In the High Court of Judicature at Madras
Dated: 29.04.2010
Coram:
The Hon'ble Mr.Justice D.MURUGESAN
AND
The Hon'ble Mr.Justice M.SATHYANARAYANAN
WRIT PETITION Nos.21398 and 21399 of 2000
and
W.P.M.P.Nos.31142 & 31144 of 2000
1. Prathapasimha Gade Rao Saheb (Deceased)
2. P.Prathepa
3. R.Raj Kore
4. D.Shamkore
5. P.Ujvaldeep Gade Rao Sahib
(P2 to P5 are substituted as legal
Representatives of P1 as per order
dated 14.10.2009 in W.P.M.P.No.717 of 2009) ... Petitioners
Versus
1. Tamil Nadu Land Reforms Special
Appellate Tribunal, rep. by its Registrar,
Santhome, Chennai -600 004.
2. The Appellate Authority and District
Revenue Officer, Land Tribunal,
Chennai 600 005.
3. The Assistant Commissioner,
Land Reforms, Mayiladuthurai. ... Respondents
Writ Petition under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari to call for the records pertaining to the proceedings of the third Respondent in MRI/162R/17-70, dated 6.1.1997 as confirmed by the second Respondent in LTCMA 10/97 dated 29.12.1997 as confirmed by the first Respondent in SRP 46/98 dated 7.9.2000, and quash the same.
For Petitioner .. Mr.R.Muthukumaraswamy, S.C. for
Mr.A.Jinasenan.
For Respondents .. Mrs.Malarvizhi Udayakumar, SPl.G.P.
*****
O R D E R
M.Sathyanarayanan, J
The petitioners in these writ petitions challenge the common order dated 7.9.2000 made in SRP Nos. 45 and 46 of 1998 passed by the Tamil Nadu Land Reforms Special Appellate Tribunal, Chennai.
2. The facts leading to the filing of these writ petitions are as follows:-
One Radhakrishna Gade Rao Saheb, hailing from Thiruppunthurathi, Tiruvayuru Taluk, Thanjavur District, held an extent of 33.44 ordinary acres equivalent to 25.395 standard acres of land as on 15.2.1970, the date of commencement of Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 as amended by Act 17 of 1970 (in short the Land Reforms Act) . The details of the land held by the above said person are as follows:
Ordinary Acres Standard Acres
Lands held in the name of the land owner 24.05 15.248
Trust lands 9.39 10.147
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33.44 25.395
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3. The unmarried daughter of the above said person by virtue of the Deed of Settlement dated 6.5.1970, got settled the land admeasuring an extent of 10.70 ordinary acres equivalent to 7.579 standard acres. A settlement Deed dated 27.1.1970 was also executed by the said person in favour of his first daughter in which, an extent of 8.73 ordinary acres equivalent to 9.104 standard acres was settled in her favour.
4. The above said person who was the land owner since not chosen to file return in Form No.2 under the Land Reforms Act, voluntarily, a notice dated 22.11.1972 under Section 9(1) of the Act was issued to him calling upon him to file his return. The land owner in response to the said notice, filed his return on 8.12.1972.
5. The authority after granting exemption under Section 9(2)(b) of the Act, has passed an order dated 9.8.1979 declaring an extent of 8.45 ordinary acres equivalent to 8.71 standard acres as surplus agricultural land and in this regard, a draft statement under Section 10(1) of the Act was also published in the Tamil Nadu Government Gazette dated 2.1.1980. A copy of the draft statement annexing form No.7 was also sent to the land owner on 20.1.1980.
6. The land owner challenged the order dated 9.8.1979 passed under Section 9(2)(b) of the Act, by filing an appeal to the Land Tribunal (Sub-Court) Mayiladuthurai and the Tribunal vide order dated 1.11.1980, has dismissed the said appeal in LTCMA No.24 of 1980. The land owner aggrieved by the said order, preferred a Revision before this Court in C.R.P.No.2868 of 1982 and by an order dated 21.12.1983, this Court has set aside the order passed by the Land Tribunal and remanded the matter once again to the Authorized Officer for fresh enquiry and adjudication. This Court while allowing the said Revision, has observed that If the trust created on 13.6.1969 is for religious and charitable purpose, there is no necessity for the individual to hold the properties and that it is not clear whether trust is a private or public trust and consequently directed the Authority to conduct fresh enquiry on that aspect.
7. Similar order passed in LTCMA No.39 of 1979 was also subject matter of the Revision and the same was also once again remanded to the concerned Authority for fresh enquiry.
8. Prior to the said settlement, the predecessors in interest of the petitioner herein executed a Deed dated 10.1.1914, setting apart certain properties in Schedule A for meeting the expenses of the charities specified in Schedule B. Under Schedule B, the names of 17 different kinds of charities are given and also the amount to be spent fort those 17 charities is given as Rs.4311/-. In the said Deed, it has been stated that in respect of the sum of Rs.4311/- which has been set apart for the expenses of the said charities, a charge on the properties mentioned in Schedule A has also been created and it is in respect of the payment of the said amount.
9. The Commissioner for Hindu Religious and Charitable Endowments in exercise of powers conferred under the HR & CE Act, has passed an order dated 10.11.1953, declaring that 21 per cent of the income of the properties in Schedule A would be deemed to form a specific endowment within the meaning of the HR & CE Act. Aggrieved by the said order, M.R.Gada Rao Sahib has filed a suit under Section 62 (ii) of the HR & CE Act for setting aside the said order and the suit was decreed. The Commissioner of HR&CE Department filed an appeal to this Court and in the appeal, it was declared that a specific endowment was created by the instrument of 15.9 per cent of the income for the time being received from the properties described in Schedule A. The above said person challenging the vires of the said order, preferred an appeal to the Honble Supreme Court of India in C.A.No.444 of 1963.
10. The Honble Supreme Court of India vide judgment dated 27.8.1965 held that the proprietors had divested themselves of that part of the income of the properties which is mentioned in Schedule B and also charge has been created on the properties to pay the said amount. The Supreme Court has held that an instrument had created a specific endowment. The Supreme Court has also taken into consideration of the fact that the Schedule B to the above said instrument set out 17 different kinds of charities on which, different amounts were to be spent and this Court in the appeal held that 6 of these properties were not charities within the meaning of HR & CE Act as they were of secular in nature. In respect of remaining 11 properties, the Supreme Court has agreed with the findings of the High Court that those 11 properties form an endowment.
11. As regards the quantum, the Supreme Court held that the word approximate does not occur in every item of the charities and it only show that the persons responsible for paying monies for the charities had discretion to vary the amount mentioned slightly. The Honble Supreme Court on the said factual findings, held that in respect of the right to receive out of the income of the properties a sum of Rs.1590/- only subject to the discretionary powers of the owners of the properties to make slight variation in the amounts mentioned. The said judgment is also reported in AIR 1966 SC page 653 – M.R. Goda Rao Sahib v. State of Madras. The said Judgment was delivered by three Judges and the Honble Mr.Justice V.Ramasamy has delivered a separate verdict. While concurring with the views by the said separate order, the Honble Judge has rejected the contentions made on behalf of the appellant and held as follows:
3. The appellant contends that no specific endowment had been created by the instrument. His contention is that all that was done was to create a charge on the properties to meet the expenses of certain charities but the settlors never divested themselves of those properties or any interest therein. It was said that the mere provision for meeting the expenses of the charities out of the income of the properties and the creation of the charge would not amount to the making of any endowment, for thereby the settlors could not be said to have divested themselves of anything. The main question in this appeal is whether this contention is right.
4. There is no dispute that in order that there may be an endowment within the meaning of the Act, the settlor must divest himself of the property endowed. To create an endowment he must give it and if he has given it, he of course has not retained it; he has then divested himself of it. Did the settlors then divest themselves of anything? We think they did. By the instrument the settlors certainly divested themselves of the right to receive a certain part of the income derived from the properties in question. They deprived themselves of the right to deal with the properties free of charge as absolute owners which they previously were. The instrument was a binding instrument. This indeed is not in dispute. The rights created by it were, therefore, enforceable in law. The charities could compel the payment to them of the amount provided in Schedule B, and, if necessary for that purpose, enforce the charge. This, of course, could not be if the proprietors had retained the right to the amount or remained full owners of the property as before the creation of the charge. It must, therefore, be held that the proprietors had divested themselves of that part of the income of the properties which is mentioned in Schedule B. By providing that their liability to pay the amount would be a charge on the properties, the settlors emphasised that they were divesting themselves of the right to the income and the right to deal with the property as if it was unencumbered. By creating the charge they provided a security for the due performance by them of the liability which they undertook. Further Section 32 of the Act provides that where a specific endowment to a temple consists merely of a charge on property, the trustees of the temple might require the person in possession of the properties charged to pay the expenses in respect of which the charge was created. This section undoubtedly shows that the Act contemplates a charge as an endowment.
14. I am unable to accept this argument as correct. In Hindu law a dedication of property may be either absolute or partial. Iswari Bhubaneshwari v. Brojo Nath Dey, 64 Ind App 203: (AIR 1937 PC 185). In the former case, the property is given out and out to an idol or to a religious or charitable institution and the donor divests himself of all beneficial interest in the property comprised in the endowment. Where the dedication is partial, a charge is created on the property or there is a trust to receive and apply a portion of the income for the religious or charitable purpose. In such a case, the property descends and is alienable and partible in the ordinary way, the only difference being that it passes with the charge upon it. (Maynes Hindu Law, Eleventh Edn., p. 923). In my opinion, the expression religious endowment as defined in Section 6(14) and specific endowment as defined in Section 6(16) of the Act must be construed so as to include both absolute and partial dedication of property. This view is supported by reference to Section 32(1) of the Act which states:
32. (1) Where a specific endowment attached to a math or temple consists merely of a charge on property and there is failure in the due performance of the service or charity, the trustee of the math or temple concerned may require the person in possession of the property on which the endowment is a charge, to pay the expenses incurred or likely to be incurred in causing the service or charity to be performed otherwise. In default of such person making payment as required, the Deputy Commissioner may, on the application of the trustee and after giving the person in possession a reasonable opportunity of stating his objections in regard thereto, by order, determine the amount payable to the trustee.
By the said judgment, the Honble Supreme Court of India held that the properties are not fully endowed to the trust and only the nominal fixed income of Rs.1590/- for spending towards religious and charitable activities with discretion to vary the amount mentioned slightly.
12. The Trustees based on the above said judgment, had divided the properties among themselves and pattas also stand only in the name of the individuals and not in the name of the trust.
13. The Special Tribunal has also taken note of the document dated 13.6.1969 said to be declaration of trust. The Special Tribunal on a perusal of the said document found that only a charge is created for due performance of certain charities from and out of income realized from the lands held by the petitioners and there is no dedication at all to any trust much less to a religious trust of a public nature. The Special Tribunal further found that the ownership of the lands continues vest with 6 persons mentioned in the said deed and the above said deed dated 13.6.1969 can be termed as a security deed for the performance of the charity from and out of income realized from the property. The Tribunal also found that there is no divestitute of right or title or interest of the donors in the properties dealt with under the deed dated 13.6.1969. The Tribunal has also taken into consideration the evidence of P.W.1 and ultimately held that the trust alleged to have created a deed dated 13.6.1969 is not a religious trust of public in nature as mentioned in Section 2(i) (ii) of the Tamil Nadu Land Reforms Act and for the said reasons, dismissed both the Special Revision Petitions. The petitioner aggrieved by the same, has filed these writ petitions.
14. Mr.R.Muthukumaraswamy, learned senior counsel appearing for the petitioners would submit that subsequent to the judgment dated 27.8.1965 rendered by the Honble Supreme Court of India reported in AIR 1966 SC page 653 (cited supra) a Trust Deed came to be executed on 13.6.1969 by which, all the members had constituted a trust of religious and charitable in nature covering the lands in question and it forms under Section 2(i) (ii) of the Land Reforms Act and consequently those lands are excluded from the purview of the said Act. In this connection, the learned counsel appearing for the petitioner has invited the attention of this Court to the document dated 10.01.1914 and Deed of Declaration of Trust dated 13.6.1969 and would submit that subsequent to the above said verdict of the Honble Supreme Court of India, a Deed of Trust has been created wherein the trust has been created vesting the properties in question for the due performance of the charities mentioned in the document dated 10.01.1914. It is also submitted by the learned senior counsel appearing for the petitioners that at the time of execution of the document dated 13.6.1969, the situation prevalent at that point of time was taken into consideration and hence a sum of Rs.1590/- was fixed for spending it towards religious and charitable activities and due to the inflationary trend, huge amount have to be spent for the performance of the activities of religious and charitable nature and the said aspect has not been taken into consideration by the Special Tribunal.
15. It is further contended by the learned senior counsel appearing for the petitioner that the document dated 13.6.1969 should be read along with the document dated 10.1.1914 and it would clearly establish the object of dedication of the properties are purely for the performance of activities which are religious and charitable in nature and consequently the properties in question are to be excluded from the purview of the Land Reforms Act.
16. The learned senior counsel appearing for the petitioners in support of his submission has placed reliance upon the following judgments:
i.AIR 1972 SC 2069 S. Shanmugam Pillai v. K. Shanmugam Pillai.
ii.(2000) 10 SCC 376- State of W.B. v. Atis Chandra Sinha,
17. In AIR 1972 SC 2069 S. Shanmugam Pillai v. K. Shanmugam Pillai, a deed of settlement was executed under which, plaint schedule-I properties except item No.4 were set apart for charities. Subsequently, the successors of Ramalingam Pillai who have set apart the said properties for charities had alienated and one of the questions arose for consideration before the Honble Supreme Court was whether the alienation of plaint schedule IV, is open to challenge?
18. The Honble Supreme Court of India while considering the said question, has taken into consideration its earlier decision reported in AIR 1957 SC 797 – Dasaratharami Reddy v. Duddukuru Subba Rao and in paragraph No.32, it has been held as follows:-
32. As observed by this Court in Menakuru Dasaratharami Reddy v. Duddukuru Subba Rao and Others, AIR 1957 SC 797 that dedication of a property to religions or charitable purposes may be either complete or partial. If the dedication is complete a trust in favour of a charity is created. If the dedication is partial, a trust in favour of a charity is not created but a charge in favour of the charity is attached to and follows the property which retains its original private and secular character. Whether or not a dedication is complete would naturally be a question of fact to be determined in each case on the terms of the relevant document if the dedication in question was made under a document. In such a case it is always a matter of ascertaining the true intention of the parties, it is obvious that such an intention must be gathered on a fair and reasonable construction of the document considered as a whole. If the income of the property is substantially intended to be used for the purpose of a charity and only an insignificant and minor portion of it is allowed to be used for the maintenance of the worshipper or the manager, it may be possible to take the view that dedication is complete. If, on the other hand, for the maintenance of charity a minor portion of the income is expected or required to be used and a substantial surplus is left in the hands of the manager or worshipper for his own private purposes, it would be difficult to accept the theory of complete dedication. Ex. A-2, after setting out the various charities to be conducted concludes by saying that if, after conducting the said charities properly there be any surplus, the same shall be utilised by the said Shanmugam Pillai and his heirs for family expenses. They should also look after the same carefully and properly. This shows that the entire income of the properties set apart for charities was not thought to be necessary for conducting the charities. It was for the plaintiffs to establish that the dedication was complete and consequently there was a resulting trust. As they have failed to establish the same, for the purpose of this case, we have to proceed on the basis that the dedication was only partial and the properties retained the character of private properties. Therefore the widows of V.Rm. Shanmugam Pillai had a beneficial interest in those properties See Kalipada Chakraborti v. Palani Bala Devi, 1953 SCR 503 = (AIR 1953 SC 125) As seen earlier they had alienated their interest in those properties. For the reasons already mentioned, the plaintiffs are precluded from questioning the validity of those alienations. It is not open now to them to contend that the alienations in question are invalid. It is not necessary for us to decide in this case whether their successors can challenge those alienations. Suffice it to say that the plaintiffs are precluded from challenging those alienations.
The Honble Supreme Court of India in the said decision held that whether or not a dedication is complete, would naturally be a question of fact to be determined in each case on the terms of the relevant document. If the dedication in question was made under a document and in such a case it is always a matter of ascertaining the true intention of the parties, such an intention must be gathered on a fair and reasonable construction of the document considered as a whole.
19. In (2000) 10 SCC 376- State of W.B. v. Atis Chandra Sinha, the question arose before the Honble Supreme Court of India was that whether a particular property which was dedicated to the deity namely Sree Sree Iswar Radha Ballav Jiew Thakur, before the West Bengal Estates Acquisition Act, 1953 (for short the Act) was enacted would fall within the purview of Section 6(1)(i) of the said Act if the proceeds or income from the said land are not being used exclusively for the benefit of the deity. The Settlement Officer, Murshidabad in the said case, has held that the debuttar was not entitled to get the benefit of Section 6(1)(i) of the Act but was entitled to get the benefit of Section 16(1)(b)(vi) of the said Act.
20. The said decision was challenged before the Calcutta High Court and the learned Judge has dismissed the writ petition. The said order was the subject matter of challenge before the Division Bench of Calcutta High Court, which allowed the same. The State of West Bengal challenged the vires of the said order, has preferred an appeal before the Honble Supreme Court of India.
21. The Honble Supreme Court of India in the said decision held that in order to determine whether the property held is exclusively for religious or charitable purposes, what has to be seen is the terms of the trust deed or other documents by which the institution was established.
22. The Honble Supreme Court of India on the facts of the above said case, found that the property in question was meant to be used exclusively for religious or charitable purposes and consequently dismissed the appeal preferred by the State of West Bengal.
23. In the light of the ratio laid down in the above cited decisions rendered by the Honble Supreme Court of India and on facts, we have to see whether the properties in question are to be excluded from the purview of the Land Reforms Act?
24. The Honble Supreme Court of India in Civil Appeal No.444 of 1963 (Reported in AIR 1966 SC 653 (cited supra) which was filed by the predecessor in interest of the petitioner herein, has held that the instrument dated 10.1.1914 had created the specific endowment and dispute pertaining to 11 properties out of 17 properties given in Schedule B to the said document.
25. The Honble Supreme Court of India found that 11 properties given in Schedule B form an endowment. As regards the dispute as to the quantum of what was given in respect of them, the Honble Supreme Court of India found that the said endowment had been created in respect of the right to receive out of income of the properties, a sum of Rs.1590/- only, leaving it to the proprietaries who were owners of the properties and who are entitled to the management, in the exercise of the honest discretion to decrease or increase the amount slightly as they thought, the occasion requires. Citing the said reasons, the appeal preferred by the predecessor in interest of the writ petitioners herein was dismissed.
26. After the above said verdict delivered by the Honble Supreme Court of India, a document dated 13.6.1969 styled as declaration of trust came to be executed by (1) Radhakrishna Gade Rao Saheb, the writ petitioner herein and (2) Prathapasimha Gade Rao Saheb, (3) Mirasu Madhava Rao Gadige Rao Saheb, (4) Mirasu Visuladevi Gadge, (5) Gengabai Ammani, (6) Mirasu Thanibai Ammani. A perusal of the above said document would reveal that the persons who have executed the above said document had taken into consideration the above cited judgment of the Honble Supreme Court of India and took a decision to spend a sum of Rs.1590/- towards religious and charitable purpose and appropriate accounts in this regard to be maintained.
27. The learned Special Government Pleader in response to the submissions made by the learned senior counsel appearing for the petitioners would submit that as per the document dated 13.6.1969 only a sum of Rs.1590/- alone is to be spent and in this regard a charge has been created on the properties and in the light of the above cited Judgment of the Honble Supreme Court of India it cannot be said that a trust of religious and charitable nature has been created under the above said document and therefore, no interference is warranted by this Court.
28. We have carefully considered the submissions made by the learned senior counsel appearing for the petitioners and the learned Special Government Pleader.
29. The judgment of the Honble Supreme Court of India reported in AIR 1966 SC 653 (Civil appeal No.444 of 1963) makes it very clear that a specific endowment has been created under instrument dated 10.1.1914 in respect of 11 properties given in Schedule B to the said document. It has been further found that an endowment of the right to receive a sum of Rs.1590/- out of the income of the properties, had been created subject to the discretionary powers of the owners of the properties to make slight variation in the amounts mentioned.
30. A perusal of the document dated 10.1.1914 would reveal that the settlers had divested themselves of the right to receive certain portion of the income derives from the properties in question and in this regard a charge has been created on those properties. Therefore, what was created was only charge on the properties for meeting the expenses of the charities out of the income derived from the properties.
31. Subsequent to the above cited judgment of the Honble Supreme Court of India, a deed styled as declaration of trust dated 13.6.1969 came to be executed among 6 persons in which, the first petitioner herein is also one of the parties. It is useful to extract the following portion: –
VERNACULAR (TAMIL) PORTION DELETED
32. The said deed came into being in consonance with the Judgment of the Honble Supreme Court of India in AIR 1966 SC 653 (cited supra), wherein it has been held that an endowment had been created in respect of the right to receive out of income of the properties, a sum of Rs.1590/- only, subject to the discretionary power of the owners of the property to make a slight variation in the amounts mentioned.
33. A careful analysis of the documents dated 10.1.1914 and 13.6.1969 would lead to the only thing that the dedication is partial and which would ultimately lead to the conclusion that a trust has not been created and what was created was only a charge in favour of the charity and the properties continue to retain its original private and secular character. As held by the Honble Supreme Court of India in the decision reported in AIR 1957 SC 797 (cited supra) whether or not a dedication is complete would naturally be a question of fact to be determined in each case on the terms of the relevant document.
34. We, on a careful consideration and analysis and appreciation of the relevant materials placed before us, are of the considered opinion that no religious trust of public nature has been created under the deed dated 13.6.1969. That apart, the patta in respect of lands continue to stand in the name of the individuals and the same is also not in dispute. Consequently, the properties in question cannot be excluded from the purview of Section 2(i) (ii) of Tamil Nadu Land Reforms Act.
35. We find no error or illegality or error apparent on the face of the record in the impugned order passed by the first Respondent/Special Tribunal.
36. In the result, these writ petitions are dismissed and the common order dated 7.9.2000 passed by the first Respondent/Special Tribunal, is confirmed. However, in the facts and circumstances of the case, there will be no order as to costs. Consequently, connected W.P.M.Ps. are closed.
gr.
To
The Registrar, Tamil Nadu Land Reforms Special Appellate Tribunal,
Santhome, Chennai -600 004.
2. The Appellate Authority and District Revenue Officer, Land Tribunal,
Chennai 600 005.
3. The Assistant Commissioner, Land Reforms,
Mayiladuthurai