Full Judgment Text
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CASE NO.:
Appeal (civil) 9493 of 1995
PETITIONER:
SRI SINGAM CHETTY ATTENDROOLOO & ORS.
Vs.
RESPONDENT:
THE STATE OF TAMIL NADU & ORS.
DATE OF JUDGMENT: 25/04/2001
BENCH:
S. Rajendra Babu & S.N. Variava
JUDGMENT:
S. N. VARIAVA, J.
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This Appeal is against a Judgment dated 20th September,
1990. Briefly stated the facts are as follows:
Sometime in 1899 one Shri Singam Chetty Vakulabharanam
Chetty registered a Deed of Settlement. For the purposes of
this Appeal Clause 7 of this Deed of Settlement is relevant.
It reads as follows:
"7. From the rents of landed properties from which
incomes are derivable and from the interest and other
incomes, the charges for the repair of houses and landed
properties, taxes, etc., establishment and other expenses,
the permanent expenses mentioned in list E and the expenses
mentioned in list G shall be deducted every year, and out of
the balance money, 20 per cent, shall be held in reserve and
the residue shall be utilized from year to year as the
Trustees deem fit, for the repair of the houses of Tengalai
Vaishnavas, devotees ascetics, pious men, preachers and the
poor, who live in Vaishnava sacred places and other sacred
places, their food, education, thread investiture,
marriages, and for the education of the poor and the young
among us Vaisyas. If, however, the income be less than the
expenses mentioned in the said lists E and G such deficiency
shall be met from the reserve of 20 per cent, set apart in
previous years and even if that reserve be exhausted all the
other items of expenses for charity, etc., except the
expenses for the worship of the family idols and for
lectures shall be adjusted from time to time according to
the income."
List E contained various donations of specific amounts,
some of which were of a religious character and the others
of secular and charitable character. List G contained
donations to individuals. On 10th December, 1947 the
Endowment Board passed an Order under Section 77 of The
Hindu Religious and Charitable Endowments Act, 1927.
(hereinafter called the Act). The Order was to the effect
that 50 per cent of the income of the Trust should form
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religious endowment to which the provisions of the Act would
apply. Section 77 of the said Act reads as follows:
"77. (1) Where an endowment has been made or property
given for the support of an institution which is partly of a
religious and partly of a secular character or for the
performance of any service or charity connected therewith,
or
where an endowment made or property given is
appropriated partly to religious and partly to secular uses,
the Board may notwithstanding anything contained in the
Madras Endowments and Escheats Regulation, 1817, determine
what portion of such endowment or property or of the income
therefrom shall be allocated to religious uses. Such
portion shall thereafter be deemed to be a religious
endowment and its administration shall be governed by the
provisions of this Act.
(2) Any party affected by an order under sub-
section (1) may within such time as may be prescribed
apply to the court to modify or set aside such order but,
subject to the result of such application, the order of the
Board shall be final."
No application was made to any Court to modify or set
aside this Order. Thus the Order became final.
In 1951 the Act was amended. In the amended Act,
Section 57(g) was in terms identical to the old Section 77.
As in spite of the said Order the Appellants had not
complied with the directions in the said Order, a notice was
issued to them on 15th March, 1952. The Appellants then
filed Application No. 75 of 1952 before the Deputy
Commissioner. The prayer in this Application reads as
follows:
"(8) It is therefore prayed that the Deputy Commissioner
be pleased to hold that the endowments covered by the trust
would not come under Section 57 (g) and that the petitioner
be permitted to administer and carry out the endowments in
the trust deed as per provisions made therein and the
directions made in the order of the Deputy Commissioner
dated 15-3-1952 be modified in the light of the provisions
of the present Act and in view of the representation
aforesaid."
The Deputy Commissioner by his Order dated 13th
September, 1952 held that the directions given by him on
15th March, 1952 were in pursuance of the Order dated 10th
December, 1947. It was held that that order had become
final. It was held that the only remedy of the Appellants,
if any, was to file a Petition to the Government under
Section 103(b) of the Act.
The Appellants then filed an Application to the
Government under Section 103(b). By an Order dated 2nd
January, 1954 that Application was rejected as being
time-barred. It was, however, mentioned that the Deputy
Commissioner could be moved afresh for an Order under
Section 57(g) of the Act.
The Appellants then moved the Deputy Commissioner under
Section 57 (g) by way of Application No. 55 of 1954. Even
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in this Application no challenge was made to the Order dated
10th September, 1947. The only prayer was as follows:
" (14) The Petitioners therefore pray that this Hon’ble
Deputy Commissioner will be pleased to hold (a) that the
charities enumerated in question in question in Schedule "E"
to the trust deed have to be carried out with the amounts
provided for therein, to be adjusted if need be at the
discretion of the trustees in the contingencies set out in
para 7 of the Trust Deed, and (b) to declare that the
endowments do not come within the perview of Sec. 57(g) and
that the allotment of 50 per cent of the income is illegal
and do not binding upon the trust and to pass such further
or other orders as are just and necessary in the
circumstances. "
By an Order dated 25th June, 1954 the Application was
dismissed on that ground that the Deputy Commissioner had no
power to sit in Appeal over an order passed by the earlier
Board. An Appeal against this Order was dismissed by the
Commissioner on 27th October, 1954.
The Appellants then filed Suit No. 245 of 1955 in the
City Civil Court at Madras. In this Suit they prayed that
the Order dated 27th October, 1954 be set aside as it was
ultra-vires the Hindu Religious and Charitable Endowments
Act, 1951. This Suit was decreed on 20th November, 1959.
The Commissioner filed an Appeal before the High Court of
Madras. By a Judgment dated 5th August, 1969 the Appeal was
allowed and the Suit was dismissed. In this Judgment it has
been held that the Deputy Commissioner was right when he
held that he had no jurisdiction to sit in an Appeal over an
order passed by the earlier Board. It was held that Order
had become final. It was held that the question whether or
not there was outright devolution of property for religious
and secular purposes was not free from doubt. It was held
that in 1947 a bonafide dispute had arisen. The Judgment
ends with the following observations:
"We are not mentioning any opinion as to whether the
plaintiffs can agitate for their relief in independent
proceedings for vacating the order of the Board. It will be
open to them to take appropriate proceedings for the purpose
if they are so advised."
Basing their case upon these observations the Appellants
then filed Suit No. 32 of 1970 praying for an injunction
against the Board from interfering with the Trust, its
administration and control, either by themselves or from
their Officers under the provisions of the Tamil Nadu Hindu
Religious and Charitable Endowments Act, 1959 or the earlier
Acts. An injunction was also prayed against defendants on
that ground that the previous Acts of the defendants were
void and without jurisdiction. Thus now, for the first
time, in an indirect method, the Order dated 10th December,
1947 was being challenged. To be noted that it had already
been held by the earlier Division Bench, in its Order dated
5th August, 1969, that a bonafide dispute had existed in
1947. It had also been held that the Order dated 10th
December, 1947 had become final. The earlier Division Bench
had thus held that the Order of the Board dated 10th
December, 1947 was with jurisdiction.
The learned single Judge thus dismissed the Suit on 10th
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September, 1979. The Appeal as against that Judgment was
dismissed by the impugned Judgment dated 20th September,
1990.
Mr. Parikh assailed the Orders on the ground that the
Order of the Board dated 10th December, 1947 was without any
jurisdiction. He submitted that the Board could only have
passed an order provided Section 77 of the 1927 Act was
applicable. He submitted that for Section 77 to become
applicable there should be an endowment made or property
given for support of an institution which was partly of a
religious and partly of a secular character. He submitted
that in this case there was no endowment to any particular
institution. He submitted that therefore Section 77 did not
at all apply and the Board had no jurisdiction.
It was next submitted that in any event the Deed of
Settlement made specific contributions for specific
purposes. It was submitted that where specific endowments
have been made for specific purposes Section 77 would not
apply. It was submitted that Section 77 would only apply if
an general endowment was made or property given and that
endowment or property was used partly for religious and
partly for secular purposes. It is submitted that for this
reason also Section 77 would not apply.
The challenge to Order dated 10th December, 1947, made
at such a belated stage, could only be sustained provided
the Order was without jurisdiction. The question whether
the Order was without jurisdiction had already been decided
against the Appellants by Order dated 5th August, 1969. The
first portion of Section 77 undoubtedly talks about an
endowment made or property given for support of an
institution. But that is not the only provision. Section
77 also applies when an endowment is made or property given
partly to religious and partly to secular uses. Clause 7 of
the Trust Deed and List E show that endowments have been
made and property given partly for religious and partly for
secular uses. It, therefore, could not be said with
absolute certainty that Section 77 did not apply. If there
was a dispute as to whether Section 77 applied or not then
the Board could decide the question and pass an Order. It
did so on 10th December, 1947. Such an Order would be one
which was passed with jurisdiction. As the same was not
challenged within the time provided it became final as
against the Appellants.
It was next submitted that as specific endowments had
been made for specific purposes, the Order dated 10th
December, 1947 was hit by Article 26 of the Constitution.
It was submitted that neither the Board nor the Court could
vary the intention of the settlor and sanction a deviation.
In support of this submission reliance was placed on the
cases of Goda Rao v. State of Madras reported in AIR 1966
SC 653 and Ratilal v. State of Bombay reported in AIR 1954
SC 388.
There can be no dispute with the general proposition
that the intention of the settlor cannot be varied.
However, in this case there is no variation or deviation
from the intention of the settlor. All that has been done
is that the provisions of the Act have been applied and the
percentage which has to be used for religious purposes have
been laid down.
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Under the circumstances, we see no reason to interfere.
The Appeal stands dismissed. There will be no Order as to
costs.