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Madurai Bench of Madras High Court
V.M. VELUMANI, J.
N.S. Ramaraj & Others
Versus
Rajapalayam Poonachamiyar Madam Nanthavanam & Others
C.R.P.(MD).No.554 of 2011(PD) & M.P.(MD) Nos.2 of 2011 & 1 of 2012
Decided On : 09-10-2014
Indian Trust Act, 1882 - Section 34 - The court considered Section 34 of the Indian Trust Act, 1882, which allows the court to order the sale of Trust property even when there is a bar on the alienation in the Trust deed, under exceptional circumstances and rare cases. The court must be satisfied that it is absolutely necessary for the implementation and continuation of the objects of the Trust and for the preservation of the property.
Fact of the Case:
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.
Finding of the Court:
The court considered the Trust deed and found that there is a specific bar for sale of the properties mentioned in the Trust deed. However, the court held that under exceptional circumstances and rare cases, the court can order sale of the property even when there is a bar on the alienation in the terms of the Trust deed. The court must be satisfied that it is absolutely necessary for the implementation and continuation of the objects of the Trust and for the preservation of the property. The court found that the learned Judge failed to properly discharge his power and set aside the impugned order.
Ratio Decidendi: The court held that under exceptional circumstances and rare cases, the court can order sale of Trust property even when there is a bar on the alienation in the Trust deed. The court must be satisfied that it is absolutely necessary for the implementation and continuation of the objects of the Trust and for the preservation of the property.
Result: The 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. 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.
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. 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 ido
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