R. Murali vs Kanyaka P. Devasthanam & Charities

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2005 Supreme(SC) 931

2005(5) Supreme 199
Supreme Court of India
(From Madras High Court)
D.M. Dharmadhikari & Arun Kumar, JJ.
R. Murali & Ors. —Appellants
versus
Kanyaka P. Devasthanam & Charities & Ors. —Respondents
Civil Appeal No. 4467 of 2005
(Arising out of SLP (C) No. 6846 of 2004)
Decided on 25-7-2005
Counsel for the Parties :
For the Appellants : K. Parasaran, Sr. Advocate, V. Balachandran, Advocate.
For the Respondents : A.K.Ganguly, Sr. Advocate, T. Harish Kumar, Advocate.

Headnote:Civil Procedure Code, 1908—Section 92—Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959—Sections 5(e), 64 and 107—Leave for instituting a suit for seeking relief of modifying/re-framing a scheme for administration of the institution filed by appellant—Various acts of mismanagement by present members of Board of Trustees were alleged — Respondents opposed application on ground that Institution was governed by Tamil Nadu Act where by Section 92 CPC was inapplicable—Single Judge granted the leave holding that respondents themselves had obtained decree for declaration and injunction on their claim of protection under Article 26 of the Constitution of India—Division Bench by impugned judgment revoked the leave holding that earlier decree obtained by respondents was contrary to Section 64 of the Tamil Nadu Act and part of that decree was incidental and not a ratio decidendi—Appeal—Division Bench erred in revoking the leave and impugned judgment was liable to be set aside.
Held : The respondents themselves obtained a decree of declaration that the institution belongs to a religious denomination and the authorities under Tamil Nadu Act, have no powers of framing or modifying any scheme of administration of the institution under the Tamil Nadu Act. We fail to understand how an executable part of decree granted by the city civil court which clearly restrains the authorities under the Tamil Nadu Act from modifying or framing the scheme of administration of the institution and declares the institution to be of a religious denomination, can be described as merely ‘incidental observation’, ‘obiter dicta’, ‘not part of ratio decidendi’ and ‘not authoritative.’ The operative part of the judgment containing the decree, rightly or erroneously granted, having not been appealed against, has attained finality and cannot be described as an ‘incidental observation’, ‘not a part of ratio decidendi’, ‘obiter dicta’ and ‘not authoritative’ as has been done by the Division Bench in its impugned judgment. The conclusion of the city civil court on which decree is based is the main and operative part of the decision. The Division Bench has committed a gross error of law in ignoring a vital part of the judgment and decree dated 13.12.1976 of the City Civil Court, Madras which was obtained by the respondents themselves as the members of the Board of Trustee in their own suit instituted and numbered as O.S.No. 7453 of 1972. Such a judgment and decree is valid and binding on the respondents. By their own conduct of obtaining a decree of declaration and injunction against the authorities, under the Tamil Nadu Act, they are estopped from raising a contrary plea in the subsequent suit instituted against them and oppose grant of leave of the Court sought by the present appellants under Section 92 of the Code of Civil Procedure. The respondents cannot be allowed to approbate and reprobate in the two suits in which the subject matter and issue of jurisdiction of civil court involved are the same. The Division Bench of the High Court also went wrong in holding that the decree granted by the city civil court in the year 1976 in favour of respondents is contrary to section 64 of the Tamil Nadu Act. We have examined the relevant provisions of the Tamil Nadu Act. The institution under consideration is carrying on multifarious activities of religious and charitable nature. It is not purely a ‘Hindu Religious Institution or Endowment’. It is also a ‘charitable endowment’ as defined in clause (5) and ‘religious charity’ under definition clause (16) of section 6 of the Tamil Nadu Act. As a result of decree of declaration that the institution is of religious denomination of Arya Vysya community, it had protection under Article 26 of the Constitution of India from interference in its administration by the authorities under the Tamil Nadu Act. This right guaranteed under Article 26 of the Constitution has been expressly protected under section 107 of the Tamil Nadu Act by making inapplicable the other provisions of the Act including section 64 to institutions of religious and charitable nature of religious denominations. (Paras 15 to 18)

Judgment

Dharmadhikari, J.—Leave to file appeal is granted.

Counsel for the parties are heard on the merits of the appeal.

2. The appellants are aggrieved by the impugned order of the Division Bench of the High Court of Madras whereby leave granted under Section 92 of the Code of Civil Procedure to file suit for reframing scheme of administration of Sri Kanyaka Parameshwari Devasthanam and Charities by the learned single Judge has been revoked.

3. The aforesaid religious endowment and charitable trust admittedly is carrying on various activities which include running of high schools for girls and boys, maintaining three choultries, hostel for college students, Annachatram for feeding poor students and pilgrims, cremation ground, gardens and maintaining market in the vicinity of the temple.

4. Respondent Nos. 2 to 7 as members of the Board of Trustees of the religious and charitable institution named above, had instituted a suit No. OS 7453 of 1972 in the City Civil Court at Madras seeking a decree of declaration and injunction against the Commissioner and Deputy Commissioner restraining them from exercising powers under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 [hereinafter referred to as ‘Tamil Nadu Act’]. In the suit, it was pleaded that Kanyaka Parameswari temple is a denominational temple with guaranteed fundamental freedom under Article 26 of the Constitution of India from interference of the Commissioner and Deputy Commissioner under the Tamil Nadu Act in the administration of the institution. The city civil court by judgment dated 13.12.1976 granted a decree of declaration in favour of the trust and its trustees that the temple is a religious denomination of Arya Vysya community. A decree of permanent injunction was also granted restraining Commissioner and Deputy Commissioner under the Tamil Nadu Act from interfering, in any manner, with the management and administration of the properties of the institution or taking any proceedings or modifying the schemes framed for governing the institution.

5. It is in the above background of the grant of decree of declaration and injunction in the civil suit OS No. 7453 of 1972 of the city civil court restraining interference of Commissioner and the Deputy Commissioner under the Tamil Nadu Act in the affairs of the religious and charitable institution that the present appellants had sought leave under section 92 of the Code of Civil Procedure [for short ‘CPC’] from the learned single judge of the High Court for instituting a suit for seeking relief of modifying/re-framing a scheme for administration of the institution. In the petition seeking leave to file suit, various acts of mismanagement by the present members of the Board of Trustees were alleged.

6. The application for leave sought under section 92 of the Code to institute suit was opposed by respondent Nos. 2 to 7 as members of the Board of Trustees, on the ground that institution is governed by the Tamil Nadu Act and under section 5(e) thereof, the provisions of sections 92 & 93 of the CPC are inapplicable to the institution. It was submitted that the jurisdiction to settle or modify a scheme of administration of the religious and charitable institution vests in the Joint Commissioner or Deputy Commissioner, as the case may be, under section 64 of the Tamil Nadu Act.

7. The learned single judge by order passed on 2.9.2003 granted leave under section 92 of the CPC to the present appellants and rejected the objection raised by the respondent trustees. It is held that the respondents in earlier suit (supra) having sought and obtained a decree of declaration and injunction on their claim of protection under Article 26 of the Constitution of India, the appellants cannot be compelled to approach the authorities under the Act for obtaining relief which is sought in the suit. The learned single judge has also held that the institution having been declared to be of a religious denomination in accordance with

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