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1999(1) Supreme 406
Supreme Court of India
(From Madras High Court)
M. Jagannadha Rao & M.B. Shah, JJ.
The Executive Officer, Arthanareswarar Temple -Appellant
versus
R. Sathyamoorthy & Ors. -Respondents
Civil Appeal No. 2461 of 1991
Decided on 9-2-1999
Counsel for the Parties :
For the Appellant : R. Sundaravardhan, Sr. Advocate, R.N. Keshwant, Chanderakanta Nagak Riswan, Advocates.
For the Respondent : S. Siva Subramaniam, Sr. Advocate, R. Ayyam Perumal, Advocate.
For the Respondent Nos. 1 and 2 : V. Balanchandran and A. Marairputham. Advocates.
Held : It is true that in a large number of cases decided by the High Courts, it was held while dealing with applications under Order 23, Rule 1, CPC, that if an appeal was preferred by an unsuccessful plaintiff against the Judgment of the trial Court dismissing the suit and if the plaintiff appellant wanted to withdraw not only the appeal but also the suit unconditionally, then such a permission so far as the withdrawal of the suit was concerned, can be granted if there was no question of any adjudication on merits in favour of the defendants by the trial being nullified by such withdrawal. On the other hand, if any such findings by the trial Court in favour of the defendant would get nullified, such permission for withdrawal of the suit should, not be granted. In the present case, the learned Judge felt that no such finding in favour of the Commissioner was being nullified by the withdrawal of the OP at the stage of revision and therefore the withdrawal of OP was permissible. (Para 14)
The above approach of the High Court is legally correct but there are, in our opinion, certain other factors which ought to have been taken into consideration by the High Court. The most important aspect was that on the ground that they would agree for an adjudication as to the nature of the property, the hereditary trustees prayed in this Court in Civil Appeal No. 1930 of 1990 that the proceedings initiated by the Commissioner against them under the Endowment Act, 1959 should be directed to be dropped. This Court thought that in view of the agreement by the trustees to have an adjudication on merits, the Commissioner could and should drop the proceedings. In fact, by the date of the Memo filed for withdrawal of the CRP and the OP, the Commissioner had dropped the proceedings initiated against the hereditary trustees. In our view, having obtained such an advantage from the order of remand, the hereditary trustees could not have precluded the High Court from adjudicating the matter on merits by withdrawing the CRP and the OP. Further, the OP was filed in the District Court by the respondents without impleading the Commissioner, HR & CE. At the stage of confirmation of sale, the Deputy Commissioner, HR & CE had intervened. Again in the CRP there was initially a finding by the learned Judge that there was dedication not merely of the income but of the property. (Paras 15 & 16)
When the Review petition was heard, the Commissioner HR & CE was a party before the High Court and he filed objections claiming that property was a specific endowment and permission of the Commissioner under Section 34 of the Endowment Act, 1959 was necessary and permission of the District Court under the Trust Act was not sufficient. Further, in the Civil Appeal 1930 of 1990 it was agreed by the HR & CE Commissioner, the auction purchasers and the trustees and interested persons that the matter shall be decided “on merits by the High Court and in accordance with law”. After the Memo for withdrawal was filed, the Commissioner contended, in addition, that he having dropped proceedings against the trustees as directed by the Supreme Court, he was entitled to an adjudication on merits. It is, therefore, clear that this Court by consent of parties wanted an adjudication by the High Court, on the questions whether there was a dedication of the corpus of the property or only a charge on the income, and even if it was so whether there was a specific endowment vested in the Commissioner, HR & CE and whether the property could be permitted to be sold when there was a prohibition in the trust deed, whether permission of the District Court under Section 34 of the Trust Act was sufficient and whether permission under Section 34 of the Endowment Act, 1959 was necessary. Further, the Courts have a general ‘parens patriae’ jurisdiction over trusts for charitable and religious purposes and a question of public interest was involved because of the contentions raised by the Commissioner, HR & CE. Therefore, we are of the view that the High Court should go into the above aspects on merits and in accordance with law. (Paras 16, 17 & 18)
Key Points: - Hereditary trustees cannot preclude adjudication on merits by withdrawing revision and original petitions after obtaining advantage from interim orders (!) (!) . - Withdrawal of petitions may be permissible where no finding in favour of the Commissioner is nullified, and parties consent to adjudication on merits (!) . - The High Court should consider whether property is a specific endowment vesting in the Commissioner before permitting withdrawal (!) (!) . - The Court has a parens patriae jurisdiction over charitable trusts and public interest is involved when questions of endowment and sale prohibition arise (!) (!) . - The High Court can decide jurisdictional facts regarding the nature of property under Section 115 CPC even in revision proceedings (!) . - The appeal is allowed and the case is remitted to the High Court for decision on merits in light of the earlier Supreme Court direction (!) (!) .
Judgment
M. Jagannadha Rao, J.-This appeal is preferred by the Executive Officer of the Arthanareswarar Temple against the judgment of the High Court of Madras dated 31.1.1991 in Civil Revision Petition No. 334 of 1987.
2. The following are the relevant facts:
The predecessors-in-interest of respondents 1 and 2 in this appeal, endowed various immoveable properties for the purpose of certain religious ceremonies in six public Hindu temples. The subject matter of the trust-deed comprises of immoveable properties, lands and buildings and also jewels. The immoveable properties comprised 5.32 hectares of wet land situated in Sathampur village and 9 shop buildings situated in Netaji Streets, Erode. On 28.10.1986 the respondents 1 and 2, filed a petition O.P. No. 301 of 1985 under the Indian Trusts Act, 1882 before the District Judge, at Periyar to permit them to sell the lands and immoveable properties including the nine shops by public auction or by negotiations. Obviously the said petition was filed by respondents 1 and 2 as trustees under the trust-deed dated 19.4.1920. The learned District Judge by order dated 28.10.86 dismissed the said petition holding that under the trust deed above mentioned, it was specifically stated that the trust properties should not be sold by the trustees and there was, in any event, no need to sell. Against the said order of the learned District Judge, a revision C.R.P. 334 of 1987 was filed in the Madras High Court but the same was dismissed on 28.11.1988 again on the ground that the sale was prohibited by the trust deed and that circumstances which warrant a sale of the properties did not exist and there was no necessity to sell the properties. Against the said order passed by before the learned Single Judge, a review application was filed by the respondent 1 and 2. The said review application was however, allowed by the learned Single Judge on 3.3.89 granting permission for sale. The learned Judge stated that the contention before him was that the property was not fetching proper income and that if the land was sold, the interest therefrom could be used for the purpose of the temple and such a sale of the immoveable properties would be beneficial and not detrimental to the temple. Accepting this contention, the learned Judge allowed the review application and granted permission of sale of the immoveable properties. It was also stated in the order dated 3.3.1989 that the tenants who appeared through counsel had no objection to the above course. It was further mentioned that the tenants offered to purchase the properties for Rs. 9.25 lakhs. In view of the said offer, the learned Judge directed that the offer of Rs. 9.25 lakhs should be treated as upset price and offers above the said figure should be invited by publication through the District Court and the property be sold to the highest bidder. The entire sale proceeds were to be deposited by the purchaser to the credit of O.P. 301 of 1985 on the file of the District Court, Periyar Erode. The District Judge was directed to deposit the said amount in fixed deposit for a period of three years initially and thereafter renew the same once in three years. The deposit was to be made in the State Bank of India, Periyar, Erode in the name of Trust for its use. The trustees (respondents 1 and 2) were to be permitted to withdraw the interest. It was directed that the sale proceeds should not be withdrawn except for depositing the same in some other better security and that too with the approval of the Court.
3. One of the hereditary trustees of the temple V.E. Nadanasabhabathy (respondent 5 in this appeal) filed a petition before the Commissioner, Hindu Religious and Charitable Endowment under Section 23 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, (Act 22 of 1959), (hereinafter called the Endowment Act, 1959) bringing to his notice that the properties had been ordered to be auctioned on 23.12.1989 by the learned District Judge, Periyar,
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