Important point
When an endowment is governed by Hindu Religious and Charitable Endowments Act, provisions of Section 34 of Indian Trust Act would not be applicable.

Headnote:Indian Trust Act—Section 34—Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959—Sections 31, 34 and 63—Government land to an extent of 10.38 acres situated around four temples was set apart by British Government for use of its income for poojas and maintenance of temples—Respondents in their application u/s 63 of the Act were declared trustees cum poojaries of two temples hereditarily—Subsequently Settlement Tahsildar passed an order for issue of ryotwari pattas for lands covered by four title deeds in favour of four institutions represented by respondents—Order was set aside in appeal and matter was remanded—Despite observation in the order that HR & CE Department was not impleaded as parity, no steps were taken by respondent to implead the Department or the deity—Settlement Tahsildar proceeded to uphold claim of respondents for ryotwari patta—Claimants-respondents then moved an application in Court of District Judge for grant of permission to sell the land in question and HR & CE Department or deity were not impleaded—District Judge allowed the application—Order was challenged on plea that it was a public trust and a religious trust and Section 34 of the Act had no application—High Court upheld order of District Judge—Appeal—Whether provisions of Section 34 of Indian Trust Act were applicable and whether impugned judgment was sustainable? No.
       Held : Prima facie, Government land had been dedicated to the temples by way of grants by the Government. Even if, the income therefore had alone been dedicated to the temples, it would still be a religious trust or endowment and certainly not a private trust to which the Indian Trusts Act would apply. Section 1 of the Indian Trusts Act itself provides that nothing contained therein applies to public or private religious or charitable endowments. The endowment here was certainly not a private endowment since there is no case that the temples are private. The endowment was for a religious purpose, the conduct of poojas in the temples and the maintenance of the temples. Therefore, endowment was of public property for the benefit of public temples and the poojaries were constituted the trustees. They were trustees imposed with the obligation of spending the income from the properties, for the poojas and maintenance of the temple. It was clearly a case of a public religious endowment and by virtue of Section 1 of the Act, the Indian Trusts Act would have no application. Learned counsel for the respondents tried to argue that the application under Section 34 of the Indian Trusts Act was maintainable but could not argue that these were private trusts by reference to any relevant material. The lands were government lands and the Government had dedicated the properties or the income therefrom for the up-keep of public temples. By no stretch of imagination, it can be held that it was a private trust coming within the purview of the Indian Trusts Act. The District Judge has, therefore, clearly acted without jurisdiction in entertaining the application under Section 34 of the Indian Trusts Act. On this short ground, it has to be held that the order passed by the District Judge in the application filed under Section 34 of the Act granting permission to the claimants to sell the properties is one without jurisdiction. The High Court was completely in error in brushing aside this vital aspect while considering whether the District Judge had acted within jurisdiction in entertaining the application under Section 34 of the Indian Trusts Act. (Para 8)
       Going by the definition it is clear that the endowment in question is governed by the H.R. & C.E. Act. Even if one were to accept the case of the claimants that it was an Inam granted to an archaka, the same would come within the definition of “religious endowment” or “endowment” under the Act in view of Explanation (1) thereto. Thus, it is clear that the endowment, gift or donation was governed by the H.R. & C.E. Act. It is in this context that we have to appreciate the effect of the conduct of the claimants in getting themselves appointed as trustees by moving under Section 63(b) of the Act. Any alienation would, prima facie, be hit by Section 34 of the Act and even if the case of the claimants were to be taken at face value, the transaction would be hit by Section 41 of the Act. In either case, the permission contemplated by the respective sections was a must and the District Court lacked jurisdiction to give the permission for sale on an application under Section 34 of the Indian Trusts Act, that too, without issuing notice to and hearing the authorities under the H.R. & C.E. Act. (Para 9)
       It was contended that the purchase price has been deposited in a Fixed Deposit and so long as there is no failure on the part of the claimants to perform the services which they are liable to perform, there is no necessity to interfere with the transaction of sale affected by them. It is seen that going by the prevalent valuation and the market value as reported, the lands were sold for a meager price or that the sale deeds indicated only a meager price as consideration for the same with all that it implies. Such a transaction is clearly seen to be not in good faith. That the District Court proceeded to accept the value for which the property was being sold even without making an enquiry into the market value that the properties would have fetched at the relevant time while giving the permission for the sale, is shocking. The jurisdiction under Section 34 is advisory. The Court should have satisfied itself of the need for sale and the propriety of the sale proposed. The mere pleas that it was difficult to protect the property and that there was only meager income therefrom were by themselves not grounds to direct or permit the sale. (Para 11)

Judgment

P.K. Balasubramanyan, J.—1. An extent of 10.38 acres of land, which was government land and situated around four temples, namely, Keelakottai Sri. Vinayagar Temple, Muthampatti Sri Vinayagar Temple, Mottakottai Sri Vinayagar Temple and Mariamman and Bhagavathiamman Temples were set apart by the British Government for the purpose of the use of its income for the poojas and maintenance of the temples. The land was put in the possession of one Veerana Pandaram, who was the poojari. Respondent Nos. 1 to 7 herein, the descendents of Veerana Pandaram filed a petition before the Deputy Commissioner, Hindu Religious and Charitable Endowments, Madurai, under Section 63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter called the ‘H.R. & C.E. Act’) praying that they may be declared as hereditary trustees cum poojaries of the Mariamman and Bhagavathiamman Temples. This application was made, when after an enquiry, a preliminary report was made by the Special Inspector, to the Assistant Commissioner of H.R. & C.E. Administration Department, Madurai, to the effect that the lands endowed and belonging to the temples, are being enjoyed by the three poojaries, who render pooja services. The poojaries were taking the income, but were not maintaining any accounts. As various development works had to be done in the temple, the lands may be assessed to contribution from the concerned fasli. The Special Inspector also suggested that show cause notices be issued to the poojaries regarding the appointment of trustees for the temple. In their application, the successors of Veerana Pandaram prayed in terms of Section 63(b) of the H.R. & C.E. Act, that they and the three respondents to the said application, may be declared as hereditary trustees of both the temples, the office as hereditary and them as the trustees of Mariamman and Bhagavathiamman Temples. By order dated 4.10.1972, the Deputy Commissioner, H.R. & C.E. Department, declared that the applicants before him are holding the office of trusteeship cum poojariship of Mariamman and Bhagavathiamman Temples at Keelakottai village, Dindigul Taluk, Madurai district hereditarily. No declaration was given regarding the rights of the applicants, since no court fee was paid for the grant of such a relief. Thus, the successors of Veerana Pandaram were recognized as trustees of the temples. Subsequently, the Settlement Tahsildar, Madurai passed an order on 31.03.1968 for issue of ryotwari pattas for lands covered by four title deeds referred to in that order, in favour of the four institutions represented by respondent Nos. 1 to 7. The respondents appear to have belatedly challenged the said order before the Appellate Tribunal. Neither the deity nor the H.R. & C.E. Department was impleaded in the appeal which was filed four years after the order of the Settlement Tahsildar. That appeal is seen to have been allowed and the matter remitted for a fresh consideration by the Settlement Tahsildar. It was noticed in the order of remand that the H.R. & C.E. Department was not impleaded, and that it was necessary to implead the Department for an effective adjudication. In spite of it, it is seen that the respondents did not bring on record the H.R. & C.E. Department or the deity in the array of parties, before the Settlement Tahsildar. The order does not also show that notice was issued either to the deity or to the Department. That no notice was issued is seen admitted by the respondents before the High Court of Madras in a revision filed by them against the order refusing to grant a stay pending a revision filed by them against the proposal to appoint a fit person under the H.R. & C.E. Act in their place. The said order of the High Court dated 7.6.2002 is annexed as Annexure P-11 and in paragraph 4 thereof, it is recorded by the learned Judge that:

“The petitioners (the contesting respondents herein) would further submit that in none of the above referred proceedings, the H

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2005 Supreme(SC) 1415

Important pointWhen an endowment is governed by Hindu Religious and Charitable Endowments Act, provisions of Section 34 of Indian Trust Act would not be applicable.

Important point
When an endowment is governed by Hindu Religious and Charitable Endowments Act, provisions of Section 34 of Indian Trust Act would not be applicable.