it still remains that the possession and management of the dedicated property belong to the Shebait. And this carries with it the right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the Shebait, not in the idol". The question is can a person represent the idol, if Shebait acts adversely to its interest. In paragraph 10 of the above decision, the Supreme Court held as follows: "we do not see any justification for denying such a right to the worshipper. An 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 worshippers may file a suit praying for possession of a property on behalf of an endowment". According to us, in this case, it is proved that the plaintiffs are worshippers. In the light of the above, we are of the view that the plaintiffs have got right to challenge the sale deed and the suit as framed, is maintainable. 16. Next question for consideration is whether the suit is maintainable in view of the provisions of the Madras Act. As already stated, S.29 of the Act deals with alienation of immovable property. According to us, any alienation of property belonging to the religious institution will be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the estate. Section states that before the sanction is created, particulars regarding the transaction shall be published as may be prescribed. The Commissioner shall enquire into the objections and suggestions received from the trustee or other persons having interest. Under the second proviso to S.29 of the Act, the Commissioner is given power not to comply with these particulars in accordance with the emergency. The Commissioner shall enquire into the objections and suggestions received from the trustee or other persons having interest. Under the second proviso to S.29 of the Act, the Commissioner is given power not to comply with these particulars in accordance with the emergency. Under S.29(3) of the Act, the order of the Commissioner is to be communicated to the Government and to the trustee and it shall be published in the manner prescribed. Sub-s.(4) says that 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 to set it aside. S.93 of the Act says that no suit or other legal proceeding in respect of the administration of a religious institution or any other matter of dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of Law, except under and in conformity with, the provisions of this Act.' Rules have been framed under S.100 of the Act. With regard to S.29(1), (3) and (4) of the Act, we will come to that later. 17. On the basis of S.93 of the Act, it was submitted by the learned counsel for the appellant that the suit is not maintainable. According to the counsel, against the decision of the Commissioner, an appeal is provided and the plaintiffs have not filed appeal and hence, the suit is not maintainable. Learned counsel cited various decisions on this aspect. Learned counsel for the respondents submitted that the court below was justified in holding that the suit was maintainable. Under S.9 of the Code of Civil Procedure, all suits of a civil nature are maintainable in a civil court, unless it is barred expressly or impliedly. If the rights are created under the general law, the remedy lies in the civil court for the enforcement of the same. Certain rights are created by statutes. With regard to those rights, it has been held that a suit for enforcement of that right in a civil court is maintainable unless the statutes itself provides a remedy. If the statutes create rights and also provide the remedy, then the person will have to exhaust the remedy under the Act. Certain rights are created by statutes. With regard to those rights, it has been held that a suit for enforcement of that right in a civil court is maintainable unless the statutes itself provides a remedy. If the statutes create rights and also provide the remedy, then the person will have to exhaust the remedy under the Act. In such cases, whether the suit will lie or not will depend upon how far the statute was complied with. In Wolverhampton New Waterworks Co. v. Hawkesford, (1859) 6 CB NS 336, it was held thus: "There are three classes of cases in which a liberty may be established founded upon a statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law: there, unless the statute contains words existed which expressly or by necessary implication exclude the common-law remedy, and the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy. for enforcing it. The present case falls within this latter class, if any liability at all exists. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class". In Secretary of State v. Mask & Co., AIR 1940 PC 105, it was held as follows: "It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressly or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal, has not acted in conformity with the fundamental principle of judicial procedure". It is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal, has not acted in conformity with the fundamental principle of judicial procedure". It is also now clear from the decision of the Supreme Court that even if there is bar under the statute, the civil court can go into the controversy when the provisions of the statute have not been complied with by the authorities. Thus, it was held in Katikara Chintamani Dora v. Guntreddi Annamanaidu, (1974) 1 SCC 567, as follows: "It was pertinently added that this exclusion of the jurisdiction of the civil court would be subject to two limitations. First, "the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in confirmity with the fundamental principles of judicial procedure. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive". The question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute and its general scheme, taken in conjunction with the scope of the enquiry entrusted to the tribunal set up and other relevant factors". 18. So far as the present case is concerned, according to us, the right of worshipper to challenge the alienation of an endowed property is not created for the first time under the statute but the right is obtained under the general law. So far as the Endowment Act is concerned, it only creates a procedure for checking the indiscriminate transfer of endowed property. S.29 of the Act says that any alienation of immovable property without the consent of the Commissioner will be deemed to be null and void. It does not follow that-merely because consent has been granted by the Commissioner, the sale deed attains the stamp of validity. Even if the sanction is obtained, the sale deed can be challenged in Court and if the Court is satisfied that the sale is not for the benefit of the endowment, nor there necessity, then the Court can certainly interfere. Hence, according to us, it cannot be said that the civil court's jurisdiction is completely excluded. 19. Even if the sanction is obtained, the sale deed can be challenged in Court and if the Court is satisfied that the sale is not for the benefit of the endowment, nor there necessity, then the Court can certainly interfere. Hence, according to us, it cannot be said that the civil court's jurisdiction is completely excluded. 19. Next question is because the Act provides certain remedy to interested persons to challenge the order under the Act, can such person approach the court without exhausting that remedy. According to us, normally, if the remedy is provided under the Act, the aggrieved person is to resort to the remedies under the Act. But in the present case, we are of the view that the plaintiffs cannot be non-suited on that score. We are of the view that the provisions of the Act have not been complied with by the Commissioner under the Act, the Commissioner has to give sanction. In this case, he has held that because of the emergency, the first proviso to S.29 of the Act was not complied with (regarding the validity of the action, we are considering it later). Under S.29 of the Act, after the order is passed, copy of the order has to be communicated to the Government and to the trustee and it is to be published in the manner prescribed. Under R.2 of the Madras Hindu Religious and Charitable Endowments Rules, copy of the order sanctioning the sale has to be published in the manner laid down therein. Thus under R.2(i) of the above Rules, copies of the notice have to be published by affixure on the notice board of the office of the Commissioner and the Assistant Commissioner having jurisdiction over the area, and if there is no notice broad, on the front door of the temple, on the notice board of the municipal council or in the office of the Village, in which area the temple is situated. Admittedly in this case, publication of the notice has not been made. Under S.29 of the Act, a person other than a trustee can file appeal only if the order is published as such. Since there has been no publication, there has been no compliance with the Act. Hence, the plaintiffs cannot be found fault with for not filing the appeal to the Government and thus resorting to the remedy under the Endowment Act. Since there has been no publication, there has been no compliance with the Act. Hence, the plaintiffs cannot be found fault with for not filing the appeal to the Government and thus resorting to the remedy under the Endowment Act. Further, from the facts in the case, it can be seen that on 6.7.1982, the Commissioner granted sanction for the sale and on 8.7.1982, the sale deed was executed. Hence there was no time for the plaintiffs to approach the Government to challenge the order. Further, we are of the view that the sale deed should not have been executed immediately after the sanction order. The Act itself gives right to file an appeal before the Government within three months from the publication of the order. According to us, this is not an empty formality. The order of the Commissioner does not give any finality. According to us, even if the sanction is granted by the Commissioner, the sale deed can be executed only after the time for filing the appeal had expired. Hence, we are of the view that the suit is maintainable. 20. Next question is whether there is evidence adduced in this case that the sale deed executed is beneficial to the endowment. An extent of 25 acres of property has been sold for Rs. 20,000/- as per the sale deed. The Commissioner has given the value as Rs. 2,500/-. We scanned the evidence in this case. According to us, there is no evidence to show that it is beneficial to the endowment or there was any necessity. So far as the necessity is concerned, there is no evidence to show that the Temple requires funds. Regarding the benefit of the Temple also, there is no evidence. By the evidence, it appears that the benefit is only for the first defendant. According to the first defendant, if the College comes nearby, it will be beneficial to the surrounding people. We don't think, this is the criteria, which can be taken into consideration in determining whether the sale was beneficial to the Temple. Another argument put forward is that the land is a rocky area and there was no income from the property. Now, the entire amount of sale consideration of Rs. 20,000/- is deposited and the interest from this deposit is beneficial to the temple. Another argument put forward is that the land is a rocky area and there was no income from the property. Now, the entire amount of sale consideration of Rs. 20,000/- is deposited and the interest from this deposit is beneficial to the temple. The mere fact that the land is rocky does not mean that the property can be sold. There is no evidence to show that the maintenance of the property was a burden to the Temple. The fact that an additional advantage would be given to the Temple by the sale of the property does not mean that it was beneficial to the estate. Further case of the plaintiff is that the area which is sold is necessary for the purpose of conducting procession during the festival time and that any building or college will be a hindrance of the worshippers of the Temple. 21. Further, on an analysis of the evidence in this case, it is seen that it was the first defendant who put forward the proposal. The first defendant wanted 25 acres to be surrendered for the purpose of starting a College. The first defendant had approached the Commissioner. The Commissioner then communicated the matter to the Executive Officer. It is not a case where the first defendant approached the second defendant for the purpose of sale. Usually what we find is that before approaching the Commissioner for sanction, there will be consensus between the buyer and seller for sale of the property after fixing the price. Then the Authorities will have to be convinced about the need for such sale and also whether the consideration is proper or not. But here, such things have not happened at all. When the Commissioner intimated the Executive Officer about the request of the first defendant, the first defendant was directed to file an application. That application was forwarded by the second defendant to the Commissioner. Here, the second defendant only says that it is prepared to sell the property for the purpose of college. But nothing is stated as to whether the sale is necessary. 22. Ext. B2 is the order granting sanction by the Commissioner. A perusal of Ext. B2 will show that the principles which have to be borne in mind in exercising the function under S.29 of the Act have been given a go-bye by the Commissioner. But nothing is stated as to whether the sale is necessary. 22. Ext. B2 is the order granting sanction by the Commissioner. A perusal of Ext. B2 will show that the principles which have to be borne in mind in exercising the function under S.29 of the Act have been given a go-bye by the Commissioner. The order says that plot proposed to be sold is rocky and unfit for any kind of cultivation. The Temple is not getting any income from the property. The purpose for which the property is proposed to be sold is for the starting of a College. The purpose is very laudable. The Temple authorities will have the satisfaction that the property is sold to advance the educational needs of the people of the locality. It seems that the Viswa Hindu Parishad had objected to the transaction. The objection was rejected by saying that it is for the trustee to recommend the rejection of the proposal. It is further stated that if the Temple requires the property, the trustee would not have recommended the proposal. 23. The Commissioner is entrusted with the power to scrutinise the transactions by the trustees with regard to alienation or encumbrance of the endowed property. Thus a sacred duty is cast on the Commissioner and he should bear in mind that the property is belonging to the idol. Public are interested in the transactions. Merely because the trustee has not raised any objection it does not mean that green signal can be given by the Commissioner to grant sanction for the sale. Further, the Commissioner took the View because it is for starting a College, the purpose is laudable. In this view, the Commissioner has only found the necessity for the first defendant for purchasing the property. He has not considered the question whether there is any necessity for the Devaswom. The order shows that the price fixed is Rs. 2,500/-. Incorporation of certain conditions in the sale deed also shows that the arrangements are only tentative. Regarding the fixation of the price, the Commissioner has based the price on the basis of the report of the Tahsildar. According to us, this fixation is wrong. The vendor and the vendee should agree for the price. The Commissioner should the find out whether the price is reasonable or not. The proposal should contain the price of the property. Regarding the fixation of the price, the Commissioner has based the price on the basis of the report of the Tahsildar. According to us, this fixation is wrong. The vendor and the vendee should agree for the price. The Commissioner should the find out whether the price is reasonable or not. The proposal should contain the price of the property. Here, what is done is that the Commissioner himself fixes the price of the property. Fixation of price is within the domain of the purchaser and the seller. What the Commissioner is to see is whether the price is reasonable. Ext. P2 produced by the plaintiffs will show that even in R.S. No. 30/2A there were transactions. Ext. A6 is dated 26.8.1981. Ext. A4 is dated 2.4.1980. The documents produced will show that the valuation arrived at by the Tahsildar by fixing the nominal value on the ground that no transaction has taken place within a period of two years in the vicinity was not based on any facts but without any proper enquiry. 24. The evidence adduced here will show that the Temple is having surplus funds and the amount has been deviated under Chirakkal Kovilakam. Thus, we are of the view that the price fixed by the Commissioner was very low. No doubt, the parties had fixed the price at Rs. 20,000/-, which is also low when comparing the valuation shown in the document. This shows that there has been an attempt to knock away the property of the Devaswom by the first defendant. We are of the view that the first defendant, second defendant and the Commissioner had put their hands together. But the alienation of the property of the endowment was without any necessity and without any bonafide. Learned counsel for the appellants submitted that as a matter of fact, no income was obtained from the land sold and there the amount received as consideration is deposited in the Bank as fixed deposit, which is fetching income and therefore the transaction can be held to be beneficial to the trust. 25. Learned counsel for the appellants submitted that as a matter of fact, no income was obtained from the land sold and there the amount received as consideration is deposited in the Bank as fixed deposit, which is fetching income and therefore the transaction can be held to be beneficial to the trust. 25. B.K. Mukherjea on the Hindu Law of Religious and Charitable Trusts, Fifth Edition at page 281, states as follows: "It is well settled that the mere fact that the Debutter estate could make some profit out of a particular bargain or there is an immediate increase of its income would not be grounds sufficient to hold the transaction to be beneficial to the deity. Benefit to the estate does not include financial investments, not to speak of speculative financial developments the term may be held to apply to such a transaction as the sale of inconveniently situated, encumbered and unprofitable property and the purchase in its place of other property". In Behari Lai v. Thakur Radhaballabh Jiu - AIR 1961 All. 73, it was held that the sale of an old house belonging to an endowment which was not in a dilapidated condition but which required extensive repairs was neither a prudent transaction nor for the benefit of the estate and that it was not binding on the institution. The learned Author quoted at page 282, after referring to various decisions that it was not a benefit to the estate to merely change the investment with a view to obtaining a somewhat increased yield". In this case, no attempt has been made to prove that transaction was for the benefit of the estate. It has come in evidence that the Devaswom has large extent of properties. The mere fact that portion of the property is hilly and rocky area does not mean that the property has to be sold. Further, there is evidence to show that the Devaswom has got surplus funds. In any event, we are of the view that the price obtained is very low and hence, the sale cannot be held to be beneficial to the estate. 26. Learned counsel for the appellant then argued that his client is entitled to the benefit of S.51 of the Transfer of Property Act. In any event, we are of the view that the price obtained is very low and hence, the sale cannot be held to be beneficial to the estate. 26. Learned counsel for the appellant then argued that his client is entitled to the benefit of S.51 of the Transfer of Property Act. He contended that after the purchase of the property, the appellant had constructed buildings in the property thinking that the property belongs to it. We are not able to accept the argument. Challenge to the sale proceedings started within one month of the execution of the sale deed long before any construction was made. Further, in the suit as well as in the appeal, the first defendant has already undertaken that in case a decree is passed against him, it will not claim any right on the basis that the buildings have been constructed by it. On the basis of the above undertaking that the first defendant was allowed to construct the building. 27. In the result, the decree of the lower court is upheld. Appellant is given time till the end of this academic year, i.e., 31.3.2001 to surrender possession of the property to the Executive Officer of the Devaswom. At the time of surrender, purchase money of Rs. 20,000/- shall be returned to the first defendant-society. appellant-society is entitled to demolish or remove the structures at its costs. Appeal is dismissed. No order as to costs.