IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:08.02.2008 CORAM THE HONOURABLE Mr. JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C. R. P. (NPD) No.378 of 2008 and M.P.No.1 of 2008 1.V.Alagiri 2. V.Maran .... Petitioners Vs. K.Thillai Vinayagam ... Respondent Civil Revision Petition is filed under Section 25 of the Tamil Nadu Buildings(Lease and Rent Control) Act 1960 as amended by Act 23/1973 and 01/1980), against the Judgment and decree dated 10.8.2007 in RCA No.8 of 2003 on the file of the Rent Control Appellate Authority(Sub Court) Thiruvarur against the Judgment and Decree dated 31.3.2002 made in R.C.O.P.No. 8 of 2001 on the file of the Court of Rent Controller (District Munsif Court) Thiruvarur. For Petitioners : : Mr. Srinath Sridevan,Advocate For respondent : : Mr.P.K.Sivasubramanian,Advocate- O R D E R
Heard Mr.Srinath Sridevan, the learned counsel appearing for the revision petitioners and Mr.P.K.Sivasubramanian, the learned counsel appearing for the respondent and considered their respective submissions.
2. This revision has been directed against the Judgement in RCA.No.8 of 2003 on the file of Rent Control Appellate Authority(Subordinate Judge)Thiruvarur which had arisen out of an order in R.C.O.P.No.8 of 2001 on the file of Rent Controller(District Munsif) Thiruvarur.
3. The learned counsel appearing for the revision petitioners would focus the attention of this court to two points. First being, the rent control original petition filed by the landlord under R.C.O.P.8 of 2001 itself is not maintainable since the petition schedule property belongs to a public trust. For this proposition of law, the learned counsel appearing for the revision petitioners would rely on Ex A1 Trust deed dated 16.5.1943 executed by the grand father of the respondent/landlord viz., Sabapathy Mudaliar. The learned counsel appearing for the revision petitioners would rely on a decision reported in M.Krishnaswamy-vs- Sadras Venkatarama Chetty Charities under the Management of S.K.P.D. And Charities represented by its Hereditary Sharmakartha and Trustees and others(1996 MLJ 23) would contend that After the dominant dedication is in favour of public charity then, the document is to be construed only as a Trust deed of public in nature. The dedication made under the document Ex A30 dated 26.10.1939 relied on by the plaintiff in that suit was that the Trust deed had created the Trust only for the purpose of performing certain charities from out of the income derived from his properties. Under Ex A30 Trust deed, he had settled the properties on him till his life time giving liberty to him to spend the income derived from his properties for his maintenance and after his life time, the trustees appointed under ExA30 shall utilize the net proceeds of income for the following purposes. a) Payment to each of Rs.2,000/- for the marriage expenses of daughters of his elder son, daughter of his younger ;b) Payment of Rs.15/- per mensum to his elder daughter and Rs 15/- per mensum towards his younger daughter in their life time. He has also attached a rider clause by saying that in case if his daughter’s get any share in terms No.582 then they will be entitled to allowance; c) Payment of Rs.10/- per mensum to his sister for her life time for the support of herself and her husband and Rs.8/- per mensum to the Bandaram Subbaiah Chetty, if he survives his wife;d) for paying school or college fees or cost of books to Arya Vysya Student of both sexes of Madras preference being given to residents of Triplicane and then to girls who are residents of Madras, outside Triplicane, provided that they are really needy in the opinion of such Trustees.
It was contended by the defendant that the said Ex A30 Trust deed is not a public charity but it is only a private trust. Negatived the contention raised by the respondent, it has been held that Ex A30 is a public Trust , this Court has held in the said ratio as follows:
“The contention of the learned counsel for the appellant is that in view of the abovesaid clauses(a)(b) and (c), the Trust should be construed only as private Charitable Trust . But, in construing such a document, the primary or dominant purpose of the settlor in creating such a trust has only to be seen, in order to find out whether it is a public charitable trust or private charitable trust(vide:Saraswathi Ammal-v- Rajagopal Ammal(1953)2 M.L.J.803: A.I.R.1953 S.C.491:1954 SCA,1017:1953 S.C.J.714: 1954 SCR 277:67 L.W.7: 1954 M.W.N.1 and Commissioner of Income Tax -v- Andhra Chamber of Commerce, 55 I.T.R.722. It is clear that the primary or dominant purpose of the abovesaid deed is to create a Trust for the educational purposes mentioned in clause(d) above for the benefit of Arya Vysya Students of Madras, who are indeed a section of public. It is also settled law that when a section of the public is thus to benefit bythe Trust, it can be termed only as Public Trust. . . . . . . . . . .No doubt, as already indicated, clauses(a) and(b) provide for some payments to be made to certain relatives of the settlor. But, even there, it is provided that in the event of the settlor dying after making relevant provisions as to the said relatives, the Trustees need not make those payments to the said relatives. In so far as clause(c) is concerned, it only says that a small sum of Rs10/- per mensem has to b e paid to the said sister of settlor and that too for her life time only for the support of herself and her husband Bandaram Subbiah and that another small sum of Rs.8/- per mensem has to be paid to the said husband should he survive his wife. These small provisions by themselves will not make the Trust a private Trust. Further, it must be noted that insofar as the above said clause(d) no amount as such has been prescribed regarding the quantum that has to be spent towards the said charities(the above referred to education purposes). The properties dedicated are three valuable house properties in Madras. Therefore, it goes without saying that a substantial portion of the income of those properties would go only to the above said educational purposes, benefitting a section of the public.”
Only on that ground Ex A30 was held to be a public Trust deed.
4. The learned counsel appearing for the revision petitioners would rely on a decision reported in Pazhaniyandi-v-Kalyanasundaram(1988 (1) MLJ 174)for the same proposition of law. The facts of the above said ratio are as follows:
“One Sampoorna Gurukal who created a Trust as far back as 13.3.1917. Under said deed of Trust, he had endowed of his properties for the purpose of residence of persons doing Pooja to Osri Prpathigridhaeswranswami and SriVaidhyanathaswami at Tittakudi and for performance of other charitable objects from and out of the income from these properties. The respondent who is an Archaka of the temple filed a Rent Control Original Petition under Sections 10(2)(1), 10(2)(ii)(a) and 14(1) of the Tamil Nadu Buildings( Lease and Rent Control) Act 18 of 1960 claiming possession on the two grounds, namely, that the tenant was a wilful defaulter not having paid rent for the period from 1.10.1976 to 6.3.1980 and that the premises was needed Bona fide for demolition and reconstruction. It was contended on behalf of the tenant that the premises were exempted from the operation of the Rent Control Act by G.O.Ms.No.2000, Home , dated 16.8.1976, by which the Government had exempted all the buildings owned by the Hindu, Christian and Muslim religious public trusts and public charitable trusts from all the provisions. The learned Rent Controller had allowed the petition on the ground of wilful default and has further held that trust created by the said Sampoorna Gurukal was not a public charitable Trust. On appeal, the rent control appellate authority has also confirmed the findings of the learned rent Controller. Against which the revision before this Court. Before this Court, it was contended that the rent control original petition itself is not maintainable as per G.O.Ms.No.2000, Home dated 16.8.1976 since the trust created by Sampoorna Gurukkal was a public trust.
While deciding the question whether the impugned deed is a deed of public trust or the trust created by Sampoorna Gurukkal was only a private trust. This Court has observed as follows:
” The basic question which, however, falls for consideration in this case is whether the premises are exempt from the operation of the Rent Control Act in view of the recital in the Trust Deed. There is nothing in the Trust Deed to show that it was ever intended by the settlor to make provision for income of the Archakas by permitting them to let out the property. If that was the object, undoubtedly the Trust would have become a private Trust. The purposes which are set out in the Trust Deed show that the endowment is for the purpose of residence of persons doing pooja at the temples mentioned therein and also for the purpose of other charitable objects for which expenses are to be met from and out the income of the Trust property.. . . . . . . Religious endowments are either public or private. In a public endowment the dedication is for the use or benefit of the public. The essential distinction between a public, and a private endowment is that in the former the beneficial interest is vested in an uncertain and a fluctuating body of persons, either the public at large or some consideration portion of it answering a particular description. In a private endowment the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained . The fact that the fluctuating and uncertain body of persons is a Section of the public following a particular religious faith or is only a set of persons of a certain religious persuasion would not make it a private endowment. The essence of a public endowment consists in its being dedicated to the public and in the absence of any document creating the endowment, long user is the material factor from which an inference of dedication may arise. Beside user by the public, conduct of the founder and his descendants is also relevant, and if they in fact hold out the temple to be a public one a very strong presumption of dedication would arise. When property is set apart for the worship of a family God in which the public are not interested , the endowment is a private one. The beneficiaries of the endowment in the present case are not the members of the family of the settlor. The real beneficiaries are the idols of the two temples for whose Archakas the property has been settled party. Provisions has also been made for utilising the property for charitable purposes. The recitals, in my view, indicated that the endowment was a public endowment and the Trust was clearly a public charitable Trust. Having regard to G.o.ms.No.2000, Home,
dated 16.8.1976, it is clear that both the Courts were in error in assuming jurisdiction to decide the petition for eviction filed by the landlord. In the view which I have taken, it is unnecessary to go into the merits of the findings recorded with regard to the claim that the tenant was a wilful defaulter or that the building was needed for demolition and reconstruction.”
5. Now we have to consider whether the intention of the settlor under Ex A1 was to create a trust of public in nature or it is only a private trust. Relevant recitals in Ex A1 reads as follows:
“,jdoapy; icoa{ypy; tpthpf;fg;gl;oUf;fpwJkhd Xl;Ltpy;iy tPL ico brhj;Jf;fis vd;dhy; ehsJ tiuapy; gpujp g’;Fdp kP 1 c Kjy; itfhrp kP 30 c tiuapy; cs;s K:d;W khj’;fspYk; ehd; elj;jpbfhz;L tUk; jz;zPh; ge;jy; jh;kj;ij jtwhky; vg;bghGJk; elj;jp tu ntz;oaij cj;njrpj;J jh;k brhj;Jf;fshf Vw;gLj;jp itj;jpUf;fpnwd; ico brhj;Jf;fis vd; 2tJ Fkhwd; fhh;j;jpnfa Kjypahh;; ehsJ njjp Kjy; fpua tpf;ua’;fs; Kjypa vt;tpj guhjPd’;fSk; bra;a yhaf;Fk;ghj;a Kkd;dpapy; mDgtpj;J bfhz;L mjpypUe;J fpilf;Fk;thlif tUk; goapypUe;J tPl;Lthpia brYj;jp tpl;Lk; tPl;L hpg;ngh; Kjypa rpyt[fis bra;J tpl;Lk; gpujp , g’;Fdp rpj;jpiu itfhrp ,e;j K:d;W khj’;fspYk; khjk; 1f;F U:gha; Kg;gJ Kjy; ehw;gJ tiuapy; rpyt[ bra;J ico jz;zPh; ge;jy; jh;kj;ij Fiw ,y;yhky; rhptu elj;jp tpl;L ico tUk; goapy; kpFjp Vw;gl;lhy; Vw;gLtij jdf;nf vLj;J bfhs;s ntz;oaJ fhh;j;jpnfa KjypahUf;Fk; o/vd; rghgjp Kjypahh;f;F gpwF mtd; K:j;j Fkhud; jpy;iy ehaf;fDk; mtDf;Fg; gpwF mtd; K:j;j FkhuDkhf re;jjp guk;giuaha; ,j;jh;kj;ij elj;jp tuntz;oaJ ico jh;kj;ij rhptu elj;jhknyh g{uht[k; elj;jhknyh nky; brhy;ypath;fspy; vtnuDk; tpl;L tpl;lhy; vd; K[:j;j Fkhud; bjcopZK:h;j;jpa[k; mtDf;Fg; gpwF mtd; K:j;j FkhuDk; Kiwna mJ tpcoakha; fz;of;fnth ,ju ghpfhu’;fs; njlnth ghj;a Kz;nl jtpu kw;w vth;fSf;Fk; vd;dhYk; vt;tpj ghj;aKk; fpilahJ xUf;fhy; bja;t r’;fy;gj;jpdhy; ico fhh;j;jpnfadpd; tk;r guk;giuapy; nky; fz;l go thh;Rfs; ,y;yhky; ngha; tpl;lhy; icoahUf;F beU’;fpa mde;ju thh;R ghj;jpaKs;sth;fspy; K:j;jtUk; mtUf;F gpwF mth; K:j;j FkhuDk; ico thpirg; gotk;! guk;giuaha; me;j chpikia Vj;Jf;bfhs;sntz;oaJ moapy; cooa{ypy; tpthpf;fg;gl;oUf;Fk; brhj;Jf;fis ico jh;kj;Jf;bfd;nw Vw;gLj;jp itf;fg;gl;oUg;gjhy; mitfis ehsJ njjpapnyna vd; Fkhud; fhh;j;jpnfa Kjypahh; trk; tpl;Ltpl;nld; ico epge;jidfSf;F tpnuhjkha; moapy; cooa{ypy; fhzg;gl;oUf;Fk; brhj;Jf;fis gw;wpahuhYk; vt;tpj guhjPd’;fSk; Vw;gLj;jg;gl;lhy; mitfs; rl;lg;go bry;Ygoa[s;sjy;y.1tJ mapl;l brhj;jpy; nky; gf;fKs;s U:k;fspy; tlf;F filrpapy; bjw;F tPjpapy; Kd; gf;fkhf ,Uf;fpw U:kpy; nkny Fwpg;gpl;l jz;zPh; ge;jiy nky; fz;l go g’;Fdp rpj;jpiu itfhrp khj’;fspy; itj;J elj;jp tu ntz;oaJ me;j K:d;W khj’;fspYk; ico U:ik ahUf;Fk; thliff;F tplf;TlhJ ghf;fp xd;gJ khj’;fSf;F kl;oy; thliff;F bfhLf;fyhk; kw;w vy;yh fl;ol’;fis[ak; ve;j fhyKk; thliff;F bfhLf;fyhk; 1tJ mapl;l brhj;jpd; fPH; epyg;gFjp , 1f;F Vw;gl;l U:10/0/0/a[k; jpahf uh$!;thkp nfhtpy; uh$h’;fl;lis ahUf;F gpujptUcok; bfhLj;J tuntz;oaJnkny fz;l jz;zPh; ge;jYf;F _jpahfuh$h jz;zPh; ge;jy; vd;W bgah; itj;J elj;jp tu ntz;oaJ/ fld; vf;fhyKk; ePh; nkhuhfnt ,Ue;J tuntz;oaJ”
From the reading of the above said recitals in Ex A1 will clearly go to show that the purpose of dedication was made only for three months in a year ie., Pankuni, Chitrai and Vaikasi ie., to be provided drinking water to the public. It has been further clearly stated that the expenses shall not exceed above Rs.40/-. The very important recital in Ex A1 is that the surplus income derived from the property has to be taken by his son Karthikeyan and after him, his son Thillai Naicker has to succeed income derived from the property. So only for the limited purpose for conducting “Thaneer Panthal” only for the limited period of Tamil Month of Pankuni, Chitrai and Vaikasi, the dedication has been made. If the intention of the creator of the Trust would be in public in nature than he would have dedicated the entire income derived from the property only for the purpose of conducting Thaneer Panthal but the recital would read that only for a limited period of three months in a year from out of the income derived from the property schedule to Ex A1 deed which is to be utilized for the purpose of conducting Thaneer Panthal that too without exceeding Rs.40/-. Under such circumstances, as rightly held by the Courts below Ex A1 is to be considered only as a Trust of Private in nature and not a public one.
6.The next point urged before this Court by the learned counsel appearing for the revision petitioners is that the father of the petitioner had filed a eviction petition of similar nature in the year 1977 as R.C.O.P.No.54 of 1977 only for the purpose of demolition and reconstruction under Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control)Act(hereinafter referred to “the said Act”) and the same was dismissed by the learned Rent Controller and revision preferred against the said order in R.C.O.P.No.54 of 1977 was also dismissed and hence the present petition filed by the respondent/landlord is hit by Section 19 of the said Act under the principles of res judicata. The said point was elaborately discussed by the learned Rent Control Appellate Authority in his Judgment at paragraph 34(page 63 in the typed set of papers), the previous petition for eviction was filed by the father of the respondent herein/landlord but there was no evidence let in before the Court to show that the landlord had sufficient funds to demolish and reconstruct the building. But before the Rent Controller, the present landlord has produced Exs A2 to A5 to show that he had filed building plan before the Municipality and got plan approval and that in order to construct new building, he had obtained licence for bricklin. Further there was no plea raised by the revision petitioner in his counter filed in R.C.O.P.No.8 of 2001 that the present landlord had no sufficient funds to construct the new building.
7. As rightly observed by the learned Rent Control Appellate Authority, there is no embargo or impediment in Ex A1 from constructing a new building, after demolition of the old one. Both the courts below have concurrently held that the respondent herein/landlord is entitled to an order of eviction under Section 14(1)(b) of the said Act. While exercising the revisional power, I am of the view that this Court cannot interfere with the concurrent findings of the Courts below unless it is shown that the findings of
A.C.ARUMUGAPERUMAL ADITYAN,J
the Courts below is perverse in nature and the findings have been given not on the basis of the evidence. There is absolutely no material on record to show that the findings of the Rent Control Appellate Authority in R.C.A.No.8 of 2003 to show that the Judgment was perverse in nature and the findings was given not on the basis of the evidence.
8.In fine, the civil revision petition is dismissed confirming the Judgment passed in R.C.A.No.8 of 2003 on the file of the learned Rent Control Appellate Authority(Subordinate Judge) Thiruvarur. The tenants are directed to vacate the premises and hand over the same to the landlord within a period of one month. No costs. Consequently, connected M.P.No.1 of 2008 is also dismissed.
08.02.2008
Index:yes
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sg
To
1.The Rent Control Appellate Authority/Sub Court, Tiruvarur
2. The Section Officer, V.R.Section, High Court, Madras. C.R.P.(NPD)No.378/2008
05.02.2008