N. Sripadmanabha Nadar vs P. Ramalinga Nadar and Others

K.M. Natarajan, J.—The unsuccessful first defendant before the courts below has preferred this Letters Patent Appeal challenging the

judgment and decree passed in A.S. No. 1150 of 1979 rendered by a learned single Judge of this court. The brief facts which are necessary for

the disposal of the appeal are as follows:-The respondents filed the suit for a declaration that the Kaikkan Pathy Narayanaswamy Trust is the

private family trust of the respondents and others, namely, the appellant/first defendant and defendants 2 to 10 for removal of the appellant from

management; for appointing new trustees and vesting trust properties in them; for rendition of accounts by the appellant from 28.8.1983 and for

settling a scheme. The case of the respondents-plaintiffs is that one Parameswaran Nadar constructed a temple and installed Narayanasami therein

and he was conducting daily poojas, monthly kattalais and yearly festivals. The said Parameswaran Nadar acquired 11 items of properties for the

said purposes. Respondents 1 and 2 are the sons of Parameswaran Nadar. Respondents 3 and 4 are his major grand-sons. During his life time,

Parameswaran Nadar himself has constituted as the first trustee. For the management and administration of the temple and its properties, he also

executed a registered Odampadi on 18.9.1952. As per the provisions of the said Odampadi Narayanaperumal Nadar; the eldest son of

Parameswaran Nadar, was to assist his father during his life time and thereafter he was to enjoy the properties, realise the income therefrom and

perform the poojas without default. The other members of the family were entitled to get prasadam and other emoluments. As per the said

Odampadi Narayanaperumal Nadar was empowered to appoint his successor. Even after the execution of the registered Odampadi, the father

Parameswaran Nadar purchased item 12 and he died subsequently on 12.1.1129 M.E. (28.8.1933) (1954 AD). His eldest son Narayanaperumal

Nadar as per the Odampadi, succeeded him as trustee and he died on 23.5.1967, without appointing a successor and without maintaining

accounts of the income as well as expenditure. Thereafter, the appellant/first defendant who is the son of the said Narayanaperumal Nadar got into

the management of the temple and its properties and had been conducting poojas. But, he did not maintain accounts of the income and expenditure

in respect of the trust properties, and he suppressed the same. Hence, the suit is filed by the respondents claiming that they have got a right to see

that the trust properties are properly protected and the performance of the trust is properly conducted.

The appellant, who is the first defendant, resisted the suit and in the written statement, it was inter alia contended that no trust was founded by

Parameswaran Nadar. Though Parameswaran Nadar acquired 11 items of properties, it is not admitted that such acquisition was in favour of any

trust. The appellant claimed that Parameswaran Nadar was the absolute owner of the Pathy and Narayanaswamy. Narayanaperumal was

managing the affairs of the Pathy as absolute owner. The said Narayanaperumal appointed the appellant as his successor, and he is the absolute

owner of the Pathy. From the date of appointment by Narayanaperumal, he remained in possession as absolute owner of the Pathy from

29.5.1967. He would state that he is the absolute owner of the Pathy and its properties from the date of his appointment by Narayanaperumal and

nobody has any right or control over him or the Pathy or the properties. Further, nobody has any right to ask for any accounts. He has further

stated that his father never kept any account and hence there is no question of any suppression of accounts. The respondents have no right to ask

for framing a scheme for the management of the Narayanaswamy Pathy. After the death of Narayanaperumal the appellant renewed the building at

a cost of Rs. 3,000/- and has also spent about Rs. 2500/- for constructing retaining walls and has collected materials for renovation of the pathy

for Rs. 1500/-. Hence, he prayed for dismissal of the suit.

The second defendant filed a written statement contending that the respondents/plaintiffs first defendant is in possession as absolute owner of the

Pathy and that Narayana Perumal Nadar appointed the first defendant as his successor. Hence, he also prayed for dismissal of the suit.

Defendants 3 to 10 filed a written statement supporting the case of the plaintiffs/respondents herein and submitted that for better and efficient

management of the trust, a scheme is to be framed.

The learned Subordinate Judge on the basis of the oral and documentary evidence held that Parameswaran Nadar has founded the private

family trust that he was not the sole owner of the Pathy or the temple, that Narayanaperumal Nadar was only a trustee as per the registered

Odampadi dated 18.9.1952, and that the first defendant/appellant was appointed as successor by his father Narayanaperumal. The learned Sub

Judge also found that the first defendant deserves to be removed since he refused to maintain accounts and that the first defendant should render

account from the date when he assumed management on 23.5.1967 till a suitable scheme is framed and the new Trustees take charge of the

properties, and this will be worked out in the final decree proceedings. The trial Judge further held that the first defendant should remain in

possession as Receiver from 24.8.1976, the date of the judgment, till a suitable scheme is framed and the new trustees take charge of the trust

properties. The first defendant was directed to render accounts twice in a year.

As against the said decree, the first defendant/appellant preferred the first appeal before this court in A.S. No. 1150 of 1979 challenging the

findings of the trial Judge. The learned single Judge of this Court on a careful consideration of the relevant materials, while accepting the contention

of the respondents that the appellant was not validly appointed trustee, upheld the finding of the trial court that the appellant had rendered himself

liable to be removed as he denied the trust and the trust character of the properties belonging to the trust. The learned single Judge also came to

the conclusion that it is no longer safe in the interest of the trust estate and also the temple and the welfare of the beneficiaries to allow the

management to continue in the hands of the appellant and consequently dismissed the appeal with costs holding that no interference with the

judgment of the trial court is called for. Only in these circumstances, the Letters Patent Appeal has been filed.

Learned counsel for the appellant did not seriously dispute the concurrent findings of both the courts below. The learned counsel for the

appellant mainly submitted that during the pendency of the proceedings, the Deputy Commissioner declared that the suit temple is a public one. As

against the same, the appellant filed a suit, O.S. No. 78 of 1979 and the said suit was decreed on 31.3.1981 and as against the same, the

department represented by the Deputy Commissioner filed A.S. No. 1115 of 1981 and the said appeal was allowed on the ground of want of

notice u/s 80 C.P.C. In view of the said finding, the original order passed by the Deputy Commissioner declaring the temple as a public one is

restored. The learned counsel submitted that in view of the above decision that the suit trust is a public trust, the respondents/plaintiffs are not

entitled to the reliefs prayed for in the suit and on that ground alone, the appeal is to be allowed. It is also contended by the learned counsel for the

appellant contended that Parameswaran Nadar has two wives and all his family members, mules and females are not made parties. The details of

the heirs of Parameswaran Nadar have been given in para 5 of the written statement. It was pointed out by the learned counsel for the appellant

that the suit without impleading the other heirs of Parameswaran Nadar and the deity is not maintainable. On that ground also, the suit is liable to be

dismissed.

On the other hand, the learned counsel for the respondents submitted that none of these grounds was raised before the appellate court as well as

the trial court and that in para 12 of the judgment of the learned single Judge it is specifically observed that except the contentions referred to

therein, no other point was urged on behalf of the appellant. As regards the suit said to have been filed against the decision of the Deputy

Commissioner that it is a public temple, no records have been produced. Even otherwise, the respondents are not parties to the same and that they

are not bound by those proceedings. Admittedly there is no deity in the temple, and only a vel is kept on a chair inside the Pathy as symbol or

Narayanaswamy. Thus the prayer in the suit directing appellant to render an account of the income and expenditure, which he has not accounted

so far, and for framing of a scheme would not in any way be affected by the alleged declaration that it is a public temple on the application filed by

the appellant himself. The appellant cannot escape the liability to render an account of the income and expenditure in respect of the trust properties.

The respondents never claimed any benefit for themselves. They have filed the suit only for the trust. The suit for rendition of accounts by a

beneficiary is not barred u/s 108 of the Hindu Religious and Charitable Endowments Act. The question of misjoinder and non-joinder of parties

does not arise at this stage. The mere plea in the written statement may not be sufficient without adducing independent evidence. No evidence was

adduced and no issue was raised and hence the appellant is deemed to have waived that point. Admittedly the final decree was passed on

2.7.1982 and the said finding has not been challenged. As per the said finding, the appellant has to deposit Rs. 2,25,000/- and odd. In view of the

fact that the said finding has become final, it is not open to the appellant to raise all these contentions at this stage. A Bench of this Court has also

directed the appellant to deposit Rs. 2,25,000/- within three months. In spite of the fact that the time was extended for deposit of the said amount,

so far the amount has not been deposited and the appellant is not entitled to ask for any indulgence from this court. The appellant has no right to

appropriate the income for his personal benefit. Any worshipper can file a suit even in the case of a public temple. Lastly it was submitted by the

learned counsel for the respondents that no ground whatsoever was made out for interference with the concurrent finding and the appeal is liable to

be dismissed.

After hearing the learned counsel appearing on either side, we find that the concurrent finding of both the courts below is not seriously disputed

by the learned counsel for the appellant. The learned counsel put forward his arguments on the basis of the subsequent proceedings in respect of

the nature of the trust and also the effect of non-joinder and the deity and the other beneficiaries. Let us consider the said contentions in seriatim.

As regards the effect of the subsequent proceedings instituted under the provisions of the Hindu Religious and writable Endowments Act, it is

seen that after the suit was filed and during the tendency of the proceedings, the appellant himself has filed a petition to declare the suit trust as a

private trust and on the said application, the Deputy Commissioner declared the institution as a public religious institution and the same was

confirmed by the Commissioner. Thereupon a suit was filed and it was decreed to the effect that it is a private trust and not a public temple. The

Department filed an appeal and it was allowed on the preliminary objection that the suit without issuance of a notice u/s 80 C.P.C. is not

maintainable. It is to be noted that the contention of the appellant throughout is that it is only a private family trust and not a public trust. The

learned counsel for the respondents submitted that the suit was admittedly filed prior to parties and that the rights of the parties will be determined

on the basis of the rights available to them on the date of the suit. In this connection, our attention was drawn to the decision of the Supreme Court

in Nand Kishore Marwah and Others Vs. Samundri Devi, . Their Lordships while considering the effect of the expiry of the exemption period of

10 years during the pendency of the litigation, held:

It is well settled that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit.

It was observed that even if 10 years expired during the pendency of the appeal, the tenant is not entitled to the protection under the Act. The said

decision was considered by a Division Bench of this Court in S.N. Kuba v. P.P.I. Vaidhyanathan 1988 T.L.N.J. 1 and therein the view that the

rights of the parties will be determined on the basis of the rights available to them on the date of the suit was accepted and reiterated. It is also

brought to our notice that in a suit between two rival claimants, wherein the Hindu Religious and Charitable Endowments Department is not a

party, the civil court has jurisdiction to decide the question incidental to the same even though it is one which is to be decided by the Deputy

Commissioner. In Sri Venkataramanaswamy Deity at Kothur Village Vs. Vadugammal, a Bench of this court held as follows:-

The preponderance of judicial authority in the Madras High Court is that a civil suit is not barred in respect of a relief which cannot be granted by

the Deputy Commissioner for Endowments and that in such a suit, the civil court has jurisdiction to decide incidental issues which are within the

jurisdiction of the Deputy Commissioner.

In an earlier decision of this court in Ayisomma v. Kunhali 1957 I.M.L.S. 5 it was held:

A civil Court has jurisdiction to decide whether a particular institution is a public temple or not when such a question arises incidentally to other

disputes in the case before the Court. The dispute referred to in Section 84 is a dispute between the trustee of an institution on one hand and the

Board on the other. The section does not bar either expressly or impliedly the jurisdiction of the civil Court when the dispute is not with the Board

but between two private parties.

In this connection, the learned counsel for the respondents drew our attention to the decision of the Supreme Court reported in B.K.C. Muruga

Konar (Dead) by Lrs. and Others Vs. V. Setha Kone and Others, wherein their Lordships held:

Chapter VIII of the Act (Madras Hindu Religious and Charitable Endowments Act 1951) has no bearing on the question of the liability of a trustee

to render accounts to the beneficiaries as a group or class and it does not provide for determining or deciding a dispute in respect of such rendition

of accounts and hence. Section 108 does not bar a suit filed by the group of beneficiaries against the trustees of the temple for rendition of

accounts. The decree passed in such suit without deciding the question whether a temple was a public of private trust, would not be illegal.

In view of the ratio laid down in the above decisions, it is not open to the appellant to contend that the decree passed in this proceeding against him

for rendition of accounts and for framing scheme is not enforceable in view of the subsequent decision invited by him during the pendency of the

proceeding of the application filed by him that is a public religious institution. It is to be noted that the respondents are not parties to the said

proceeding. Further, in respect of the same, no grounds have been raised except putting for the contention by way of arguments. Hence, we find

no merit in the said contention.

As regards the question or non-joinder of parties, the learned counsel for the appellant drew the attention of this court to the contentions raised

in para 5 of the written statement, wherein it is stated that Parameswaran Nadar had two wives and all his family members, males and females, are

not made parties. Further, Parameswaran had four sons by his first wife namely, Narayanaperumal, Ramalingam, Sriraman and Muthiah. The

daughters of Narayanaperumal, Ramalingam, Sri Raman and Muthiah are not made parties. Muthiah''s second wife''s son is also not made party.

The second plaintiff''s second wife''s sons and daughters are also not made parties. As rightly observed by the learned counsel for the respondents,

though the appellant made the said averments that Parameswaran Nadar''s heirs were not made parties, no issue was framed and no evidence was

adduced and such contention was not put forward at any stage thereafter and for the first time he has come forward with this contention before this

court. In view of the fact that the appellant has not pursued the same at the earlier stage, it is not open to the appellant to raise the same before this

court in the Letters Patent Appeal. Even otherwise the mere fact that he made some averments would not mean that those persons are also

interested in the trust and their presence is absolutely necessary for final adjudication in the suit claim. We find much force in the contention of the

learned counsel for the respondents that there is absolutely nothing to substantiate the same. Since he was not pressing the same thereafter, he is

deemed to have waived the said plea of non-joinder, we are of the view that the decree passed in the case directing the appellant to render

accounts and for framing a scheme as he claimed adverse title to the trust properties and denied the existence of the trust, is correct.

It was next submitted by the learned counsel for the appellant that the deity is not impleaded as a party, that the suit can be filed in the name of

the deity to enforce the private right and that the non-joinder of the deity is fatal. In this connection, he drew the attention of this court to the

decision of the Supreme Court in Bishwanath and Another Vs. Shri Thakur Radhaballabhji and Others, That was a case where a suit was filed by

an idol for a declaration of its title and possession of the property from a person who is in illegal possession under a void alienation. It was held that

the suit being only in the nature of enforcement of a private right by the idol and not being for any one of the reliefs found in section 92 of the CPC

falls outside its purview and is not barred. Even in that case it was held that when such an alienation has been effected by the she bait acting

adversely to the interest of the idol, even a worshiper can file the suit, the reason being that the idol is in the position of a minor and when the

person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of

representation to protect its interest. The said decision is not an all helpful to the case of the appellant in any way. Further, the present suit is filed

by the beneficiaries of the private trust challenging the mismanagement of the appellant herein and misappropriation of the income from the trust,

and praying for his removal and framing a scheme and also for rendition of accounts by him. They filed the suit only on behalf of the trust and as

such, the question of impleading the idol does not arise. It is the admitted case that no idol was installed, but only a ''vel'' is kept on a chair as a

symbol of Narayanaswamy. In para 3 of the written statement, it is specifically stated that there is no deity or vigraham installed in the pathy. But,

they were offering worship only to a vel mounted on a chair inside the pathy as symbol of Narayanaswamy. In the circumstances, the question of

non-joinder of idol also does not arise. Hence, we do not find any merit in the contention that the suit is bad for non-joinder of parties. The learned

counsel for the respondents drew our attention to the decision of the Supreme Court in Sri Vedagiri Lakshmi Narasimha Swami Temple Vs.

Induru Pattabhirami Reddy, where their The learned counsel for the respondents drew our attention to the decision of the Supreme Court in

V.L.N.S. Temple v. I. Pattabhirami AIR 1967 S.C. 701 where, their lordships of the Supreme Court while considering the scope of Sections 71,

19 and 23 of the Trusts Act with regard to ex-trustee''s liability for rendition of accounts and also the scope of Section 93 and Chapter 7 of the

Madras Hindu Religious and Charitable Endowments Act 1951, held that no trustee can get discharge unless he renders account of his

management and this liability is irrespective of any question of negligence or willful default. The present trustees can demand rendition of accounts

from ex-trustees in respect of their management without alleging against them any acts of negligence or willful default. It is further observed that u/s

9 of the Code of civil Procedure, the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either

expressly or impliedly barred. It is a well settled principle that a party seeking to oust jurisdiction of an ordinary civil court shall establish the right to

do so. Section 93 of the Act does not impose a total bar on the maintainability of a suit in a civil court. It states that a suit of the nature mentioned

therein can be instituted only in conformity with the provisions of the Act, that is to say, a suit for other legal proceeding in respect of matters not

covered by the section can be instituted in the ordinary way. It therefore imposes certain statutory restrictions on suits or other legal proceedings

relating to matters mentioned therein. Now, what are those matters? They are: (1) administration or management of religious institutions and (2) any

other matter or dispute for determining or deciding which provision is made in the Act. The clause ""determining or deciding which a provision is

made in this Act"" on a reasonable construction, cannot be made to qualify ""the administration or management"" but must be confined only to any

other matter or dispute. Even so, the expression administration or management"" cannot be construed widely so as to take in any matter however

remotely connected with the administration or management. ""Finally it is stated that"" Chapter 7 does not provide for determining or deciding

dispute in respect of rendition of account of management by ex-trustee to present trustee and hence the suit by present trustee against ex-trustee

for rendition of accounts is not barred by S-93"". Applying the above ratio to the facts of this case, the suit for rendition of accounts even in case of

religious institution comes under the purview of the Act and is not barred.

With regard to the framing of the scheme, the learned counsel for the respondents drew the attention of this court to the decision of the

Supreme Court reported in Jagdish Prasad since deceased through Lrs. Vs. Mahant Tribhuwan Puri, where their Lordships have observed:

Ram Mandir has been declared to be a public temple. There is no deed conferring the right on any person to manage the temple exclusively. There

is a rival claim for the right of management. It would be, therefore, proper to frame a scheme for management. We, therefore, direct the District

Judge to frame a scheme for proper management of the temple. In that scheme, plaintiff 1 since deceased by his L.R.S. and the defendant be given

equal rights in the management. If they are not able to co-operate each other, they may be given such exclusive rights in the alternative periods of

six months or one year. The scheme also may provide the right to nominate the successor of plaintiff 1 end the defendant for management of the

temple.

It is clear from the above decision of the Supreme Court that for proper management of the temple, in which both the rival parties have equal rights

of management and there was rival claim made for management of the suit temple, a scheme can be framed.

In the instant case, admittedly the final decree was passed on 2.7.1982 and as against that, no appeal has been filed and it has become final.

The concurrent finding rendered by both the courts against the appellant is supported by acceptable evidence and convincing reasons and we do

not find any infirmity to interfere with the same. The learned counsel for the appellant has not advanced any argument before us challenging the said

concurrent finding as already stated. For all these reasons and in view of the findings on the questions referred above, we have no hesitation in

holding that the appellant has not made out any case for interfering with the concurrent finding of the courts below and as such the appeal deserves

to be dismissed. In the result, the appeal fails and stands dismissed. However, there will be no order as to costs.