JUDGMENT
A. Ramamurthi, J.
1. The unsuccessful plaintiff in both the courts below is the appellant.
2. The case in brief is as follows:-
The plaintiff Trust filed a suit to direct the defendant to deliver possession of the property and to pay future mesne profits from the date of plaint till delivery of possession. The suit property originally belonged to Subba Pillai and he died leaving behind his only son Ramasamy Pillai. The said Ramasamy Pillai had three sons, namely, Rajagopala Pillai, Govindasamy Pillai and Mahadeva Pillai. Ramasamy Pillai and his sons divided their joint family properties under a registered partition deed dated 11.06.1919. Govindasamy Pillai is the father of the plaintiff. Rajagopala Pillai executed a registered Will while he was in a sound and disposing state of mind on 02.07.1956. Rajagopala Pillai and Mahadeva Pillai died without any issues; but Rajagopala Pillai was treating one Balasubramaniam as his foster son. By the Will dated 02.07.1956, Rajagopala Pillai gave properties to his relatives. Items 1 and 2 of A schedule property have been specifically set apart for a Religious Trust. Out of the income from these properties, payment of municipal tax and repairs have to be done and the balance of the income should be spent for pooja and Deepam of Gopalakrishnaswamy Picture worshipped by Rajagopala Pillai during his life time in the house bearing door No.43, Kaliyamman Koil Street, Kumbakonam. Part of the income also should be spent for Deeparathanai to all the Deities coming on the Arudhra Dharishanam Festival day every year. These properties cannot be alienated or encumbered in any manner. The foster son was given right to enjoy these properties and do the above Religious Trust mentioned in the Will. He had no power to alienate any property to any third party against the provision of the Will. But contrary to the terms of the Will, he had sold door No.43 to one Nagarajan, the elder brother of the plaintiff. Subsequently, the said Nagarajan had sold a portion of the property to the defendant under a registered sale deed dated 07.12.1965. The plaintiff is the lawful hereditary trustee and owner of Sri Karpaga Vinayakar Temple, one of the Trust mentioned in the partition deed. The plaintiff is also interested in the proper conduct of the Trust and he is also a worshipper of all the Deities. The other sons of Govindasamy Pillai are not taking any interest in the Trust. The sale deed dated 07.12.1965 is not valid in law and it is also not binding on the Trust and there is no necessity to seek for cancellation of sale deed. Hence the suit.
The defendant contended that the plaintiff had no locus standi to file the suit. No property has been set apart for any Religious Trust. Only from the income of items 1 and 2 of A schedule, Deeparathanai and pooja are provided for. No property as such is dedicated . The restrain on alienation is not of any importance in the circumstances of the case. The testator had himself encumbered the properties. The property purchased by Nagaraja Pillai was much improved upon and a portion of such property has been sold to the defendant for a valid consideration. The sales and improvements are bona fide and valid. He converted the mud walls into brick walls and spent a sum of Rs.10,000/=. The plaintiff is not a lawful or hereditary trustee of Vinayakar Temple. Without setting aside the alienation made by Balasubramaniam, the plaintiff is not entitled to any relief. The sale by Balasubramaniam and that by Nagarajan to this defendant are of the years 1960 and 1965 and they were for value. The defendant is in possession of the property from 1965 onwards. The claim is also barred by adverse possession. The rear portion of door No.43 is in possession of one Kalyani Ammal as owner and she has converted the building into a terraced one. Door No.42 is in possession and occupation of one Vijayaraghavan and the suit is bad for non-joinder of necessary parties.
The trial court framed 8 issues and on behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-36 were marked and on the side of the defendant, D.Ws.1 to 3 were examined and Exs.B-1 to B-11 were marked. The trial court dismissed the suit and aggrieved against this, the plaintiff preferred A.S.No.67 of 1989 on the file of District Court, Thanjavur and the learned Judge after hearing the parties, dismissed the appeal and aggrieved against this, the plaintiff has come forward with the present second appeal.
3. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration:
(1)Whether the courts are right in construing the recitals under Ex.A-2 Will dated 02.07.1956 to the effect that no dedication is made in favour of an endowment merely on the ground that surplus, if any after meeting the expenses of the religious acts was allowed to be utilised by the person in Management. (vide AIR 1967 page 175)
(2) Whether the testator under Ex.A-2 Will has mainly intended to reserve the substantial income from the suit properties for the purpose of performing the religious acts contemplated by him and allowed only an insignificant portion of the balance income if any to be taken by the person in management, are not the courts below erred in law in holding that no complete dedication is made by the testator in favour of an endowment ?
(3) Are not the courts below erred in law in holding that the presence of idol is necessary to constitute an endowment overlooking the fact that what is important is the place which creates a sense of reverence under the belief that God resides there or a edifice devoted to divine worship is contemplated ? (vide 1986 II MLJ 390)
4. Heard the learned counsel for the parties.
5. Gopalakrishnaswamy Picture Trust represented by Pakkirisamy filed the present suit for recovery of possession of the property from the defendant with future mesne profits from the date of plaint till delivery of possession. It is admitted that the suit property originally belonged to one Ramasamy Pillai and he had three sons, namely, Rajagopala Pillai, Govindasamy Pillai and Mahadeva Pillai. There was a registered partition on 11.06.1919 between Ramasamy Pillai and his three sons. It is also not in dispute that Rajagopala Pillai executed a registered Will on 02.07.1956 and in the Will, items 1 and 2 of A schedule properties have been specifically set apart for a religious trust. One R. Balasubramaniam was the foster son of Rajagopala Pillai. According to the plaintiff, the income from items 1 and 2 of A schedule properties have to be spent for payment of municipal tax, repairs to the properties and for performing pooja and Deepam for Gopalakrishnasamy Picture worshipped by Rajagopala Pillai during his life time in the house bearing door No.43 and part of the income should be spent for Deeparathanai to all the Deities coming on the Arudhra Dharisanam Festival Day every year. The properties cannot be alienated or encumbered and according to the appellant, there was permanent dedication of the property to the Trust. This being so, the foster son without any power to alienate the property, had sold door No.43 to one Nagarajan as early as 1960 and subsequently the said Nagarajan sold a portion of the property bearing door No.43 to the defendant under a registered sale deed dated 07.12.1965. The two sale deeds are void and not binding on the Trust and hence, the plaintiff claimed to be the worshipper of the Picture in question as well as the Deities, filed the suit seeking the aforesaid reliefs.
6. Per contra, the learned counsel for the defendant contended that no Trust has been created and there is no permanent dedication or partial dedication of any property. There was only a charge in respect of the property to do certain obligations and it is also carried on. There is a specific recital in the document itself that the balance of money can be spent by Balasubramaniam as well as his legal heirs. Moreover, the plaintiff has no locus standi to file the suit because he was not a trustee of the alleged trust. The rear portion of door No.43 is in the possession of one Kalyani Ammal and she had converted the building into a terraced one and door No.42 is in the possession of one Vijayaraghavan and both of them were not impleaded as parties to the suit. Moreover, the transaction took place as early as 1960 and 1965 and the defendant is in possession and enjoyment of the property since 1965and on this ground also, the suit filed by the plaintiff is barred by time.
7. The trial court as well as the lower appellate court rejected the case of the plaintiff. The learned counsel for the appellant contended that the courts below ought to have seen that under Ex.A-2 Will, the testator had specifically dedicated the suit property for the purpose of performing certain religious activities and specifically stated that only if any balance of income is there, the trustee has to take the same for his own use and this could not be in any way affect the dedication already made by the testator. The courts below ought to have seen that the question whether a document amounts to an absolute dedication of property or whether it is merely a charge on the property cannot be decided purely on a consideration as to who takes the surplus income after meeting the expenses of the religious acts and charities, but has to be decided on a conspectus of all the terms thereof in the light of the numerous circumstances. In order to find out whether any endowment is absolute or partial primarily depends on the terms of the grant. If there is an ambiguity in the terms of the document, the intention of the founder has to be carefully gathered from the scheme and language of the grant.
8. The learned counsel for the appellant strenuously contended that to form a Trust, it is not necessary that there should be an idol and even in a case of the picture, the trust can be created. He also relied on R.Srinivasan ..vs.. S.P.krishnamoorthy Sarma and others (1978(I) MLJ 452) for the proposition that idol of Sriramachandramoorthi installed in a village, Trust created by a deed of endowment and provision made for management of the Trust.
9. Reliance is also placed on T.V.Durairajulu Naidu ..vs.. The Commissioner, HR & CE (Admn) Dept., Madras (1986 (II) MLJ Reports 390) that the presence of an idol is unnecessary. It is a faith that it is the abode of God that matters. It is that compelling faith, that by offering prayers, one will be the object of bounty that is important.
10. It has been held in Pichai ..vs.. The Commissioner, HR & CE that the definition of “temple” is so comprehensive as to include any place irrespective of installation of idols or a building or tower, dwajasthambham or a stupi. It is not necessary in all cases that the presence of idols is an essential requisite to bring the place within the definition of “temple” under the Act.
11. The learned counsel for the appellant also relied on M.Dasaratharamki Reddi ..vs.. D.Subba Rao (AIR 1957 SC 797) relating to dedication of property and it reads as follows:
“Whether or not dedication is complete would naturally be a question of fact to be determined in each case in the light of the material terms used in the document. In such cases it is always a matter of ascertaining the true intention of the parties; it is obvious that such intention must be gathered on a fair and reasonable construction of the document considered as a whole. The use of the word “trust” or “trustee” is no doubt of some help in determining such intention; but the mere use of such words cannot be treated as decisive of the matter. The answer to the questions whether the private title over the property was intended to be completely extinguished or whether the title in regard to the property was intended to be completely transferred to the charity can be found not by concentrating on the significance of the use of the word “trustee” or “trust” alone but by gathering the true intent of the document considered as a whole.
If the income of the property is substantially intended to be used for the purpose of the 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 public 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.
It is naturally difficult to lay down a general rule for the solution of the problem. Each case must be considered on its facts and the intention of the parties must be determined on reading the document as a whole”.
The same view has been reiterated in Vadivelu Mudaliar ..vs.. N.S.Rajabada , S.S.Pillai ..vs.. K.S.Pillai and Sappani Mohd.Mohideen ..vs.. R.V.Sethusubramania Pillai (1975(I) MLJ (SC) 25 also.
12. The learned counsel for the appellant relied on Sankaranarayanan Iyer ..vs.. Poovananathaswami Temple, Koilpatti (1949 (II) MLJ 171 (Full Bench) as follows:
“So long as an action for recovery of property belonging to a trust held adversely by a stranger is for the benefit of the real owner, namely, the idol or the mutt, and the person bringing the action is the only person who is in the management of the affairs of the idol or the mutt for the time being, and is therefore its de facto trustee, there is no reason why such person should not be allowed to maintain the action on behalf of the idol or the mutt”.
13. It has been held in Manikka Narasimhachari ..vs.. Ramasubbier (1970 (I) MLJ 337) wherein it was stated as follows:
“When there is a wrongful alienation not binding upon the trust and when the alienating trustee still functions as a trustee and has not been removed, it will open to the worshippers or the beneficiaries to maintain a suit for possession of the trust property after declaring the alienation invalid; when such possession is asked for, the decree for possession will be in favour of the alienating trustee himself”.
14. Reliance is also placed on Amir Jan ..vs.. Shaik Sulaiman Sahib (1968 (II) MLJ 559) that there is no doubt that even a worshipper will be entitled to maintain a suit for possession of a trust property.
15. It is therefore clear from the aforesaid decisions that even a worshipper is entitled to file a suit and as such, there is no difficulty in coming to the conclusion that the suit is maintainable under law. The only question that has to be considered is whether there was permanent dedication of the property or partial dedication of the property or only a charge was created to do their religious activities mentioned in the Will. The intention of the testator also has to be gathered from the various circumstances. It is also clear from Article 92 of the Limitation Act under Part VIII, suits relating to Trusts and Trust property. To recover possession of immovable property conveyed or bequeathed in trust and afterwards transferred by the trustee for a valuable consideration, the period of limitation is 12 years and the time will begin to run when the transfer becomes known to the plaintiff. If that is taken into consideration, it is manifestly clear that in any event, the suit filed by the plaintiff also would be barred by time. The first sale transaction took place in the year 1960 and the defendant purchased the property in the year 1965 for a valid consideration. The suit was filed only on 18.03.1985. It is not the case of the plaintiff that he was not aware of the sale transaction. Now, the suit has been filed after the lapse of 20 years and on this ground also, the suit has to necessarily fail.
16. Even assuming that a Trust has been created relating to Gopalakrishnaswamy Picture and pooja has to be performed on particular days, it has to be established by the plaintiff that there was absolute dedication of the property so as to prevent the other persons from alienating the same. There is a recital in the Will itself that after meeting the expenses towards pooja, the balance of amount has to be enjoyed by Balasubramaniam and his heirs. There is no bar under this document preventing him from alienating the same. If the intention of the donor and the purpose for which the income has to be spent and the balance has to be enjoyed by the donee are taken into consideration, at best, it can be concluded that only a charge has been created and there is absolutely no material to come to a conclusion that there was absolute dedication of the property so as to conclude that the sale transaction is a void one. Admittedly, the plaintiff has not filed the suit to cancel the sale deeds, but it is stated that as the sale transaction is a void one, it is not necessary to cancel the same. However it may be, both the courts below have given a concurrent finding that the plaintiff has failed to establish that there was absolute dedication of the property and under these circumstances, the finding arrived at by the courts below is based on legal evidence and apart from that, the suit is also barred by time. There is no reason to interfere with the same.
17. For the reasons stated above, the Second Appeal fails and is dismissed. No costs.