The mortgage deed, exceeding 5 years, required a NOC from the Commissioner of HR & CE as per Section 34(1) of the Hindu Religious and Charitable Endowments Act.

The prayer in the Writ Petition is for issue of a Writ of Mandamus to direct the respondent to release the pending document bearing P.No.120/2009 presented for registration before the respondent on 26.08.2009. The document is a mortgage deed by which one Mr.Balaraman son of Kannan has created a mortgage of his lease hold right of the land comprised in Survey No.2349/1 together with the superstructure measuring about 620 sq. ft. From the recitals of the mortgage deed it is seen that the said Balaraman has executed the mortgage in favour of the petitioner with a right of redemption after a period of 5 years and if the said Balaraman fails to clear the mortgage debt within six months on the expiry of 5 years, the petitioner is entitled to foreclose the mortgage. Thus it is seen that the mortgage is for a period exceeding five years.

2. The learned Additional Government Pleader based on written instructions given by the respondent would submit the document was kept pending by the then registering officer, as P.No.120/2009, for getting NOC from the HR & CE Department as the land and building belong to Ellamman and Pazhandiamman Temple Devastanam and the document is still pending for want of NOC from the HR & CE Department under Section 34 of the Hindu Religious and Charitable Endowments Act (The Act).

3. Based on the above submissions two questions arise for consideration as to whether

(i) No objection Certificate is required from the HR & CE Department under the Act before registering and releasing the document in question, and, (ii) Is the respondent justified in keeping the document as a pending document and refusing to register and release the same on the ground that NOC has not be produced under Section 34 of the Act.

4. Section 34(1) of the Act states that any exchange, sale or mortgage and any lease for a term exceeding five years of 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 of HR & CE as being necessary or beneficial to the institution. As seen from the recitals of the mortgage deed of 26.08.2009 it is for a period exceeding 5 years, with a right to foreclose the mortgage after 6 months, after expiry of the 5 year period. If that be the case, in the absence of a NOC from the Commissioner of HR & CE such transaction is deemed to be null and void in terms of Section 34 (1) of the Act. This conclusion is supported by a decision of this Court in Basha Sahib Vs. Valikandapuram Village Kasi Viswanathaswamy Koil, 2003 (1) CTC 519, wherein this Court

"7. Further, the suit property is the property of the temple. Therefore, neither the trustee nor the manager of the temple has any right to sell the property to any other person. If at all only with the permission of the Commissioner, H.R. & C.E. Board, such a sale can be effected. Admittedly, the Commissioner of H.R.& C.E., has not conveyed the property nor the property was conveyed by the second plaintiff with the permission of the Commissioner. Therefore, Ex.B.1 sale deed relied upon by the defendant has no validity at all. The sale deed is sham and nominal, inasmuch as it has been executed by the person other than the person competent to sell the property. Therefore, no rights flow from Ex.B.1. Consequently, Ex.B.2 by which the property was settled in favour of the Education Department is also sham and nominal. A person who does not possess any right cannot convey that right. Therefore, no rights flow either by Exs.B.1 or B.2. The lower Appellate Court has rightly concluded that Exs.B.1 and B.2 do not convey the right over the property."

5. Thus it appears that no right could flow in favour of the petitioner by virtue of the mortgage deed dated 26.08.2009 since admittedly no sanction has been grated by the Commissioner, HR & CE for such transaction as required under Section 34 (1) of the Act. Therefore, it has to be necessarily held that such