Judgment : 1. The petitioners are third parties to T.O.P.No.2 of 2008 on the file of Principal District Judge, Virudhunagar District at Srivilliputhur. The respondents 1 and 2 filed the above O.P. for sale of 95.95 cents of third item in Schedule to the petition for a total consideration of Rs.19,96,000/-. The respondents 3 to 7 are the respondents 1 to 5 in the said T.O.P. According to the respondents 1 and 2, the Trust was created for carrying out certain religious function and the same are performed from the income of the properties belonging to the trust. According to the respondents 1 and 2, the Trust is a private Trust. 2. Due to the passage of time, the Temple and Samadhi in the Trust properties have become dilapidated. The Temple and Samadhi were constructed more than 75 years before. Therefore, it becomes necessary to demolish and re-construct the same. Further, in the second item mentioned in the petition, the respondents 1 and 2 have decided to construct a commercial complex so as to get income for the Trust which will enable the Trustees to carry out the wishes of founder of Trust. They obtained a quotation from Sathya Builders and Engineer of the said Builders had stated that it will require a sum of Rs19,89,570/- to demolish and re-construct Temple and Samadhi and construct a shopping complex and he has submitted a plan also to the Trust. The said matter was placed before the committee on 19.2.2008 and it was decided to sell third item of property in the petition for not less than Rs. 19,96,000/- and renovate the Temple. 3. Under these circumstances, the respondents 1 and 2 filed the T.O.P. under Section 34 of the Indian Trust Act, 1882. The respondents 3 to 7 remained ex-parte. The learned Judge considered the T.O.P. and recorded the evidence and came to a conclusion that the request of the respondents 1 and 2 is bonafide and that the respondents 3 to 7 have not objected the sale of the properties. Therefore, he allowed the T.O.P. and directed the respondents 1 and 2 to sell the third item of the properties for maximum price not less than Rs.19,96,000/- and file a copy of the sale deed into the Court and also to file statement of expenses incurred once in six months into the said Court. 4. Therefore, he allowed the T.O.P. and directed the respondents 1 and 2 to sell the third item of the properties for maximum price not less than Rs.19,96,000/- and file a copy of the sale deed into the Court and also to file statement of expenses incurred once in six months into the said Court. 4. The petitioners, who claim to be interested in the Trust have filed the above C.R.P. challenging the order of the learned Judge dated 22.12.2008, permitting the respondents 1 and 2 to sell the Trust properties. 5. According to the petitioners, Murugabhoopathy, who has filed the Trust O.P. as the President of the Temple and Samadhi is not the Trustee at all. Further, the Trust is not a private Trust and it is only a public Trust. The petitioners have stated that the original founder not only made arrangements for family members being Trustee and also made provision for persons belonging to their community to be inducted as Trustees. Therefore, not only the family members of Founder would be Trustees, but also non-family members belonging to the community are also eligible to become Trustees. 6. The learned counsel for the petitioners argued that not only the family members worship in the Temple and Samadhi, but also community people as well as general public also worship in the Temple and Samadhi. The petitioners have also stated that after the demise of Pune Ganapathy Yogeshwar Swamy, Founder of Trust, the Temple, Samadhi and Nandavanam were continued to be maintained and administered by the people of five Villages mainly Saliyars. The first petitioner's father Thiru.Ramasamy was a Village Paramukh. He was elected president of five Village Saliyar community and only in such capacity, he was issued with patta. 7. After the demise of the said Ramasamy Moopanar, no independent Managing Trustees were appointed. Taking advantage of such situation, the respondents 1 and 2 are attempting to knock off the Trust properties. They have also dismantled the superstructure in the Temple and Nandavanam and even dismantled the deities and idols. They are trying to sell the properties for personal gains. Therefore, they prayed for setting aside the impugned order, permitting the respondents 1 and 2 to sell the properties. 8. They have also dismantled the superstructure in the Temple and Nandavanam and even dismantled the deities and idols. They are trying to sell the properties for personal gains. Therefore, they prayed for setting aside the impugned order, permitting the respondents 1 and 2 to sell the properties. 8. The learned counsel for the petitioners also argued that the property in question is not a private property belonging to Murugabhoopathy, claiming to be a Trustee of the first respondent and his son/second respondent. The family of Murugabhoopathy sold their properties long back. The property in question belongs to the Trust and there is specific bar for the sale of the said properties. Therefore, the petition under Section 34 of Indian Trust Act 1882, is not maintainable. 9. Per contra, the learned counsel for the respondents 1 and 2 argued that as the Temple and Samadhi were constructed more than 75 years ago and they require renovation. Murugabhoopathy, who is representing the Temple and Samadhi/first respondent herein is entitled to manage the properties of Trust as per the provisions of Trust Deed as a Trustee. 10. According to the respondents 1 and 2, it is the petitioners, who have destroyed the Temple, Samadhis and Nandavanam. They are preventing the persons in lawful management of Trust from discharging their duties. On earlier occasion, civil suit has been initiated. Murugabhoopathy also has given a complaint against the petitioners and others to the Circle Inspector, South Police, Rajapalayam and F.I.R was registered and taken up for investigation. In order to perform Pooja, Annadanam and other activities in the Temple as desired by the Founder of Trust, the respondents 1 and 2 have filed T.O.P.No.2 of 2008, for permission to sell the third item of the properties mentioned in the petition. 11. The learned counsel for the respondents 1 and 2 argued that the properties in question do not belong to public Trust and the Trust in question is only a private Trust and therefore, the respondents 1 and 2 filed petition under Section 34 of the Trust Act, 1882, is maintainable. 12. The learned counsel for the respondents 1 and 2 argued that the learned Judge has considered all the materials and well settled law on this aspect and then only ordered sale of the properties. There is no irregularity in the order of the learned Judge warranting interference by this Court. 13. 12. The learned counsel for the respondents 1 and 2 argued that the learned Judge has considered all the materials and well settled law on this aspect and then only ordered sale of the properties. There is no irregularity in the order of the learned Judge warranting interference by this Court. 13. The learned counsel for the petitioners relied on the following judgments: 1. 2010 (5) CTC 438 (K.Srinivasan vs. G.Kuppusamy Naidu Memorial Sport Trust, Kovilpattu through its present Trustee-cum-Secretary K.SElvaraj and others; 2. 1986 (3) SCC 391 (Chenchu Rami Reddy and another vs. Government of Andhra Pradesh and Others) 3. AIR 2000 SC 1802 (Trustees of HEH the Nizam's Pilgrimage Money Trust, Hyderabad vs. Commissioner of Income Tax, A.P., Hyderabad.) 4. AIR 1990 SC 444 (R.Venugopala Naidu and Others Vs. Venkatarayulu Naidu Charities and Others) 5. 2008 (4) CTC 355 (Swami Shankaranad (D) by LRs. Vs. Mahant Sri Sadguru Sarnanand, etc. and others) 14. The learned counsel for respondents 1 and 2 relied on the following judgments: 1. 2003 (2) LW 566 (R.Raghupathy and others vs. Nil) 2. AIR (32) 1945 Sind 1981 (In re Muhammad Hashim Gazdar and others) 3. 1980 (93) LW 12 (Division Bench) (A.Palaniandi Pillai vs. Commissioner, Hindu Religious and Charitable Endowments, Madras) 4. AIR 1982 Delhi 453 (Smt. Shanthi Devi vs. State and others) 5. AIR (1982) Calcutta 14 (Smt. Nilima Ghosh and another vs. Prakriti Bhusan Mittar) 6. 2000 (4) SCC 179 (Trusties of HEH the Nizam's Pilgrimage Money Trust, Hyderabad vs. Commissioner of Income Tax, A.P., Hyderabad.) 7. AIR 1981 AP 340 (1) (Sahebzadi Amina Marzia Vs. Syed Mohd. Hussain and Others). 15. The learned counsel for the petitioners and the respondents 1 and 2, both relied on the Judgment of Division Bench of this Court in Maan Sarovar Paras Builders Pvt. Ltd. Vs. Gopaldas Dwarakadas Family Trust Estate reported in 2012 (5) CTC 817 . 16. I am not extracting the portions of the judgment relied on by the learned counsel for the petitioners and the respondents 1 and 2, as I am deciding the issue in the C.R.P. based on the ratio laid down in the decision reported in 2003 (2) LW 566 (R.Raghupathy and others vs. Nil) 17. 16. I am not extracting the portions of the judgment relied on by the learned counsel for the petitioners and the respondents 1 and 2, as I am deciding the issue in the C.R.P. based on the ratio laid down in the decision reported in 2003 (2) LW 566 (R.Raghupathy and others vs. Nil) 17. I have carefully considered the materials on record, impugned order of the learned Judge and the arguments of the learned counsel for the petitioner as well as the respondents 1 and 2. I have specifically considered Trust deed. As per the Trust deed, the person, who is Haqutar has to maintain all the properties of the Trust. In the Trust deed, dated 22.04.1942, there is specific bar for sale of the properties mentioned in the Trust deed. There is also specific bar for sale of the properties which may be purchased for Temples and Samadhis in future. The Haqutar can utilise the properties only for the activities mentioned in the Trust deed. Whether the Trust property can be sold when there is specific bar in the Trust deed has been considered by this Court in the decision reported in 2003 (2) LW 566 (R.Raghupathy and others vs. Nil). Paragraph 17 of the order reads as follows: "17. ...The first ground is that the Trust deed contemplated a bar on the alienation of the property. This issue has already been discussed above and in terms of the rulings cited above, under Section 34, the Court can order sale of the property even though there is a bar on the alienation in terms of the Trust Deed, under very exceptional circumstances and rare cases, where the Court is satisfied that it was absolutely necessary for the very implementation and continuation of the objects of the Trust and that the conditions of the property were so bad and that the continued preservation of the property/Trust could be only by way of sale of the property..? 18. From this judgment, it is seen that the courts can order sale under Section 34 of the Indian Trust Act, 1882, even when there is a bar on the alienation in the terms of the Trust deed, under very exceptional circumstances and rare cases. 18. From this judgment, it is seen that the courts can order sale under Section 34 of the Indian Trust Act, 1882, even when there is a bar on the alienation in the terms of the Trust deed, under very exceptional circumstances and rare cases. But the court must be satisfied that it is absolutely necessary for very implementation and continuation of the objects of Trust and that the conditions of property is so bad and that for continued preservation of the property. The Trust has to sell some of the properties. Even though the learned Judge has referred to this judgment, he has not given any finding about the condition of the Temple and Samadhi. He has also not given any finding as to whether the sale of the property is absolutely necessary for performing the object mentioned in the Trust and for preserving the Temple and Samadhi. 19. The learned Judge failed to discharge his power properly especially when the respondents 3 to 7 remained ex-parte and did not put forth their contentions. It is pertinent to note that the learned Judge has permitted the sale of the Trust properties by the respondents 1 and 2 by private negotiations. This is contrary to well settled judicial pronouncements. Unless the properties belonging to the Trust, Government or local body are sold by public auction, there will not be any transparency in the transaction. 20. For the reasons stated above, I hold that there is material irregularity and infirmity in the order of the learned Judge. Therefore, the impugned order of the learned judge is liable to be set aside. 21. In the result, this Civil Revision Petition is allowed. The impugned order is set aside. T.O.P.No.2 of 2008 is remanded to the learned Principal District Judge, Virudhunagar District at Srivilliputhur. It is made clear that it is open to the petitioners to get themselves impleaded in T.O.P.No.2 of 2008 and put forth all the objections available to them as per law including objections that the said T.O.P. is not maintainable under Section 34 of Indian Trust Act, 1882. The learned Judge is directed to decide the T.O.P. as to whether there is absolute necessity for sale of properties mentioned in item No.3 of the petition, to perform the objects of the Trust and for renovation of Temple and Samadhi. The learned Judge is directed to decide the T.O.P. as to whether there is absolute necessity for sale of properties mentioned in item No.3 of the petition, to perform the objects of the Trust and for renovation of Temple and Samadhi. If the learned Judge comes to the conclusion that item No.3 mentioned in the petition schedule must be sold, he must order such a sale only by public auction and highest bid must be placed before him, for confirmation of sale. No costs. Consequently, connected miscellaneous petitions are closed.