| SooperKanoon Citation | sooperkanoon.com/1186707 |
| Court | Chennai Madurai High Court |
| Decided On | Dec-01-2016 |
| Case Number | S.A. (MD) No. 438 of 2006 |
| Judge | The Honourable Ms. Justice V.M. Velumani |
| Appellant | The Idol of Sri Renganathaswamy, rep. by its Executive Officer/Joint Commissioner, Srirengam |
| Respondent | P.K. Thoppulan Chettiar and Others |
(Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 31.08.2005, made in A.S.No.118 of 2005 on the file of the Principal District Court, Trichirapalli, confirming the judgment and decree dated 10.11.2004, made in O.S.No.60 of 2004 on the file of the II Additional Subordinate Court, Trichirapalli.)
1. This Second Appeal has been filed against the judgment and decree dated 31.08.2005, made in A.S.No.118 of 2005 on the file of the Principal District Court, Trichirapalli, confirming the judgment and decree dated 10.11.2004, made in O.S.No.60 of 2004 on the file of the II Additional Subordinate Court, Trichirapalli.
2. The appellant is the fourth defendant in O.S.No.60 of 2004, on the file of the Subordinate Court, Trichy, who lost in both the Courts below. The first respondent Trust, represented by its Managing Trustee Sri.K.Santhana Gopalakrishnan, is the plaintiff. The respondents 2 and 3, the Trustees of the first respondent, are the defendants 1 and 2. The fourth respondent, who agreed to purchase the suit property, is the third defendant.
3. The first respondent filed the suit in O.S.No.60 of 2004 before the Subordinate Court, Trichy, seeking permission to sell the suit property to the fourth respondent or his nominee as per the Agreement, dated 01.02.2001 and to deposit the sale consideration in any one of the Nationalised Banks and to permit the present Managing Trustee and other subsequent Managing Trustees to withdraw only interest from the Fixed Deposit and not to withdraw corpus fund/sale consideration and carry on charities as contemplated by settlement deed, dated 08.07.1901, executed by Thoppulan Chettiar, the great Grandfather of present Managing Trustee, Santhana Gopalakrishnan.
4. Facts of the case:-
(i) The suit property originally belonged to Thoppulan Chettiar. On 08.07.1901, he executed a settlement deed for carrying out Charity by his descendants. In the suit property, he constructed a 'Stone Mandapam' and used to invite Deity Sri Renganathaswamy during the Gajendra Motcham in the Tamil month of Chithirai, Pathinettam Perukku or Aadi 28th day festival in the Tamil month of Aadi and he used to receive Honours from Srirangam Renganathaswamy Devasthanam. The said Thoppulan Chettiar was doing charity of Thaneer Pandal , Kollu Kanchi and supply of food for three days during Car Festival of Sri Renganathaswamy in the Tamil Month of Chithirai, from and out of the Mahimai fund [Gods Account], which was established from his Granary business. He was doing the said Charity for 14 years and was willing to do the same till his life time. After his life time, he directed his three sons to continue to do the Charity and establish Mahimai fund from and out of the income of their business. After their life time, their descendants must continue to do the said Charity from the income of their business and his sons and descendants are entitled to receive first Honour from the Deity. If Mahimai fund is excess, it must be kept as fund and if Mahimai fund is less than the expenditure, from and out of the business income, the Charity has to be carried out.
(ii) The said property was leased out to Sri Renga Fibre for 20 years, by lease deed, dated 29.04.1978. The said Renga Fibre has sub-let the suit property to various third parties. A portion of the suit property measuring 2,500 sq.ft., was encroached by third parties. The first respondent has filed O.S.No.706 of 1984 before the Principal Subordinate Court, Trichy, for eviction. There is a possibility of more encroachment and there is no income from the suit property. The suit property is not dedicated to the appellant and the Charities are not directed to be carried out from and out of the income from the suit property. There is no charge created over the suit property and there is no prohibition for creating encumbrance or sell the property as per settlement deed. Even if there is any prohibition, it is hit by provisions of Transfer of Property of Act.
(iii) The present Managing Trustee Santhana Gopalakrishnan is carrying on Charity from and out of his income. The Trustees are finding it very difficult to maintain the suit property and to prevent the encroachment. The fourth respondent has agreed to purchase the suit property, measuring 25,000 sq.ft., leaving 4,136 sq.ft., where the 'Stone Mandapam' is situated. The fourth respondent has agreed to evict the encroachers at his own cost. If sale consideration is deposited in a Fixed Deposit, in any one of the Nationalised Banks, it will fetch interest, which will be more than sufficient for carrying out the Charity.
(iv) The first respondent Trust is a private Trust and property is not dedicated to the appellant Temple and provisions of Hindu Religious and Charitable Endowment Act [hereinafter referred to as H.R. and C.E. Act ] are not applicable to the first respondent Trust. In the settlement deed, beneficiaries are specifically mentioned. The title of the property was not divested from the owner and descendants of Settlor continued to be owner of the property.
(v) The respondents 2 and 3 filed written statement denying the averments that they are not interested in doing Charities. On the other hand, they are receiving Honours from Deity after first Honour given to the Managing Trustee and further stated that they are not objecting to sale in favour of the fourth respondent.
(vi) The fourth respondent filed written statement and made averments in similar lines as made by the first respondent. He further stated that it will be in the interest of Trust, if the property is sold to him and the interest from sale consideration will be more than sufficient to carry out Charity as per the settlement. He will also evict the encroachers at his own cost.
(vii) The appellant filed written statement denying the various averments made by the first respondent and submitted that as per settlement deed executed by P.K.Thoppulan Chettiar, the suit property was dedicated to the Temple. Charity mentioned in the settlement deed are connected with Hindu Religion. Therefore, the H.R. and C.E. Act is applicable. The said Thoppulan Chettiar has completely divested his interest in favour of the appellant. As per the settlement, the suit property cannot be sold by the first respondent. The Trust is not a private Trust. It is a Public Religious Trust. Therefore, the agreement between the first respondent and the fourth respondent is not binding on the appellant. The sale consideration is very much less than the value of the property and prayed for dismissal of the suit.
(viii) Based on the pleadings, the learned II Additional Subordinate Judge, Trichy, framed necessary issues.
(ix) Before the Trial Court, the first respondent examined himself as P.W.1 and marked 17 documents as Exs.A.1 to A.17. The respondents 2 and 3 examined themselves as D.Ws.1 and 2 and one Goapala Krishnan, Venuraj and Lakshimpathi were examined as D.Ws.3 to 5 and marked 2 documents as Exs.B.1 and B.2.
(x) The learned II Additional Subordinate Judge, Trichy, considering the pleadings, oral and documentary evidence adduced by the parties and the arguments of the learned counsel appearing for the parties, decreed the suit as prayed for holding that the suit property was not dedicated to the appellant Temple and the Trust is only a private Trust and not Public Religious Trust and therefore, H.R. and C.E. Act is not applicable and the suit is maintainable.
(xi) Against the judgment and decree, dated 10.11.2004, the appellant has filed A.S.No.118 of 2005 before the Principal District Court, Trichy.
(xii) The learned Principal District Judge, Trichy, framed necessary points for consideration.
(xiiii) The learned Principal District Judge, Trichy, independently and elaborately considering the pleadings, oral and documentary evidence, judgment of the Trial Court, the judgments relied on and the arguments of the learned counsel for the parties, by judgment and decree, dated 31.08.2005, dismissed the first appeal, confirming the judgment and decree of the learned II Additional Subordinate Judge, Trichy, passed in O.S.No.60 of 2004.
5. Against the said judgment and decree, dated 31.08.2005, the appellant has filed the present second appeal.
6. At the time of admitting the second appeal, this Court framed the following substantial questions of law:
1. Whether the conclusion of the lower Court is erroneous in decreeing the suit without considering that the plaintiffs trust is a public religious Trust and not a private trust?
2. Is not the conclusion of the lower Court erroneous in decreeing the suit as the civil court has no jurisdiction to decide the issue and only the Commissioner of Hindu Religious Charitable and Endowments Department is empowered to accord sanction for alienation of immovable property of the plaintiff public religious trust?
3. Is not the conclusion of the lower Court erroneous in decreeing the suit as the Doctrine of Cypress is not applicable to the plaintiff's trust as per the restrictive clause in the trust deed?
4. Whether the suit is not maintainable in view of specific bar under the provisions of Hindu Religious and Charitable Endowments Act?
7. The learned Senior Counsel appearing for the appellant contended that the first respondent Trust is a Public Religious Trust. The Courts below erred in holding that the first respondent Trust is a Private Trust. The Courts below ought to have seen that the first respondent Trust is a Trust created for carrying out specific service by the Charity and therefore, it is a specific endowment as contemplated under Section 6(19) of the H.R. and C.E. Act. The Courts below failed to see that the suit property has been dedicated absolutely in favour of Idol for performance of Religious Charity. Therefore, the first respondent is Public Religious Trust and the provisions of Sections 6(18) and 6(19) of the H.R. and C.E. Act are applicable to the first respondent Trust and as per Section 34 of the H.R. and C.E. Act, only the Commissioner of H.R. and C.E., has power to grant sanction for alienation of immovable property belonging to the Trust and the Civil Court has no jurisdiction to grant permission to sell the suit property. Due to the prohibition to alienate the property, the Doctrine of Cypress is applicable and Sections 10 and 11 of Transfer of Property Act are not applicable to the first respondent Trust. The Courts below failed to properly appreciate the evidence let in by the appellant and erroneously decreed the suit and dismissed the first appeal filed by the appellant.
8. The learned Senior Counsel appearing for the appellant relied on the following judgments to substantiate the above contentions.
(i) 1965 (II) MLJ 47 (SC) [The Commissioner, Madras Hindu Religious and Charitable Endowments, Madras Vs. Narayana Ayyangar and others]. When Charity is associated with a Hindu festival or observance of a religious character, the said Public Charity will be the Religious Charity, even if it is not connected with Mutt or Temple. The Charity endowed to feed Brahmins attending Car Festival of Prasanna Venkatachalapathy shrine is held to be a Public Charity and connected with Hindu festival and therefore, it is a Religious Charity within the meaning of Section 6(13) of Madras Hindu Religious and Charitable Endowments Act XIX of 1951. In the present case, the Settlor has directed his descendants to continue the Charity by inviting Lord Renganathar on two occasions on the suit property and also distributing water, Kollu Kanji and to serve food during the Car Festival in the month of Chithirai in the appellant Temple.
(ii) 2000 (II) CTC 559 [The Commissioner H.R. and C.E. Administration Department, Nungambakkam High Road, Madras 34 Vs. C.V.Sudharsan and another]. When the beneficiaries are incapable of being ascertained, the Trust is a Public one and only the Commissioner of H.R. and C.E. Department has power to give permission to alienate the property.
(iii) AIR 2006 SC 104 [Joint Commissioner, Hindu Religious and Charitable Endowments Administration Department Vs. Jayaraman and others]. When an Inam is attached to a Temple and the Temple is covered by the H.R. and C.E. Act neither the Civil Court nor the provision of Trust Act would apply for selling the property. Only the Trustee can seek remedy under the H.R. and C.E. Act.
(iv) 1996 (1) LW 231 [Sri.Madhavaperumal Devasthanam Vs. Tmt.Dhanalakshmi and others]. This Court held that the Idol is in the position of a minor and the Court must protect the position of an Idol in any litigation.
(v) 2007 (7) SCC 482 [A.A.Gopalakrishnan Vs. Cochin Devaswom Board and others]. It is the duty of the Courts to protect and safeguard the properties of religious Charitable Institutions from wrongful claims or misappropriation.
9. The learned Senior Counsel appearing for the appellant also relied on the following judgments in support of his contentions.
(i) 2003 (3) LW 380 [Kalia Pillai (Died) and others Vs. Kathayee Ammal Dharmam (Charities) and others]
(ii) 2005 (1) SCC 457 [Thayarammal (Dead) By LR. Vs. Kanakammal and others]
(iii) 2015 (O) Supreme (SC) 1075 [K.S.Soundararajan and others Vs. Commissioner of H.R. and C.E. and others]
10. Per contra, the learned Senior Counsel appearing for the first respondent submitted that Thoppulan Chettiar did not gift the property in favour of the appellant. In the settlement deed executed by Thoppulan Chettiar, dated 08.07.1901, marked as Ex.A.1, there is no religious endowment or specific endowment created by Thoppulan Chettiar in favour of the appellant Temple and therefore, H.R. and C.E. Act is not applicable to the first respondent Trust. The first two Charities inviting Deity to Kalyana Mandapam, situated in the suit property on two occasions, is for him to offer worship and receive Honour from the Deity. The third direction is to establish supplying water, Kollu Kanji and serving food to the people, who visited Srirangam for three days at the time of Car Festival. The Charity mentioned in the settlement deed are to be performed outside the premises of the Temple and not within the Temple and therefore, there is no gift, settlement or endowment of suit property created in favour of the appellant. The Charity mentioned in the settlement deed will not come under Religious Charity, as per the definition under Section 6(16) of the H.R. and C.E. Act. The Endowment as per settlement, is not a specific Endowment as contemplated under Section 6(19) of H.R. and C.E. Act.
11. The learned Senior Counsel appearing for the first respondent submitted that the judgments relied on by the learned Senior Counsel for the appellant reported in 1965 (II) MLJ 47 (SC) (cited supra) is not applicable to the facts of the present case, as Endowment made therein was to feeding Brahmin Pilgrims attending 'Rathotsavam'. Similarly, the facts of the case reported in 2000 (II) CTC 559 (cited supra) is also not applicable, as in the said case, direction for offering food to the Pilgrims, who visited Perumal Temples and Charity is directed to be carried out within the Temple premises. Similarly, the judgment reported in 2003 (3) LW 380 [cited supra] is also not applicable to the facts of the present case, since the Authorities of Aurnachaleeswarar Temple, Tiruvannamalai, has continuous control over the administration of the Trust and charge is associated with the Temple for feeding Hindus, who come to Thiruvannamalai Town, to have the Dharsan of Lord Arunchaleeswarar and for their stay in the Choultry.
12. The learned Senior Counsel appearing for the first respondent submitted that the Charity mentioned in the Trust is not restricted to Hindus alone. A Division Bench of this Court in the judgment reported in 1960 (II) MLJ 591 [The State of Madras, by the Secretary, Revenue Department, Madras and another Vs. The Urumu Seshachalam Chettiar Charities, Tiruchirapalli, by its Board of Trustees and others] held that noble intention of Hindus to provide Thaneer Pandal and feeding to people belonging to all religions is well known and has been recognised by Courts. In view of the said judgment, the Charity mentioned in the settlement deed Ex.A.1 cannot be termed as Public Religious Charity. The Division Bench of this Court also held that only if the Endowment is exclusively for Hindus, it would be a specific Endowment within the meaning of the H.R. and C.E. Act. The Donor, being a Hindu, the Endowment cannot be considered as Hindu Religious Endowment. Similarly, even if most of the beneficiaries are Hindus, it cannot be considered as Charitable Trust. The Charities mentioned in the settlement deed, is not restricted only to Hindus and even Non-Hindus are beneficiaries. In view of the same, the judgment of the Division Bench of this Court reported in 1960 (II) MLJ 591 (cited supra) is squarely applicable to the facts of the present case. This judgment was followed by a learned Single Judge of this Court in the judgment reported in 1985 (II) MLJ 492 [A.M.Ponnuswamy Nadar Vs. The State of Tamil Nadu, represented by the Commissioner and Secretary to Government, Commercial Taxes and Religious Endowments Department, Madras 9 and another].
13. The learned Senior Counsel appearing for the first respondent also relied on the judgment reported in 2001 (2) LW 654 [The Commissioner of H.R. and C.E.(A) Dept., etc., Vs. S.Ramasami Iyer and others] and submitted that feeding 300 Brahmins during the Thirukalyanam and Car Festival in the month of Chithirai, will not amount to Religious Endowment, as feeding was not connected to the festival conducted by the Temple, but it is only on the occasion of said festival at a place away from the Temple. D.W.5 examined on behalf of the appellant has admitted that the property did not find place in the Property Register of the Temple and the Temple does not have any control over the Donor's directions on performance or non-performance of the Charity and only if application is made from the Donor or Donor's family, the Deity would be brought to Donor's place and the Honours would be given and if no such application is received, the Temple would not question the Donor as to why they have not applied.
14. The learned Senior Counsel submitted that the Temple would not, in any manner, be prejudiced, if the sale as prayed for takes place. The learned Senior Counsel appearing for the first respondent further submitted that entire property mentioned in the settlement deed is not sought to be sold. An extent of 4,136 sq.ft., wherein the 'Stone Mandapam' is situated, where the Deity would be invited at the time of Gajendra Motcham in the Tamil month of Chithirai and Aadi Pathinettam Perukku, being conducted on 28th day of Aadi month, is retained by the first respondent Trust. The remaining portion only sought to be sold. The sale consideration is to be deposited in a Nationalised Bank and only interest from such deposit would be utilised for carrying out the Charity. In the settlement deed, the interest of Settlor or his descendants are not divested from the property. The property has not been set apart for charitable purpose. The dedication is not absolute. A reading of settlement deed would clearly show that the Charities are to be carried out from 'Mahimai' fund, which is established from and out of the business income of the Settlor and his sons. The property is not for religious activities, but only for charitable purpose and therefore, the provisions of H.R. and C.E. Act will not apply.
15. The learned Senior Counsel appearing for the first respondent relied on the following judgments and submitted as follows:
(a) 2003 (3) LW 16 [Kuldip Chand and another Vs. Advocate General to Government of Himachal Pradesh and others]. The suit property is not dedicated to the appellant and prohibition not to alienate the property will not amount to dedication in favour of the appellant.
(b) 2001 (2) CTC 351 [The Commissioner, H.R. and C.E. (ADMN) Department Vs. N.A.Ramaswamy Chettiar and two others]. In the absence of divestment of title in favour of Deity, the endowment is not a specific endowment.
(c) 1978 (I) MLJ 492 [M.S.Dharma Raja and others Vs. M.K.Rama Ammal and another]. Mere execution of a deed of gift or an instrument is not enough to constitute a valid endowment.
(d)2007 (2) MLJ 15 [Sri Krishnavilas Bajanai Madam Vs. Commissioner, H.R. and C.E. Department and others]. When there is no evidence to show that any member of the public had participated in the Management, the Trust is private Trust only and not Public Charitable Trust.
(e) 1997 (3) LW 537 [Changiah, A. etc., O.P.No.311 of 1997, dated 18.06.1997] and 2004 (4) CTC 114 [Arulmighu Mahalakshmi Temple, Rep. by the Executive Officer Vs. M.S.Srinivasa Raghavan and others]. When the Trust is secular in nature, suit by the Trustee seeking permission to sell the Trust property is maintainable and further submitted that Section 34 of the Trust Act is applicable, enabling the Trustee to file a Civil Suit.
16. In the present case, settlement deed will not restrict the benefit only to different sects of Hindus, but people of all caste, creed, community and religion are entitled to benefit. The Courts below have appreciated the pleadings, oral and documentary evidence and arguments and the judgments relied on by the parties, rightly decreed the suit and dismissed the first appeal. The learned Senior Counsel appearing for the first respondent submitted that restriction imposed on the Trustees not to alienate the property is invalid condition. As per Sections 10 and 11 of the Transfer of Property Act and by applying the principle of Doctrine of Cypress Theory, the Trustees are empowered to sell the property to implement the Charity mentioned in the settlement deed. Further, the beneficiaries are not entitled to income and profits of the Trust and the Clause restricting the Trustees from alienating the property is void in the eye of law and therefore, prayed for dismissal of the second appeal.
17. Nobody entered appearance on behalf of the respondents 2 and 3, pursuant to non-payment of Batta by the appellant.
18. The learned counsel for the fourth respondent submitted that the sale in favour of the fourth respondent would benefit the first respondent Trust. From the interest from Fixed Deposit of sale consideration, the first respondent can carryout the Charities. Tenants are not paying rent and a portion of the suit property is encroached by third parties. There is a possibility of more encroachments. The property in entirety may be lost from the control of Trustees and no Charity can be carried out and Trustees will not be in a position to invite Deity to 'Stone Mandapam'.
19. I have carefully perused all the materials available on record and the judgment and decree of the Courts below and considered the arguments advanced by the learned counsel appearing for the parties and the judgments relied on by them.
20. To decide whether the first respondent Trust is a Public Religious Trust or Private Trust, the settlement deed Ex.A.1 has to be considered. From Ex.A.1 it is seen that the Settlor Thoppulan Chettiar was doing free Charity for 14 years prior to the said settlement. He has expressed his intention to do the said Charity till his life time and performed the said Charity from and out of the income from his Granary business and also the income from the suit property. He has called the said fund as Mahimai fund, i.e., Gods fund and the income from the suit property. He constructed a 'Stone Mandapam' in a portion of the suit property. He invited the Deity of Lord Sri Renganathaswamy during the Gajendra Motcham in the Tamil month of Chithirai, Pathinettam Perukku or Aadi 28th day festival in the Tamil month of Aadi and to do the worship and receive first Honour from Srirangam Renganathaswamy Devasthanam. He directed his three sons to continue to do free Charity, which he is doing from and out of the income from their business. He has also stated that the property should not be alienated or encumbered.
21. A reading of Ex.A.1 reveals that Thoppulan Chettiar retained title and control over the suit property with him. He did not divest the title either to Deity or to the appellant Temple. There is no dedication to the Idol or to the appellant Temple. Further, a reading of Ex.A.1 shows that the suit property including 'Stone Mandapam' was not dedicated to the appellant Temple or Idol. Therefore, the contention of the learned Senior Counsel for the appellant that the entire suit property, where the 'Stone Mandapam' is situated, is dedicated to the appellant is contrary to the facts. Hence, the judgments reported in 2003 (3) LW 380, 2005 (1) SCC 457 and 2015 (O) Supreme (SC) 1075 [cited supra], relied on by the learned Senior Counsel for the appellant are not applicable to the facts of the present case and do not advance the case of the appellant.
22. Similarly, the judgments relied on by the learned Senior Counsel for appellant 1996 (1) LW 231, 2007 (7) SCC 482 and AIR 2006 SC 104 [cited supra] are also not applicable to the facts of the present case. It is seen from Ex.A.1 that the said Thoppulan Chettiar has also not created any charge or encumbrance over the suit property for carrying out Charity. The Charity are not carried out in the premises of the Temple, but it is carried out out side the Temple, when he invites the Deity to the 'Stone Mandapam' in the suit property to do worship and receive the first Honour. The Temple authorities have no control over the suit property or the Trustees. Only when the Trustees apply to the Temple authorities inviting the Deity to 'Stone Mandapam' and pay necessary charges, the Deity will be taken to 'Stone Mandapam' and the Trustees will worship and receive Honour. The Temple authorities cannot compel the Trustees to invite the Deity or perform Charity as mentioned in the settlement deed. D.W.5 witness examined on behalf of the appellant admitted that the suit property is not shown as property of Temple in the Property Register of Temple.
23. From the above facts, it is clear that Thoppulan Chettiar did not create any specific endowment and did not dedicate the suit property to Idol or to the appellant Temple. The Charity mentioned in the settlement is not restricted only to Hindus or to any particular sect of Hinduism. The Charity contemplated in the settlement is open to general public of all caste, creed and Religion. Therefore, the first respondent Trust is only a Private Trust and not a Religious or Public Trust.
24. The contention of the learned Senior Counsel for the appellant that number of beneficiaries are not restricted and the Charity has to be done during Temple festival and hence, the first respondent is Public Religious Trust and Charity is Religious Charity, has no force. This issue has been considered in the judgment reported in 2001 (2) LW 654 [cited supra]. In the said judgment, it has been held that feeding of not less than 300 Brahmins during the Thirukalyanam and Car Festival in the month of Chithirai, will not amount to Religious character, as feeding was not connected with the festival conducted by the Temple and it was done only on the occasion of said festival at a place away from the Temple.
25. In the judgments reported in 2000 (II) CTC 559 and 2003 (3) LW 380 [cited supra] relied on by the learned Senior Counsel for the appellant are also not applicable to the facts of the present case. In the judgment reported in 2000 (II) CTC 559 [cited supra], Brahmins were provided with food inside the Temple and it has been held that the endowment is to feed Brahmins inside the Perumal Temple.
26. In the judgment reported in 2003 (3) LW 380 [cited supra], it has been held that the Temple Authorities of Arunchaleeswarar Temple, Tiruvannamalai, had control over the property endowed and original owner or his descendants did not have any control over the said property.
27. These judgments are not applicable to the facts of the present case and do not advance the case of the appellant.
28. The judgment of the Division Bench of this Court reported in 1960 (II) MLJ 591 [cited supra], which was followed by the learned Single Judge of this Court in the judgment reported in 1985 (II) MLJ 492 [cited supra], relied on by the learned Senior Counsel for the first respondent is squarely applicable to the facts of the present case.
29. The first respondent Trust is not a Religious Trust. Therefore, H.R. and C.E. Act is not applicable. In the circumstances, the first respondent is not a Religious Public Trust and the Charity is not a Religious Charity and there is no endowment as defined in Sections 6(16), 6(17) and 6(19) of the H.R. and C.E. Act. Therefore, the judgment relied on by the learned Senior Counsel for the appellant reported in 1965 (II) MLJ 47 (SC) [cited supra], is not applicable to the facts of the present case.
30. In view of this conclusion, the provisions of H.R. and C.E. Act are not applicable to the first respondent Trust. For permission to sell the property, a suit in a Civil Court is maintainable and the contention of the learned Senior Counsel for the appellant that only the Commissioner of H.R. and C.E. Department has power to grant permission to sell the suit property is not correct.
31. The contention of the learned Senior Counsel for the appellant that the suit property cannot be sold in view of total prohibition imposed by the Settlor in Ex.A.1 by Thoppulan Chettiar, is not correct. A total prohibition to alienate the property is against public policy and void as per Sections 10 and 11 of the Transfer of Property Act. The said Sections read as follows:
10. Condition restraining alienation.- Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: provided that property may be transferred to or for the benefit of a woman (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.
11. Restriction repugnant to interest created.- Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.
[Where any such direction has been made in respect of one piece of immoveable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof.]
32. Ex.A.1 Settlement Deed has to be read as a whole. Therefore, the first respondent can sell the property for the benefit of Trust to carryout the charities. The first respondent has stated that the suit property was rented out to Sri Renga Fibre for 20 years and they have sub-let the property. The tenants and the sub-tenants are not paying any rent. Further, the people have encroached the suit property. The Trustees are residing away from the suit property and they are not in a position to prevent further encroachment and safeguard the property. A suit in O.S.No.706 of 1984 on the file of the Principal Subordinate Court, Tiruchirapalli, has been filed for eviction of tenants and encroachers and the same was pending for 20 years at the time of filing of the suit. There is no income from the suit property. The present Managing Trustee is employed in BHEL, Trichy and he is not doing any business. From and out of the salary, he is carrying out Charity as contemplated in the Settlement Ex.A.1. The respondents 2 and 3, who are also Trustees of the first respondent have not contributed any amount to carry on Charity. The fourth respondent has agreed to purchase an extent of 25,000 sq.ft., from the suit property excluding 4,196 sq.ft., wherein the 'Stone Mandapam' is situated. The fourth respondent has also agreed to evict the tenants as well as encroachers at his own cost. If the property is sold to the fourth respondent and sale consideration is deposited in any one of the Nationalised Banks and the first respondent is permitted to withdraw interest alone once in a year, the Charity as contemplated in Ex.A.1 can be carried out without any difficulty and excess amount can be kept as reserve fund. In the circumstances, the Courts below considering these aspects, have rightly held that total prohibition of alienation of the property is invalid and void ab initio and principle of Doctrine of Cypress is applicable. There is no error or law in the said consideration.
33. Considering the fact that there is no income from the suit property and the Trustees are not carrying out any business and there is no income from the business for 'Mahimai' fund and the suit property is being encroached and there is a possibility of more encroachment, it will be in the interest of the first respondent Trust to sell the property to carry on the Charity mentioned in the settlement Ex.A.1. The present Managing Trustee is only a salaried person and he is carrying out the Charity from and out of his salary. The first respondent Trust has proved that the Charity as mentioned in Ex.A.1 cannot be carried out, if permission to sell the property is not granted. The total prohibition to sell the property became invalid and void. The Courts below have considered all these facts and the judgments relied on by the learned counsel for the parties in proper perspective and has decreed the suit and dismissed the first appeal filed by the appellant. There is no error of law in the judgments of the Courts below, warranting interference by this Court. In the circumstances, the substantial questions of law are answered against the appellant.
34. In the result, the second appeal is dismissed, confirming the judgment and decree of the Courts below. No costs.