JUDGMENT
S. Jagadeesan, J.
1. The plaintiffs in C.S.No.273 of 1994 are the appellants herein. The suit was filed for (i) declaration that the appellant temple is the absolute owner of the property described in the schedule of the plaint and for consequential permanent injunction against the respondents 1 to 3 restraining them from dealing with the property in any manner, (ii) directing the respondents 1 to 3 to submit the accounts for the collection of rents from the suit property from 17.11.1993 till the date of delivery of possession, and (iii) directing the respondents to quit and deliver the vacant possession of the property.
2. The claim of the appellants is that originally the suit property belonged to one Ramalinga Chettiar. He executed a trust deed on 13.2.1919, which is marked as Ex.P1 in the suit. Under the said trust deed, the owner of the property Ramalinga Chettiar appointed 5 persons as trustees with a direction to distribute the income from out of the suit property as follows:
i. to provide for the daily poojas for Kasi Viswanathan; ii.to pay Rs.5/- for daily neivethiyam; iii.to pay Rs.10/- p.m. till the life time of the author of the trust; iv.thereafter to pay Rs.10/- p.m. till the life time of his wife; v.thereafter to pay Rs.10/- p.m. to his daughter Ethirajammal till her life time.
The trust deed further provides for the absolute vesting of the property with the said temple after the death of the Ethirajammal, daughter of the owner of the property. As per the recitals in the trust deed, there is an absolute vesting of the property with the suit temple. However, the appellants came to know about the fact of the trust deed only through the tenant and on verification they found that the first defendant/first respondent herein obtained permission from this Court in C.S.No.79 of 1992 to sell the suit property and sold the same to the respondents 2 and 3 under the sale deed dated 17.11.1993. The first respondent has no authority to seek permission from this Court either on behalf of the trust or on behalf of the temple and hence, the permission granted by this Court will not bind the plaintiffs. Hence, the suit was filed.
3. The first defendant/first respondent herein contested the suit stating that, he is a legal heir of one of the original trustees appointed by the owner of the property; he was entrusted with the work of disbursement of the income from the suit property as per the terms of the trust deed. As the income from the property is too low, in order to augment the income he sought the permission of this Court to sell the property and to invest the same; and that the temple cannot claim any title since there is no absolute vesting of the suit property with the temple.
4. On the above pleadings, the parties let in oral and documentary evidence.
5. The learned Judge after careful consideration of both the oral and documentary evidence has dismissed the suit finding that there is no absolute vesting of the suit property with the temple. The property is vested with the trust and the first respondent as the heir of one of the trustees appointed by the original owner of the property is entitled to manage the trust and accordingly, the permission obtained by him to sell the property is valid. As against the said judgment and decree of the learned Judge dated 28.2.2001, the present appeal has been filed.
6. Though the first respondent / first defendant is represented by counsel, there was no representation when the appeal was heard. The respondents 2 and 3 / defendants 2 and 3, the purchasers, did not represent either in person or through counsel. Of the remaining respondents 4 to 9, the tenants in the suit property, only 6th respondent was represented through counsel. Others remained exparte. The 10th respondent is one of the trustees of the appellant’s temple. Since he did not join to file the suit he was impleaded as defendant/respondent.
7. The only contention of the learned counsel for the appellants is that a reading of the trust deed, marked as Ex.P1, clearly reveals that the intention of the author of the trust is that there is an absolute vesting of the property with the temple after the death of his daughter. When in unequivocal terms the author of the trust specified the vesting of the property with the temple, the finding of the learned Judge cannot be sustained.
8. The question for consideration by us is ‘whether the deed of trust, marked as Ex.P1, makes an absolute vesting of the property with the suit temple or whether the trustees are empowered to manage the property and disburse the income from out of the suit property?’
9. The learned Judge has extracted the recitals in the trust deed in paragraph 8 of his judgment. It is unnecessary to re-extract the same in full. We confine with the relevant portion of the recitals. As already pointed out, the trustees were directed to discharge the following obligations under the trust deed:
i. to provide for the daily poojas for Kasi Viswanathan;
ii. to pay Rs.5/- for daily neivethiyam;
iii. to pay Rs.10/- p.m. till the life time of
the author of the trust;
iv. thereafter to pay Rs.10/- p.m. till the
life time of his wife;
v. thereafter to pay Rs.10/- p.m. to his
daughter Ethirajammal till her life time.
There is no dispute that the author of the trust died in the year 1925. His wife died in the year 1927, and his daughter Ethirajammal died on 22.4.1984. Hence, only after the death of the said daughter, the disposal of the property comes in question.
10. The relevant recital in the deed is as follows:
"vd; Fkhuj;jpw;F gpw;fhyk; nkw;go brhj;ij nkw;go rd;djpf;nf xg;g[tpj;J mjpy; tug;gl;l ahj;jpiuthrpfSf;F gpurhj tpdpnahf if';fhpaj;ij elj;jp tu ntz;oaJ."
From the above recital, there cannot be any doubt that the author of the trust wanted the property to be vested with the temple after the death of his daughter. The learned Judge made a subtle distinction stating that the assessment of the suit property stands in the name of Sri Selva Vinayagar Koil Trust and not in the name of the idol Selva Vinayagar. When the temple is managed by a trust, or if the temple was constructed and maintained by a trust, naturally, it will be represented by the trust and not the idol. Even assuming that it should be in the name of the idol, no assessment will be made in the name of idol alone. It will be in the name of the idol and either temple or koil. For example, if the idol is Lord Vinayaka then the temple is known as ‘Arulmighu Vinayakar Thirukoil’ and the documents will stand in the name of the temple alone. It cannot be in the name of Vinayakar or Kasiviswanathan, as the case may be. When the assessment is to be made in the name of the idol and either temple or koil, naturally, whomsoever representing the said temple or whomsoever is managing the said temple will be the person who is entitled to get the assessment in his or their names and thereby entitled for the management of the properties endowed in the name of the idol.
11. Virtually, the learned Judge has failed to consider the absolute vesting of the property with the temple ‘sannidhi’. The word ‘sannidhi’ is explained as follows in Winslow’s A comprehensive Tamil and English Dictionary:
“rd;djp – The presence of the deity, guru, or some great person,jpUKfk;. Sannidhi – A temple – jpUf;nfhapy;”
Hence the word ‘Sannidhi’ also refers the temple.
12. Assuming that the author of the trust has got faith only with Thiru Kasi Viswanatharswami situated within the Selva Vinayagar temple, and the word ‘sannidhi’ refers to Lord Kasi Viswanatharswami, even then in our view the suit property will vest with Lord Kasi Viswanatharswami, which forms part of the appellant temple. However, the vesting cannot be with anybody else other than the appellant temple or at least in the name of Lord Kasi Viswanatharswami. The learned Judge here again drew a distinction stating that the vesting could not be with the main temple, i.e., the appellant, because the faith of the author is only with Lord Kasi Viswanatharswami. As already stated, even if it is Lord Kasi Viswanatharswami, then also the property should vest with the said idol, or otherwise with the main temple, i.e., Selva Vinayagar.
13. From the recital of the trust deed, marked as Ex.P1, there is a total vesting of the property with the suit temple. Even if it is not with the suit temple, the vesting shall be with Lord Kasi Viswanatharswami, which makes it clear that the first respondent has no right or title over the property as a trustee. Virtually, after the death of the daughter of the author of the trust, the trustees will be no where in the picture with regard to the management of the trust property. It is their bounden duty to hand-over the possession of the property to the temple for the future management. But, neither the trustees mentioned in the trust deed, marked as Ex.P1, nor their representatives have done so. It may also be significant to note that the trust deed do not provide for any succession of the trustees or any other mode of management of the trust subsequent to death of the daughter of the author of the trust.
14. The first respondent claiming to be a legal heir of one of the trustees had filed the suit C.S.No.79 of 1992 without impleading anyone and sought the permission of the Court to sell the property. A perusal of the judgment of this Court also does not make it clear as to how the first respondent is entitled to claim relief as a trustee who is in the management of the trust. Unless it is established that the first respondent was at least in the management of the trust as on the date of the filing of the suit, the suit filed by him is not maintainable. As stated already, when the author of the trust did not provide for any successors in interest of the trustees, it can be taken for granted that the first respondent was in management of the trust properties. In the absence of any such record, we have no hesitation to come to the conclusion that the suit filed by the first respondent in C.S.No.79 of 1992 is nothing but a claim over the property. When the appellant temple was not impleaded as a party to the suit C.S.No.79 of 1992, the decree therein cannot bind the appellants herein. Since we find that there is an absolute vesting of the property with the appellant temple, as per the recitals in Ex.P1, trust deed, we are unable to agree with the view taken by the learned Judge as well as the reasoning given by him.
15. Though the first respondent had deposited the sale consideration of Rs.3,75,000/- in the name of the Registrar of this Court, there is no evidence to establish that the first respondent is still discharging his functions as a trustee by withdrawing the accrued interest. In fact, the learned Judge in paragraph 19 of his judgment had granted permission to the first respondent to draw interest and to perform the poojas and the rites mentioned in the trust deed. When the recitals in the trust deed do not confer any such power to anyone of the trustees or other legal heirs, after the death of the daughter of the author of the trust, such conferment of powers on the first respondent cannot be sustained.
16. It may be pertinent to note that the respondents 2 and 3 remained absent. If really they have purchased the properties and they are in receipt of the rents, they are expected to be present in the Court to defend their right. Their absence itself throws some doubt with regard to the transaction between the first respondent on one side and the respondents 2 and 3. Perhaps the respondents 2 and 3 may be benami for the first respondent.
17. So far as the respondents 4 to 9 who are the tenants are concerned, the relief sought for by the appellant regarding delivery of possession cannot be granted. If the tenants are entitled for any tenancy rights or benefits, that cannot be taken away in this suit. It is open to the appellant to initiate separate proceedings to recover the possession from the tenants, i.e., respondents 4 to 9.
18. For the reasons stated above, the judgment and decree of the learned Judge dated 28.2.2001 in C.S.No.273 of 1994 is liable to be set aside and accordingly, the same is set aside and the appeal is partly allowed. The suit is decreed so far as reliefs (i) and (ii) in the plaint are concerned. So far as the relief (iii) in the plaint is concerned, the suit is dismissed with liberty to the appellants to initiate separate proceedings. It is open to the respondents 1 to 3 to withdraw the amount of Rs.3,75,000/- which is said to be lying in deposit with the Registry after rendering the accounts by them and settlement of the same. No costs. Consequently, connected C.M.P.Nos.18177 and 18178 of 2001 are closed.