Yadhava Ilaignar Sangam vs N.R.M. Padmanaba Konar and N. Anandan

R. Mala, J.—This Second appeal has been filed to set aside the judgment and decree dated 04.11.1997 made in A.S. No. 71 of 1995 on the file of the learned Subordinate Judge, Karur, reversing the judgment and decree dated 31.01.1995 made in O.S. No. 164 of 1991 on the file of the Principal District Munsif, Karur.

The averments in the plaint filed by the plaintiffs are as follows:

The plaintiff is an Association duly registered under the Society''s Registration Act 1978. The suit property is belonging to the Community of Yadhavas and it is used for religious and charitable purposes. It is a cholutry used for religious and charitable purposes, of letting it for marriages, conducting samaradhanai on certain specified occasions in a year. By a registered document dated 23.09.1915, the elders in the community have reiterated the religious and charitable nature and for the property and also agreed for the proper management and protection of the same. It is meant for the benefit of the public and the plaint schedule property is a public Trust.

The defendants belong to the Yadavas Community and they are not the owners of the schedule property and they have no personal rights whatsoever in the same and the defendants are close associates and relatives. The defendants colluding together, with a common object of defeating the public interest, rights and to deface the religious and charitable character of the plaint schedule property, are now attempting to make constructions, alterations etc., in the plaint schedule property with the common object of annexing the property for their personal use. The defendants are influenced persons and hence, the plaintiff is constrained to come forward with the suit for declaration declaring the plaint schedule property is of religious and charitable nature and consequently, permanent injunction not to make any constructions or alterations in the plaint schedule property and hence, he prayed for a decree.

The gist and essence of the written statement filed by the 1st defendant are as follows:

There is no trust called as "Community of Yadhavas". The alleged registered document dated 23.09.1915 does not create any religious and charitable purposes. The 1st plaintiff''s father one Muthusamy Konar is a staunch devotee of Kalyana Venkataramana Swamy temple which is situate at Thanthonimalai, Karur Taluk. He founded a Kattalai as early as in 1920 itself. Even the document creates only a partial dedication in favour of 1st defendant''s ancestors. The 1st defendant has to perform special poojas at the time of ''Rahthothasavam'' performed in the month of Purattasi and also during the month of Massi at Magam Nakshathiram of every Tamil year. During those days, special poojas is used to perform to the Deity and parivattam would be tied on the head of the presiding Deity and breaking of coconuts and the distribution of Prasadham to the devotees would be performed at the time of performance of Kattalai and there would be Annadhanam for 1000 persons on that day and next succeeding day.

It was founded by Muthusamy Konar who was continuously performing the said Kattalai till his demise in the year 1966 and thereafter his son Kulandaivelu took up the reigns of administration performing the kattalai till the year 1976, in which he also died and thereafter his brother, the 1st defendant took up the reigns of administration and is looking after its affairs till date for the performance of the said Kattalai. Prior to him ancestors used to pay some amounts to the Devasthanam as was fixed by the Devasthanam authorities. From time immemorial, there is an usage and custom to provide Thulasi every day to the presiding Deity Kalyana Venkatramana Swamy Temple. The performance of Annadhanam prior to 1924 was performed in the choultry belonging to third parties at the instance of Muthusamy. The construction and completion of the choultry intended for the performace of Kattalai was completed by 1930 by Muthusamy who was not only the founder of Kattalai, but also the choultry. The deity Kalyana Venkatramana Swamy during the Rahthothsavam would be stopped in front of the choultry for the performance of special poojas. Hence, the said choultry and Nandavanam are the private trust properties of this defendant and his family members.

The defendant is not aware of the Plaintiff''s Sangam and its activities. It has no connection neither with the choultry nor with the Nandavanam. This defendant from his own pocket money and by contribution of well-wishers is making arrangements to extend the constructed area and to have better facilities for the better income from the choultry and also for the aforesaid purposes during the aforesaid months. The Nandavanam and the choultry are dedicated only to a particular section of Yadavas and not to the Yadhava in general. All the Yadhavas are not entitled to as of right to enter in to the choultry or Nandavanam, but only at the permission of this defendant after praying the due charges any Yadhavas may for the choultry for rent. The plaintiffs are not the competent persons to question the rights of this defendant and the choultry. The construction of the choultry is over. This 1st defendant as the Managing Trustee from and out of his own funds has spent about Rs. 3 lakhs and has modernised the choultry for giving better amenities to the people who occupy free of cost. This 1st defendant is not collecting any fee, rent or any amount in any other from anybody as the choultry is govern only to the community people. Sparingly, when there is no offer or request from the community people, the choultry is being given to the other community people on nominal rent. The 1st defendant as Managing Trustee is maintaining the choultry, accounts etc., and hence, he prayed for the dismissal of the suit.

The gist and essence of the written statement filed by the 2nd defendant''s, who adopted the written statement of the 1st defendant, are as follows:

The great grand father of this defendant viz., Meenakshi Konar and the father of the 1st defendant and 8 others are entitled to the suit property and the attached service to Lord Kalyana Venkartaanaswamy and the service has been done only by the successors-in-interest of the said 10 Yadhavas pursuant to the registered agreement dated 23.09.1915. The defendants are at present representing the interest of the said families and doing service to the Lord Venkataramanaswamy. It is not a public trust, but it is only a private trust in which the plaintiff has no interest or right whatsoever in the suit property an its management. The 2nd defendant is the Kattalaidarar and is also working for the improvement of the suit property on behalf of the said 10 families along with the 1st defendant.

Improving and extending work of the suit choultry belonging to one said 10 families are going on in the interest of the said families by the collection of funds from the said families. Instead of appreciating the services of the defendants, the so called President and Secretary with a view to create false and novel right in the suit property, this suit is filed with absolutely false and untenable allegations. The possession and management alleged by the plaintiffs are false and there is no cause of action for the suit and hence, he prayed for the dismissal of the suit.

The learned trial Judge, after considering the averments both in the plaintiff and written statements and considering the arguments advanced by both the counsel framed 3 issues and considering the oral evidence of P.Ws.1 to 4 and D.Ws.1 and 2, Exs.A1 to 18 and Exs.B1 to 19 and decreed the suit as prayed for by the plaintiff with cost. Aggrieved over against the said judgment and decree, the defendants have preferred an appeal in A.S. No. 71 of 1995 before the Subordinate Judge, Karur, where the same was allowed and set aside the judgment and decree of the trial Court and dismissed the suit. Against the said judgment and decree, the defendants have preferred this present second appeal.

At the time of admission, this Court framed the following substantial questions of law:

a. When the character of the suit property as a public community is specifically admitted by the first defendant and D.W-1 categorically, whether the learned Subordinate Judge is right in holding that there is no evidence to prove the suit choultry is a public trust created for the benefit of Yadhava Community?

b. Having regard to the voluminous documents filed by the plaintiffs and the oral evidence of plaintiff witnesses, is not the finding of the learned Subordinate Judge with regard to the character of the suit property perverse?

c. Is not the present suit filed by the plaintiff society maintainable especially when the members of society are all the members of Yadhava community?

d. When the first defendant himself filed application for declaration that the suit choultry and nandavanam are specific endowment belonging to the Yadhava community and that the management vest with his family, is not the first defandant estopped from contesting the suit on the ground that the suit property is his private family property?

The learned Counsel appearing for the appellant/plaintiff would submit that as per Ex.A4, a Trust has been created only for the benefit of the Yadhavas community and it is a cholutry used for religious and charitable purposes, of letting it for marriages, conducting samaradhanai on certain specified occasions and in the previous suit in O.S. No. 140 of 1940, wherein it was decided that the trust is belonging to Neikkara Yadhavas community and against that judgment appeal has been preferred in A.S. No. 29 of 1942 that has been confirmed which was evidenced by Exs.A5 to 8.

He would further submit that even though the choultry has been constructed for performing Mandagappadi and special poojas and he also filed a document in Ex.A11, which shows that the choultry has been constructed only for Neikkara Yadhava public and hence the appellant has registered as Yadhavas Ilaignar Sangam and the respondents herein have taking steps to make construction and alterations and hence, the plaintiffs are constrained the suit for declaration that the suit property is religious and charitable nature and for injunction and he would further submit that the trial Court has considered all the aspects in proper perspective and come to a correct conclusion, but the 1st appellate court has not considered the same and thus, he prayed for the allowing of the appeal.

The learned Counsel appearing for the respondents would submit that the documents in Exs.A5 to 8 has clearly proved that the nandavanam mentioned in Ex.A4 is only for the benefit of Neikkara Yadhava and it was created only for them and moreover, the prayer of the plaintiff is to declare the choultry is religious and charitable nature and hence, the civil court has no jurisdiction under the provisions of Section 63 of Hindu Religions and Endowments Act, 1959. The learned Counsel appearing for the respondent would cull out the portion of the evidence of P.W.1 and submit that P.W.1 has fairly conceded in his cross examination that he has not filed any document to show that the collection made from the Yadhavas Community for construction and hence, the 1st appellate Court has considered all the aspects in a proper perspective and come to the correct conclusion and thus, he prayed for the disposal of the second appeal.

Issue C and D:

The appellant as plaintiff has filed a suit for declaration that the suit property is religious and charitable nature and for injunction not to make construction. The contention raised by the respondents is that the suit property is dedicated by 10 people of Neikkara Yadhavas community only for the Neikkara Yadhavas people and a dispute has been arisen in the matter and it was decided even in the year 1940 that the nandavanam is belonging to the said Neikkara Yadhava community people that has been evidenced by Ex.A5 to 8 and hence the plaintiff has come forward with the suit for declaration that the property is religious and charitable nature that to be decided only by the Joint Commissioner or Deputy Commissioner as per Section 63 of the Hindu Religious and Charitable Endowments Act, 1959 and hence, the suit itself is not maintainable. It is appropriate to consider the Section 63 of the Hindu Religious and Charitable Endowments Act, 1959, which read as follows:

Joint Commissioner or Deputy Commissioner to decide certain disputes and matters. - Subject to the rights of suit or appeal hereinafter provided, the Joint Commissioner or the Deputy Commissioner, as the case may be, shall have power to inquire into and decide the following disputes and matters:

(a) whether an institution is a religious institution;

(b)whether trustee holds or held office as a hereditary trustee;

(c) whether any property or money is a religious endowment;

(d) whether any property or money is a specific endowment;

(d) whether any property or money is a specific endowment;

(e) whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any religious institution; and what the established usage of a religious institution is in regard to any other matter;

(f) whether any institution or endowment is wholly or partly of a religious or secular character; and whether any property or money has been given wholly or partly for religious or secular uses; and

(g) where any property or money has been given for the support of an institution which is partly of a religious and partly of a secular character, or the performance of any service or charity connected with such an institution or the performance of a charity which is partly of a religious and partly of a secular character or where any property or money given is appropriated partly to religious and partly to secular uses, as to what portion of such property or money shall be allocated to religious uses.

As per Section 63 of the said Act, the Joint Commissioner or the Deputy Commissioner only is the competent person to decide whether the suit property is belonging to religious endowment. Even though, the plea has not been raised before the trial Court, now during the argument, the learned Counsel appearing for the respondent would submit that the suit itself is not maintainable since the prayer is to declare the suit property is religious and charitable nature. Considering the said argument, I am of the view that since there is a special enactment, u/s 63 of the Hindu Religious and Charitable Endowments Acts, 1959, only the Joint Commissioner and Deputy Commissioner of Hindu Religious and Charitable Endowments are having the jurisdiction to decide the fact and the suit is not maintainable.

Besides this, in the previous proceedings as per Ex.A5 to A8, the property - nandavanam mentioned in Ex.A4 is declared that the same is belonging to Neikkara Yadhavas community and Ex.A4 agreement has been entered on 23.09.1915. In that it is stated that there is a proposal for construction of choultry for performing poojas to Kalyanavenkatramana Perumal in Thanthonimalai at Karur and to perform the kattalai. Even in the year 1940, one Seenivasanarasinga perumal Konar representatives for Neikkara Yadhavars of Trichirapalli, Coimbatore and Salem Districts filed a suit in O.S. No. 140 of 1940 and in that it was declared that the suit property is belonging to Neikkara Yadhavas. While considering the evidence of P.Ws.1 and 2 and D.W.1, it has clearly stated that the property has been used for the community not for any private persons.

It is appropriate to consider the arguments advanced by the learned Counsel appearing for the appellant, who cull out the portion of P.W.1''s oral evidence. P.W.1 in his evidence fairly conceded that he has not enjoyed the property and it is enjoyed and administered on behalf of Neikkara Yadavas community.

In the above stated circumstances, I am of the view that the 1st appellate Court has considered all these aspects in a proper perspective. The 1st appellate court, in his judgment in paragraph No. 13, the learned Judge stated what is the objects of the appellant and the same has been incorporated and there is no object for the maintenance of the charity. As per the version of the respondent that the choultry has been used for private trust, but, it is belonging to Neikkara Yadhavars community people, not for the Yadhavas in general.

At this juncture, it is appropriate to consider the documents in Exs.A9 and 10, accounts and balance sheet of the every year and Ex.A11, the invitation of opening of Marriage hall constructed by Karur Neikkara Yadhavar Ramamanthiram Sathiram, Thanthonri malai for the people of Yadhavas. Hence, it is clear that as per the earlier proceedings, it was stated that the property is belonging to only Neikkara Yadhavas community not for Yadhavas in general.

The learned Counsel appearing for the appellant would contend that even though, they sought for a relief to declare the properties is religious and charitable nature, now they sought for a relief for to declare the properties is belonging to Neikkara Yadhavas community, but the said argument does not merit acceptance, since the plaintiff must prove his case. As already discussed in the earlier paragraphs that the suit itself is not maintainable as per the Section 63 of Hindu Religious and Charitable Endowments Act, 1959. Furthermore, there is no evidence to show that the property has been used personally by the respondent and they are not maintaining same.

Hence, I am of the opinion that the 1st appellate Court has considered all the aspects and come to the conclusion that the appellant herein is not entitled declaration as prayed in the plaint. Here, the suit has been filed only by Yadhavar Ilaignar Sangam on behalf of the entire Yadhavas people and not for the Neikkara Yadhavas community. In such circumstances, I do not find any merits in the second appeal, since the present suit is filed by the plaintiff society and they are not filing the suit neither for entire Yadhavas community nor for Neikkara Yadhavas community and hence, the issues C and D are answered against the appellant.

Issues A and B:

As already discussed, as per the Section 63 of the Act, the Joint Commissioner or the Deputy Commissioner only is the competent person to decide whether the suit property is belonging to religious endowment. But, here the appellant without approaching the Joint Commissioner or the Deputy Commissioner, the plaintiff directly approached the civil forum. As already stated, stated, the property-Nandanam mentioned in Ex.A4 has been declared that it is belonging to Neikkara Yadhavas Community people. Even though D.W.1 has categorically admitted in chief and cross examination that they are maintaining the property only for the trust not as a private person.

In such circumstances, I am of the considered view that the 1st appellate court has considered all the aspects in a proper perspective and hence, the appellant is not entitled any relief in the suit. Furthermore, construction has already been made and the same has opened on 03.06.1991 as per Ex.A11 and the functions have been conducting and hence, I do not find any merits in the second appeal and the issues A and B are answered accordingly and the second appeal is deserved to be dismissed.

In fine, the second appeal is dismissed and the judgment and decree dated 04.11.1997 made in A.S. No. 71 of 1995 on the file of the learned Subordinate Judge, Karur is hereby confirmed.