HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY
C.R.P.Nos.5784 of 2010 and 394 of 2012
20-3-2012
Sri Bhaktanjaneya Swamy Vari Devalayam Trust, Tekulapalli,Khammam District,
represented by its Chairman Sri Bondili Dharma Singh
1) To whom so ever it may concern 2) Vakadani Ramanarayana and others
Counsel for petitioner : Sri Vedula Venkataramana, Senior Counsel
Sri V.L.N. Gopalakrishna Murthy
Counsel for respondent No.1 : --
Counsel for respondent No.2 : Sri M.V.S. Suresh Kumar
Counsel for respondent No.3 : --
Counsel for respondent No.4 : Sri G.M. Mohiuddin
Counsel for respondent No.5 : Sri A.S.C. Bose
? CASES REFERRED:
1. AIR 2000 S.C. 1802
2. AIR 1981 A.P. 340 (DB)
3. AIR 1989 A.P. 68 (DB)
4. AIR 1999 A.P. 11
5. AIR 1966 S.C. 653
6. AIR 1974 S.C. 1084
7. AIR 1957 S.C. 797
8. AIR 1969 S.C. 823
COMMON JUDGMENT:
As the subject matter of the dispute is common, both these Civil Revision
Petitions are heard and being disposed of together.
For convenience, the parties are referred as they are arrayed in
C.R.P.No.5784/2010.
C.R.P.No.5784/2010, arises out of order dated 31-8-2010 in
T.O.P.No.193/2007 whereby the learned District Judge, Khammam dismissed the said
T.O.P. filed by the petitioner under Section 34 of the Indian Trusts Act, 1882
(for short "the Trusts Act") seeking permission to proceed with the sale of the
petition schedule property. C.R.P.No.394/2012 is filed by respondent No.2
assailing the findings rendered by the learned District Judge in the above
mentioned O.P. with respect to the nature of the Trust in question and the
petition schedule property.
The facts leading to the filing of this Civil Revision Petition are
briefly stated hereunder:
A person by name Kannaiah Lal Singh and Smt. Bondali Krishna Bai, the
widow late Mohan Singh, who was the brother of Kannaiah Lal Singh, for attaining
salvation ('Satgathulu') jointly executed Ex.A-1-gift deed on 16-6-1966, which
was registered as document No.3281/1966, in respect of an extent of Hc.1-31,
equivalent to Ac.3-10 guntas, comprised in Sy.No.504 of Velugumatla village,
Khammam District (petition schedule property), jointly owned by the said two
persons. It is recited in the said gift deed that the petition schedule
property cannot be encumbered in any manner in favour of third parties except by
way of lease and that from out of the income derived from the petition schedule
property, the deity-Bhakthanjaneya Swamy, shall be worshipped on every Saturday
and after defraying towards the land cist, the balance income shall be paid to
the archakas of the deity, under receipts. The gift deed also contains a
covenant as to how succession with regard to the Trustees shall take place. It
is further recited in the gift deed that if any differences arise during the
lifetime of the two donors, on the application filed by either of the two
persons, the Endowment Board shall take over the petition schedule property and
manage the same.
On 22-5-2006, a new Trust was registered in the name of "Sri Bhakthanjaneya
Swami Vari Devalayam Abhivruddi & Nirvahana Trust Board" (for short "the
petitioner-Trust Board"), comprising the legal heirs of the donors and some
others selected by them. The petitioner-Trust Board passed an unanimous
resolution on 9-7-2006 for reconstruction of the dilapidated temple and
providing better facilities to the devotees out of the income from the petition
schedule property. On 10-7-2006, the petitioner-Trust Board entered into an
agreement with one Telaprolu Ramaprasad, who has got himself impleaded as
respondent No.4 in the C.R.P.No.5784/2010, whereunder it was agreed to sell the
petition schedule property to him for a sum of Rs.1,25,00,000/-. In pursuance
of the said agreement of sale, respondent No.4 has deposited a sum of
Rs.3,00,000/- as part sale consideration in Karur Vysya Bank, Khammam and the
said amount is lying therein.
On 23-1-2007, the petitioner-Trust Board filed the above mentioned T.O.P. in the
Court of the learned Principal District Judge, Khammam, under Section 34 of the
Trusts Act seeking permission to sell the petition schedule property. The main
grounds on which the permission to sell the petition schedule property was
sought were that the petition schedule property is a dry and barren land and the
same is not fetching any income; that as the petitioner-Trust Board is not
collecting any offerings, donations and gifts from the devotees, it is not
possible to meet the expenses for maintaining the Temple and its development and
for performing nitya poojas, naivaidyam and other rituals to the deity; that
they intend to reconstruct the Temple which is in a dilapidated condition and
improve the facilities; and that the amount will be spent towards meeting the
expenditure towards salaries to the archakas and the sweeper and expenses
towards nitya sevas, poojas etc.
The learned District Judge ordered publication of notice in the T.O.P. in two
daily newspapers on 13-2-2007 calling for objections from the general public.
After publication of the said notice, the Assistant Commissioner, Endowments,
Khammam, registered the property under Section 47 of the A.P. Charitable and
Hindu Religious Institutions and Endowments Act, 1987 (for short "the Endowments
Act"). By order dated 1-3-2007, the Assistant Commissioner appointed a Single
Trustee. The said order was challenged by the petitioner-Trust Board before the
Regional Joint Commissioner, Multi Zone-III, Hyderabad and by order dated 21-8-
2008 the latter has set-aside the appointment of the Single Trustee. Subsequent
thereto, the Commissioner, Endowments Department, appointed an Executive Officer
to the Temple on the recommendations of the Assistant Commissioner. This order
was questioned by the petitioner-Trust Board in W.P.No.23179/2008 and this Court
by order dated 23-10-2008 suspended the appointment of the Executive Officer
subject to the condition that the petition schedule property shall not be
alienated to third parties. By order dated 18-3-2009, this Court permitted the
petitioner-Trust Board to deposit the balance sale consideration paid by
respondent No.4 to the credit of the T.O.P.No.193/2007 and the same was
accordingly deposited.
After a detailed hearing of the case, the learned District Judge, Khammam, as
noted supra, disposed of the above mentioned T.O.P. by order dated 31-8-2010
whereby he has declined permission to the petitioner-Trust Board to sell the
petition schedule property. The learned District Judge however rendered
findings that the petition schedule property belongs to a private Trust; that
the gift under Ex.A-1 was a conditional one to the Temple for performing
Saturday poojas and that the petition schedule property does not vest with the
Endowments Department. As noted above, feeling aggrieved to the extent of
rejection of permission to sell the petition schedule property, the petitioner-
Trust Board filed C.R.P.No.5784/2010 and assailing the findings rendered by the
learned District Judge with respect to the nature of the Trust and the petition
schedule property, respondent No.2 filed C.R.P.No.394/2012, both under Article
227 of the Constitution of India.
Extensive arguments have been advanced by Sri Vedula Venkataramana,
learned Senior Counsel and Sri V.L.N. Gopalakrishna Murthy, learned counsel
appearing for the petitioner in C.R.P.No.5784/2010 who is respondent No.1 in
C.R.P.No.394/2012 and Sri M.V.S. Suresh Kumar, learned counsel appearing for
respondent No.2 in C.R.P.No.5784/2010 who is the petitioner in
C.R.P.No.394/2012. Sri G.M. Mohiuddin, learned counsel for respondent No.4 and
Sri A.S.C. Bose, learned counsel appearing for respondent No.5-Board of Trustees
constituted by the Commissioner of Endowments, also made their submissions.
Sri Vedula Venkataramana, the learned Senior Counsel, submitted that the
Temple and the Trust in question are two different entities; that the Temple was
in existence much prior to the coming into existence of the Trust under Ex.A-1-
gift deed and that Ex.A-1-gift deed does not divest title of the donors over the
petition schedule property. He further argued that even if there is a specific
endowment, the right of the contesting respondent is only to approach the
competent authorities under the Endowments Act and that the scope of Section 34
of the Trusts Act being narrow and the jurisdiction of the District Court being
summary, neither the contesting respondent is entitled to raise the disputed
questions nor the District Court can embark upon adjudication of such questions
without confining itself to the question as to whether under the circumstances,
the request of the petitioner-Trust Board for granting permission to sell the
petition schedule property was reasonable and justifiable or not? The learned
Senior Counsel argued that under Section 34 of the Trusts Act, the jurisdiction
of the District Court is advisory and not adjudicatory and that the same cannot
be equated with the jurisdiction of the Civil Court under Section 92 of the Code
of Civil Procedure, 1908 whereunder the Civil Court has jurisdiction to frame a
scheme. In support of his submissions, the learned Senior Counsel relied upon
the Judgments of the Supreme Court in Trustees of HEH the Nizam's Pilgrimage
Money Trust, Hyderabad Vs. Commissioner of Income-tax1, Sahebzadi Amina Marzia
Vs. Syed Mohd. Hussain and others2, Prince Muffakham Jah Bahadur Vs. H.E.H.
Nawab Mir Barkat Ali Khan Bahadur Price Mukarram Jah3, Hasan Bin Mubarak Vs.
Chief Judge, City Civil Court, Hyderabad4 and M.R. Goda Rao Sahib Vs. The State
of Madras5.
Pursuing the same line of argument, Sri V.L.N. Gopalakrishna Murthy,
learned counsel who also appeared for the petitioner-Trust Board, submitted that
the learned District Judge has committed a serious error in far too exceeding
his jurisdiction under Section 34 of the Trusts Act. The donors under the
Trust, argued the learned counsel, are the beneficiaries themselves as the
object of the Trust was to attain salvation ('Satgathulu') in furtherance of
which a provision was made for the purpose of Saturday poojas and payment to
archakas for performing such poojas. The learned counsel further argued that as
Ex.A-1-gift deed prohibited transfer of the petition schedule property in any
manner other than by way of lease and as the said property cannot be put to
agricultural use as the same has become barren and uncultivable, the object of
the Trust itself got frustrated and thereby the provisions of Section 83 of the
Trusts Act got attracted. The learned counsel has canvassed the theory of
"resultant Trust" with the frustration of the object of the Trust created under
Ex.A-1 and consequently the vesting of the property absolutely in the legal
heirs of the donors under the said provision. The learned counsel placed
reliance on the Judgment of the Supreme Court in State of Uttar Pradesh Vs.
Bansi Dhar6 in support of his submissions. The learned counsel also submitted
that the Civil Revision Petition filed by respondent No.2 suffers from laches
and that it is a pure afterthought as it was filed at the stage of arguments of
C.R.P.No.5784/2010.
Opposing the above submissions, Sri M.V.S. Suresh Kumar, learned counsel
for respondent No.2, submitted that with the registration of the petition
schedule property under Section 43 of the Endowments Act, it has become a
religious endowment, as a consequence of which the subject matter falls outside
the scope of the provisions of the Trusts Act and that under Section 46(3) of
the Endowments Act, until the contrary is established, it shall be presumed that
all the particulars entered in the register maintained under Section 43 thereof
are genuine. The learned counsel placed reliance on Section 1 of the Trusts Act
in support of his submission. He has further submitted that there is a complete
dedication in favour of the deity under Ex.A-1-gift deed and that therefore
there can be no question of the petition schedule property being dealt with by
the Trustees in contravention of the specific recitals of Ex.A-1-gift deed. The
learned counsel further submitted that as the property has become an endowment
property, it is governed by the provisions of the Endowments Act and thereby the
learned District Judge is divested of the jurisdiction and that the property
needs to be dealt with in accordance with the various provisions of the
Endowments Act alone. The learned counsel further argued that the learned
District Judge has completely misinterpreted the recitals of Ex.A-1-gift deed
and also committed a serious error in holding that the petition schedule
property belongs to a private Trust. He has also argued that the petition
schedule property which is worth more than Rs.20 crores is sought to be sold for
a pittance i.e., for Rs.1,25,00,000/- crores and thereby public interest is
sought to be seriously jeopardized. The learned counsel placed reliance on the
Judgment of the Supreme Court in Menakuru Dasaratharami Reddi Vs. Duddukudru
Subba Rao7 in support of his submissions. He has also sought to justify the
delayed filing of the revision petition by respondent No.2.
Before dealing with the various submissions advanced by the learned
counsel on merits, the objection to the delayed filing of C.R.P.No.394/2012
needs to be considered. It is the submission of the learned counsel for the
parties that filing of the said C.R.P. is a pure afterthought and that the same
suffers from laches. The learned counsel for respondent No.2 submitted that his
client has given convincing reasons for not filing the C.R.P. earlier. He has
drawn the Court's attention to para-2 of the affidavit filed in
C.R.P.M.P.No.552/2012, wherein it is averred, as under :
"At the outset, it is humbly submitted that questioning the impugned order
dismissing the petition filed under Section 34 of the Indian Trusts Act, the 1st
respondent herein filed C.R.P.No.5784/2010 and the same is pending admission
before this Hon'ble Court. As the matter is likely to be listed in due course,
while going through the order of the trial court, my counsel stated that though
the T.O.P.No.193/2007 filed by the 1st respondent herein was dismissed by the
District Judge, Khammam by order dated 31-8-2010, certain findings have been
rendered by the trial court which are erroneous and that it is advisable to file
an independent revision petition questioning the findings of the learned Judge
to the extent of holding the subject property as constituting a private trust.
It is submitted that the requirement to file a separate revision petition arose
only when my counsel in the High Court was studying the matter so as to get
ready with the hearing C.R.P.No.5784/2010. It is submitted that the matter
involves grant of permission to alienate property endowed to the deity of a
temple in Khammam and the 1st respondent in O.P.No.193/2007 was shown to be "to
whomsoever it may concern". It is humbly submitted that I got impleaded in
T.O.P.No.193/2007 on devotee of the temple when a public notification was
issued. It is humbly submitted that as it is a matter concerning the public,
this Hon'ble Court may be pleased to consider the circumstances that led me in
approaching this Hon'ble Court at this point of time by way of this independent
revision petition. I submit that the delay in approaching this Hon'ble Court is
neither willful nor wanton but bonafide."
There is no gainsaying that C.R.P.No.394/2012 was filed when C.R.P.No.5784/2010
was ripe for hearing. Even though no limitation is prescribed for filing a
revision under Article 227 of the Condition, still a party cannot be permitted
to invoke this remedy at his leisure. In this case, the T.O.P. filed by the
petitioner was dismissed by the learned District Judge. However, respondent
No.2 felt aggrieved by certain findings rendered by the learned Judge while
dismissing the T.O.P. The purpose of respondent No.2 in filing the C.R.P. is to
question those findings. Since the proceedings before this Court being in the
nature of revision, he cannot obviously attack those findings on the analogy of
a respondent in an appeal by invoking the provisions of Order XLI Rule 22 of the
Code without independently filing a revision. Obviously respondent No.2 did not
feel the necessity of filing a separate C.R.P. as the T.O.P. was dismissed
without any relief being granted to the petitioner, till he was advised by his
Counsel while preparing for C.R.P.No.5784/2010. From these facts, it is
reasonable to presume that the belated filing of C.R.P.No.394/2012 by respondent
No.2 is for bonafide reasons. At any rate, even in the absence of the revision
petition filed by respondent No.2, this Court while exercising its supervisory
jurisdiction under Article 227 of the Constitution, is not precluded from
examining the correctness or otherwise of the findings rendered by the learned
District Judge and render its opinion to completely and effectively adjudicate
the issues involved in this case. Hence, the objection raised by the petitioner
is rejected.
In order to consider the various submissions advanced by the learned
counsel for the parties, it is necessary to consider the width and ambit of
Section 34 of the Trusts Act. The heading of the said provision reads : "Right
to apply to Court for opinion in management of trust property." Under this
provision, any trustee may, without instituting a suit, apply by petition to a
Principal Civil Court of original jurisdiction for its opinion, advice or
direction on any presented questions respecting the management or administration
of the trust property other than questions of detail, difficulty or importance,
not proper in the opinion of the Court for summary disposal.
This provision fell for consideration of the Supreme Court in many a case. One
such case is the Official Trustee, West Bengal Vs. Cachindra Nath Chatterjee8
wherein the Apex Court, while dealing with the power of the Court to give
opinion as to whether the buildings require repairs and whether the amounts
would be properly used for the purpose of repairing the buildings, held that
under Section 34 of the Trusts Act, the Court could have given opinion, advice
or direction on any presented questions respecting the management or
administration of the Trust property and not on any other matters; that the
jurisdiction of the Court under Section 34 is limited jurisdiction under which
it has not been conferred with the over all jurisdiction in matters arising
under a trust deed; that the statute has prescribed what the Court can do and
inferentially what it cannot do and that from the fact that the Court has been
conferred power to grant only certain reliefs, it follows as a matter of law
that the Court has been prohibited from granting any other relief. The Apex
Court further held that the jurisdiction of the Court is circumscribed by the
provisions of Section 34 of the Trusts Act and that it has no jurisdiction to
pronounce on the pleas put forward by the settlor. On the strength of the said
ratio, the Supreme Court held that on facts, the said case did not come within
the scope of Section 34 of the Trusts Act and that the relief granted by the
learned Judge was beyond his competence under the said provision.
A perusal of the order of the lower Court, in the present case, would show
that it has framed a solitary point, viz., whether the petitioner-Trust Board is
competent to seek permission of the court to sell the schedule lands and whether
such permission can be accorded? However, the lower Court has expanded the
scope of the inquiry into the petition as evident from para-13 of its order
wherein it has embarked upon the question whether the petition schedule property
is a private Trust or a public Trust and if it is a private Trust whether the
petitioner-Trust Board being the trustee, can be permitted to sell the petition
schedule property for securing the objects of the Trust created by its
predecessors-in-title. The lower Court thereupon proceeded to consider various
covenants of Ex.A-1-gift deed and adjudicated on the nature of endowment while
holding that the property under Ex.A-1-gift deed is not endowed for the purpose
of any service or charity of public nature and that the gift deed has been
executed for the religious benefit of the executants and their family members by
performing poojas on every Saturday. The lower Court further held that the
petition schedule property does not vest with the Endowments Department and that
it was a conditional gift made in favour of the presiding deity for the
salvation of the executants of Ex.A-1-gift deed and their descendents. A
further finding was rendered that since the property is a private Trust, the
provisions of the Trusts Act are attracted. The lower Court however declined to
grant permission to sell the plaint schedule property on the ground that the
same is contrary to the object for which the Trust in question has been created.
As rightly submitted by the learned Senior Counsel, the jurisdiction of
the District Court under Section 34 of the Trusts Act is advisory and not
adjudicatory. The Judgment of the Apex Court in Official Trustee (1-supra)
leaves no room for doubt on this aspect. The limited jurisdiction of the lower
Court is to hold a summary inquiry for the purpose of giving opinion, advice or
direction on any presented questions respecting the management or administration
of the Trust property. Such questions do not include the questions of details,
difficulty or importance which cannot be disposed of summarily. In short, the
questions that fall within the ambit of Section 34 of the Trusts Act in the
present case are (i) whether as per the terms of Ex.A-1-gift deed, alienation of
the petition schedule property was permissible? (ii) if not, in order to sustain
the objects for which the Trust was created, the terms of Ex.A-1-gift deed have
to be deviated from? and (iii) if so, to what extent such deviation is
permissible? While giving its opinion, advice or direction on these aspects, if
the Court felt that those questions cannot be decided in a summary manner, it
should refrain from granting any relief under Section 34 of the Trusts Act.
The facts of the case created a situation where the case is taken out of
the jurisdiction of the District Court for more reasons than one. It is an
admitted fact that the petition schedule property was registered as a religious
endowment under Section 43 of the Endowments Act, vide R.Dis.No.B/349/2007,
dated 6-2-2007 of the Assistant Commissioner, Endowments Department. As noted
above, under Section 46(3) of the Endowments Act, until the contrary is
established, it shall be presumed that all the particulars entered in the
register maintained under Section 43 thereof are genuine. The 'Savings' clause
in Section 1 of the Trusts Act saved public or private religious or charitable
endowments from being affected by the provisions of the Trusts Act. Once the
property is registered under Section 43 of the Endowments Act, it becomes the
religious endowment and consequently it falls outside the scope of the Trusts
Act. The remedy left to the aggrieved person is to apply to the Endowments
Tribunal for modification or annulment of the entry and where such application
relates to the right claimed by the applicant in support of such entry or
omission, the same shall be decided as if it were a dispute within the meaning
of Section 87 of the Endowments Act.
Unless the petition schedule property is declared as a private Trust and not a
religious endowment, the District Court has no jurisdiction to render its advice
or opinion or give any direction on the questions raised before it. Both the
learned counsel appearing for the petitioner submitted that as the Trust is
created under Ex.A-1-gift deed, the contesting respondent who is claiming to
espouse the public cause, ought to have approached the Endowments Tribunal under
Section 87 of the Endowments Act and that till a declaration is obtained that
the property covered by Ex.A-1-gift deed is a religious endowment, he cannot
raise any objection before the District Court under the provisions of the Trusts
Act.
This submission, in my considered opinion, is without any merit. From the
provisions of the Endowments Act discussed above, with the registration of the
petition schedule property as the endowment property, it is not possible to
treat the same as the Trust property. Until the contrary is established, the
entry relating to the property in question, in the register maintained under
Section 43 of the Endowments Act, shall be treated as genuine. If the
petitioner or any of its members is aggrieved by the registration of the
petition schedule property under Section 43 of the Endowments Act, it is for
them to approach the Endowments Tribunal under Section 45 of the Endowments Act
for annulment of the entry. Till an order on such application is made by the
Endowments Tribunal, the petition schedule property cannot be dealt with under
the provisions of the Trusts Act. The learned District Judge has committed a
serious error in not examining these aspects and instead delving into various
aspects as noted above which completely fall outside the scope of Section 34 of
the Trusts Act.
With regard to the submission of Sri V.L.N. Gopalakrishna Murthy, on Section 83
of the Trusts Act, having regard to the facts pleaded, the questions whether the
Trust was created for the benefit of the donors and their descendents or of the
deity and whether Ex.A-1 is rendered incapable of being executed and thereby a
"resultant Trust" has got created for the benefit of the creator of the Trust or
their legal representatives, are issues which fall completely outside the narrow
confines of Section 34 of the Trusts Act. These questions, which will be
germane for consideration after determination of the questions by the Endowments
Tribunal on the legality or otherwise of the entry in the register maintained
under Section 43 of the Endowments Act, can only be decided by the Civil Court
in a regularly constituted suit.
In the light of the above findings, it has become unnecessary for this Court to
deal with the various other contentions raised and the Judgments cited in
support thereof, by the learned counsel for the parties. Since this court is of
the opinion that the lower Court, instead of disposing of the T.O.P. through
adjudicatory process and rendering various findings in the process for and
against the petitioner-Trust, ought to have simply dismissed the same by
relegating the parties to the remedy under the provisions of the Endowments Act.
On the analysis as above, while not interfering with the rejection of the T.O.P.
by the lower Court, the findings rendered by it are declared to have no effect
in law and that they do not bind the parties. The parties are left free to
avail appropriate remedies in the light of the observations made and the
findings rendered hereinabove. Respondent No.4 shall be free to make an
appropriate application in W.P.No.23179/2008 for taking return of the deposit of
the purported sale consideration made to the credit of T.O.P.No.197/2007.
In the result, C.R.P.No.5784/2010 is dismissed and C.R.P.No.394/2012 is disposed
of.
As a sequel, C.R.P.M.P.No.7708/2010 in C.R.P.No.5784/2010 and
C.R.P.M.P.No.552/2012 in C.R.P.No.394/2012 are disposed of as infructuous.
________________________
Justice C.V. Nagarjuna Reddy
Date : 20-3-2012
