Arulmighu Padaleeswar Thirukoil v. M. Kumar

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.12.2024 CORAM: THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI and C.M.P.No. 4673 of 2024 S.A.No. 141 of 2024 Arulmighu Padaleeswar Thirukoil, by its Executive Officer

... Appellant Vs.

¶1M.Kumar

¶2The Joint-II Sub-Registrar, Registrar's Office, Sankara Naidu Street, Thirupathiripuliyur, Cuddalore-2.

¶3The Tahsildar, Cuddalore. .. Respondents PRAYER : Second Appeal filed under Section 100 of Code of Civil Procedure, praying to set aside the judgment and decree dated 16.10.2023 passed in A.S.No.15 of 2017 on the file of II Addl. Subordinate Judge, Cuddalore partly reversing the judgment and decree dated 23.12.2016 passed in O.S.No.211 of 2012 on the file of Principal District Munsif, Cuddalore. S.A.No. 769 of 2024 Kumar

... Appellant Vs.

¶1Arulmighu Padaleeswar Thirukoil, by its Executive Officer

¶2The Joint-II Sub-Registrar, Registrar's Office, Sankara Naidu Street, Thirupathiripuliyur, Cuddalore-2.

¶3The Tahsildar, Cuddalore. .. Respondents PRAYER : Second Appeal filed under Section 100 of Code of Civil Procedure, praying to set aside the judgment and decree dated 16.10.2023 passed in A.S.No.15 of 2017 on the file of II Addl. Subordinate Judge, Cuddalore partly reversing the appeal filed by the appellant and dismissing the appeal in respect of others aspects held judgment and decree dated

23.12.2016 passed in O.S.No.211 of 2012 on the file of Principal District Munsif, Cuddalore. For Appellant in S.A.No.141 of 2024 : Mr.K.Chandrasekaran For Respondents in S.A.No.141 of 2024 : Mr.N.Palanikumar for Mr. P.Kannan Kumar for R1 Mr. R.Siddharth, Govt. Advocate for R2 & R3 ------- For Appellant in S.A.No.769 of 2024 : Mr.N.Palanikumar for Mr. P.Kannan Kumar for R1 For Respondents in S.A.No.769 of 2024 : Mr.K.Chandrasekaran for R1 Mr. R.Siddharth Govt. Advocate for R2 & R3

COMMON JUDGMENT Before the trial court, the plaintiff filed a suit in O.S.No.211 of 2012 before the Principal District Munsif Court, Cuddalore for the relief of declaration and directing the 1st defendant to deliver the suit property and other consequential relief of mandatory injunction against the defendants 1 to 3 in respect of suit properties as described in the plaint schedule in T.S.No. 695 measuring 0.67 dry land with four boundaries at Thirupathiripuliyur, Cuddalore District. Before the trial court, the defendants 2 and 3 the Sub-Registrar and Tahsildar remained exparte. The individual party, first defendant contested the suit by filing a written statement. Both parties adduced evidence. Accordingly, the trial judge has framed five issues. Considering the evidence on record, finally the trial court has declared that the plaintiff temple is the absolute owner of suit property and directed the 1st defendant to deliver possession and also granted permanent injunction not to make encumbrance and the 3rd defendant Tahsildar is also directed to change the patta in the name of plaintiff temple. Challenging the said findings, the 1st defendant preferred an appeal in A.S.No.15 of 2017 along with an application in I.A.No.5 of 2022 to receive additional documents before the II Addl. Sub-Judge, Cuddalore. The first appellate judge independently analysed both oral and documentary evidence on record and framed the point for consideration, whether the findings of trial judge needs any interference and finally held that by reading the whole document of Ex.A1 Will dated 27.06.1937, it implies that testator appointed the plaintiff temple in the second place as a executor of Will, thereby temple is bound to derive income from the property to perform the religious rituals, but the plaintiff temple was not given absolute right over the property, thus, the relief of declaration granted by the trial judge was set aside by partly allowing the appeal in respect of possession and in respect of other injunction relief, the findings of trial judge was confirmed. Further, the learned first appellate judge held that the claim made by the 1st defendant based upon the sale deed executed in his favour in O.S.No.86 of 2003 in E.P.No.5 of 2001 arising out of specific performance decree, the 1st defendant claimed that he is a lawful owner as well as possession of property was not accepted for the reason that the person, Samikannu Padayachi, brother of defendant Manicka Padayachi has no right to sell the property to one Shanmuga Padayachi through the sale deed dated 23.10.1970. Later Shanmuga Padayachi executed the sale deed in favour of his son Krishnaraj, who entered into sale agreement with the 1st defendant Kumar on 15.11.1999, but he failed to execute the sale deed. Hence, 1st defendant filed a suit in O.S.No.82 of 2000 and obtained a decree, thereby sale deed executed through execution proceedings as such is not valid under law for the reason that neither Shanmuga Padayachi nor Samikannu Padayacthi was given absolute right over the suit property in respect of 'D' schedule property in the Will Ex.A1. Therefore, the sale deed is not valid under law. Accordingly, the 1st defendant has no right and title over the property and confirmed the findings of trial judge with regard to delivery of possession against the 1st defendant. Challenging the said findings, the plaintiff preferred the Second Appeal in S.A.No.141 of 2024 and 1st defendant preferred the Second Appeal in S.A.No. 769 of 2024. Both the Second Appeals are heard jointly and passed a common judgment as follows:-

¶2For the sake of convenience, the parties are denoted as per the ranking in the suit.

¶3Brief facts of the case is as follows :- The plaintiff temple herein is administered by Tamil Nadu Hindu Religious and Charitable Endowment department, there is a temple viz., Thirugnana Sambandar @ Sambandarsamy Temple,which is the sub-temple administered by Arulmigu Padaleeswarar Thirukoil, Thirupathiripuliyur., Cuddalore. The suit property originally belong to one Manicka Padayachi son of Appasamy Padayachi and he executed a registered Will dated

27.06.1937 in a sound state of mind as it was his last testament. He died in the year 1938 and on his death, the said Will came into force. The Testator owned several properties, but he had no issues. Through the Will, he has made several dispositions describing his property as A, B, C, D schedule. The suit property is forming part and parcel of 'A' schedule. In respect of 'D' schedule, the testator intended that after his death, his wife Kokilambal Ammal had to perform religious charity and after her death, the suit property was to be vested with trustees and officers of the plaintiff temple. Kokilambal Ammal died in the year 1939. When the suit property legally vested with the temple absolutely in the year 1988, the plaintiff temple came to know about the Will, at that time, the suit property was leased out to one Veerappan. As he committed default in payment, the application was filed before the revenue court by the plaintiff temple for eviction, but as per the order of revenue court, Veerappan paying the lease amount to the temple. After his death, Manikandan continued as a tenant and he paid lease amount till 03.02.2007, but the 1st defendant attempted to trespass, Manikandan filed suit in O.S.No. 154 of 2004 for permanent injunction. Thereafter by colluding with 1st defendant, Manikandan not pressed the suit in the year 2011. The 1st defendant claimed himself as an agreement holder of suit property stating that on 15.11.1999 he entered into sale agreement with one Krishnaraj, who was a legatee under the Will dated 10.07.1982 said to be executed by his father Shanmuga Padayachi. The said Shanmuga Padayachi said to have purchased suit property from one Samikannu Padayachi through the sale deed dated 23.10.1970. The said Samikannu/vendor was the elder brother's son of Manicka Padayachi, the original testator of the Will of the year 1937 (Ex.A1). But as per the Will of the year 1937 Ex.A1, the Testator Manicka Padayachi gave the property to his brother Natesa Padayachi's sons viz., Kuppusamy, Parasuraman, Samikannu, who were given 'B' schedule of the Will. Therefore, those persons or testator's wife Kokilambal have no right and title over the suit property described as 'D' schedule in the Will. Hence, the sale deed said to be executed by Samikannu Padayachi is not valid under law as he has no right and title to convey the property. The first defendant is a real estate promoter. The alleged sale agreement was created to grab the property and to make it as a genuine, he filed the suit in O.S.No. 86 of 2000 before the Sub-Court, Cuddalore against Krishnaraj, who has no right and title, wherein he remained exparte and an exparte decree was passed. Based on that, the 1st defendant filed E.P.No.5 of 2001 to register the sale deeds, thereafter, he said to have taken possession of the property through court on

09.03.2004. The plaintiff contended that the 1st defendant played fraud upon the court. Therefore, the said decree would not bind the plaintiff temple. In fact, the suit property had been taken possession by the plaintiff temple and before the revenue court, Veerappan was declared as cultivating tenant of plaintiff temple in T.R.No. 12 of 1987. After his demise, his son Manikanda Padayachi continued as a tenant and a fair rent was fixed in F.R.No. 101 of 2001. Subsequently, a paper publication was effected by the plaintiff temple on 17.03.2004, in which testator brother's son claiming rival claim and they have also made endorsement in the suit. But the land was not cultivated for the past 8 years, however, the 1st defendant claimed that he took possession from the said Manikandan by collusion. Therefore, neither the sale deed executed by 1st defendant's vendor nor the court decree stands in the name of 1st defendant would bind the plaintiff temple. Hence, they come forward with the present suit for declaration as well as recovery of possession and also directing the revenue officials to cancel the patta, which was given in favour of 1st defendant based on the alleged sale deed executed through court.

¶4The 1st defendant by filing written statement submitted that he admits that the suit property originally belongs to Manicka Padayachi and also admits that the said Manicka Padayachi registered a Will dated

27.06.1937 and he denied that the suit property was dedicated to perform religious charity nor he admits that plaintiff temple became absolute owner as per the recitals of Will. He would further submitted that the intention of Testator is to perform anna neivedyam to Sri Sambandasamy Koil from and out of income from the suit property, after the life time of testator, his wife Kokilambal ammal has to perform anna neivedyam and after her death, testator brother's son Samikannu Padayachi performing one time anna neivedyam and it was never treated as a trust property in favour of plaintiff temple. While so, Samikannu Padayachi sold the property to one Shanmuga Padayachi through sale deed dated 23.10.1970 for the purpose of performing one time anna neivedyam to the said temple and the same wa also been carried out continuously. Therefore, the plaintiff has no vested right over the suit property. It is false to state that one Veerappan is cultivating the land as cultivating tenant under the temple. On 23.10.1970 Shanmuga Padayachi purchased the property from the said Samikannu for the valid consideration. Thereafter he was in absolute possession of property and he leased out the suit property through lease agreement dated

14.07.1967. Thereafter, Veerappan and his family members executed a lease deed in the year 1971 in favour of one Shanmugam, who admitted his right and title. Thereafter, Shanmuga Padayachi executed the sale deed in favour of his son Krishnaraj. As a legatee, he possessed and enjoyed the property. Thereafter, Manikandan/tenant filed a suit in O.S.No. 154 of 2004 against the plaintiff temple and 1st defendant, wherein plaintiff temple claimed absolute ownership, but the said suit was dismissed as not pressed on

11.04.2011 by Manikandan, so there is no collusion with Manikandan and 1st defendant. On 15.11.1999 the said Krishnaraj intended to sell the property for a valid consideration. So, he entered into sale agreement with 1st defendant, but he failed to perform his part of contract. Therefore, against Krishnaraj, 1st defendant filed a suit for specific performance in O.S.No.86 of 2000, wherein brother of Manikandan was also been added as a party, thereafter, 1st defendant entered into compromise with other defendants in the suit. The tenant Manikandan and his family members also arrayed as defendants 2 to 4. Krishnaraj, legatee of the Will remained exparte and to vacate the premises, Manikandan received a sum of Rs.70,000/- and executed a receipt on 12.10.2000. Thereafter exparte decree was passed and he filed an Execution Petition to execute the decree and also obtained the sale deed through court in E.P.No.5 of 2001. Based on the sale deed, the 1st defendant took possession of property and the delivery was also been recorded through court. Therefore, he is absolute owner of suit property, in which the plaintiff temple has no right and title.

¶5Before the trial court, five issues framed. On perusal of Ex.A1, equivalent to Ex.B1 Will executed by the testator Manicka padayachi, the learned trial judge found that as per recitals of Will, testator Manicka Padayachi had performed anna neivedyam to the temple, after his death, he directed his wife to perform anna neiveidyam, thereafter, he expressed his intention that the Dharmakarthas of Padaleeshwarar Temple should attain the property only to lease out the same in order to get the income to perform anna neiveidyam. If they are not inclined to perform the same, the trust to be formed from Vanniar community as an executor. By interpreting the said recitals, the learned trial judge submitted that Ex.A1 Will is admitted one by all the parties. Hence, after the demise of Testator's wife, the property should go to the plaintiff temple and they are also bound to perform anna nevidyam from the income derived from the suit property by leasing out the same. Therefore, the trial judge declared the right and title of plaintiff temple and upheld that the alleged sale deed dated 23.10.1970 vendor's vendor of 1st defendant as well as Will relied on by the 1st defendant dated 10.07.1982 held as invalid document and not bind the plaintiff temple. Accordingly, the 1st defendant was directed to hand over possession of property and also directed the revenue authority to issue patta in the name of plaintiff temple. Challenging the said findings, an appeal was preferred by the 1st defendant in A.S.No. 15 of 2017 along with I.A. No.5 of 2022 to receive additional documents, but the appeal was partly allowed by the first appellate judge stating that the temple was also not given any absolute right and it is only an obligation to perform one time anna neiveidyam to Sri Sambandasamy koil and no vested right, title or interest over the suit property was given to the plaintiff temple. The intention of testator has to be inferred by reading entire recitals of the Will. Accordingly, testator was intended to give the temple only to perform ritual, but not given absolute right. Therefore, the findings of trial judge in respect of declaration was set aside. However, the 1st defendant claimed absolute right also not been accepted and in respect of handing over delivery of possession as well as permanent injunction and mandatory injunction in respect of suit property is confirmed. Challenging the said findings, the present Second Appeals were preferred by both parties.

¶6The learned counsel for plaintiff temple would argues that the first appellate judge has failed to take note of recitals of Ex.A1 Will in respect of 'D' schedule pertaining to the suit property, wherein testator was intended to give the property to the temple. When the same was rightly interpreted by the trial judge, the first appellate judge erroneously set aside the relief of declaration holding that the temple was given restricted right to get the income from the suit property to perform anna neiveidhiyam as such is wrong interpretation of the Will. Therefore, the findings given to that effect is liable to be set aside.

¶7By way of reply, the learned counsel for respondents argue that the first appellate judge as well as trial judge committed an error in giving right to the temple, in fact, to perform anna neiveidyam, 'D' schedule property was sold by the testator's brother Shanmuga Padayachi. At any point of time, temple has not took possession of property, all these years, with an uninterrupted possession, the 1st defendant's vendor as well as 1st defendant enjoyed the property. To that effect, both the evidence on record as well as documents relied on by the 1st defendant was appreciated in a proper manner, but the first appellate judge erroneously held that the plaintiff temple is having right and title over the suit property as such is perverse and liable to be set aside.

¶8Considering the facts and circumstances as well as considering both side submissions, this Second Appeal was admitted on the following question of law :-

(1)Whether the lower court having come to the conclusion that the trial court is right in holding that the suit property was dedicated for performance of religious charity as per the Will dated 27.06.1937 is right in allowing the appeal?

(2) Whether the lower court has committed a grave error in overlooking this specific performance of the HR & CE Act under Sec.6(17) and (19), which defines a specific endowment and a religious endowments?

(3) Whether the lower court has erred in holding that the temple is not the owner of the property has the admitted case of the parties is that there is complete dedication of the whole of the property for performance of religious charity of Anna Neivadhyam to the Lord Plaintiff temple? He would further submit that the Executive Officer is not a competent person to file the suit without obtaining sanction from the higher authority. The first appellate judge also not appreciated the fact that the Will executed by testator Manicka Padayachi is void under Sec.118 of Indian Succession Act. To that effect, the additional written statement has not been received as such is erroneous finding and it is liable to be set aside. Further, he would submit that the testator Manicka Padayachi's brother Samikannu Padayachi nephew enjoyed the property as well as his legal heirs. He alone leased out the property to one Subbarayalu, thereafter, sold the same to Shanmuga Padayachi in the year 1970 and he leased out the property to one Veerappan, thereafter, he executed a Will in favour of his son Krishnaraj, from whom he entered into sale agreement and from him, the 1st defendant entered into sale deed through the court of law. Therefore, the first defendant has got the valid right and title, but it was not appreciated by the court below. Hence he prayed to set aside the findings.

¶9Heard and considered rival submissions made by both learned counsel for appellant as well as respondents and perused the materials available on record.

¶10Considering the findings rendered by the court below, the fact reveals that based on Will Ex.A1 executed by Manicka Padayachi dated

27.06.1937, 'D' schedule property was assigned to perform religious charities by giving anna neiveidhiyam to Sri Sambandasamy koil, sub-temple of plaintiff temple. The plaintiff contended that in the year 1988, the Executive Officer of the temple came to know about the Will, before that, the testator Manicka Padayachi not disclosed about the Will to the temple, but the said property was leased out to one Veerappan and to evict him, they have initiated proceedings Ex.A3 copy of Tenancy Register No.12/87, copy of the property register marked as Ex.A2, thereby it reveals that the suit property was entered in their register as per the provision of H.R. & C.E Act. So, Ex.A3 reveals that in respect of suit property, the plaintiff temple initiated proceedings against one Veerappan. Thereafter, order was passed by the Revenue Divisional Officer in a fair rent application No. 101 of 2001 directing the tenant to pay fair rent to the plaintiff temple in respect of suit property.

¶11Before the trial court, on the side of plaintiff, P.W.1 to P.W.3 were examined and the documents Ex.A1 and Ex.A7 were marked. On the side of defendants, D.W.1 and 2 were examined. Both parties claimed right based upon the Will Ex.A1, wherein the suit property was shown as 'D' schedule. As per the recitals of Will, 'D' schedule was extracted as follows:- "D. b&l;oa{ypy; fz;l brhj;J jpUg;ghg[ypa{hpypUf;Fk; rk;ke;j Rthkpf;F fhiyapy; xU ntis nkw;go brhj;jpypUe;J tUk; tUk;goiaf; bfhz;L md;d bea;ntj;jpak; bra;J bfhz;L tUfpnwd;/ nkw;go jh;kj;ij vd; Ma[Rf;F gpwF vd; ghhpahs; nfhfpyhk;ghs; mk;khs; nkw;go rk;ke;j Rthkp nfhtpy; md;d bea;ntj;jpa jh;kj;ij bra;J tuntz;oaJ. nkw;go nfhfpyhk;ghs; mk;khSf;F gpwF nkw;go nfhtpy; jpUg;ghg[ypa{h; _ghlyP!;tu Rthkp njt!;jhj;jpy; ghpghypj;J tUtjhy; nkw;go D b&l;oa{ypy; fz;l brhj;ij nkw;go _ghlyP!;tu Rthkpf;F ,Uf;Fk; jh;kfh;j;jhf;fSk;. mth;fSf;F gpwF me;j !;jhdj;ij tfpg;gth;fSk;. nkw;go brhj;ij mile;J Fj;jiff;F tpl;L mjpypUe;J tUk; tUk;goiaf; bfhz;L nkw;go rk;ke;j Rthkpf;F fhiy xU ntis md;d bea;ntj;jpak; elj;jp tuntz;oaJ/ me;jg;go nkw;go jh;k; elj;jj; jtWk;gl;rj;jpy; td;dpa $hjpahhpd; ehl;lhz;ikf;fhuUk;. mtUf;F gpwF me;j !;jhdj;ij tfpg;gtUk; vf;!;f;a{l;luhapUe;J mjw;Fs;s epaha Vw;ghl;il bra;J tuntz;oaJ/ " On bare perusal of above recitals, he pleaded that testator Manicka Padayachi during his life time performed anna neiveidyam to Sir Sambanthasamy Koil as well as plaintiff temple and after his life time, he wanted to continue the said dharmam, hence, his wife Kokilambal Ammal was directed to perform the said dharmam. After her demise, since the said temple was under the control of Thirupathiripuliyur Padaleeswarar Devasthanam, he directed Dharmakarthas of the said temple shall attain the property, but directed to lease out the property and with the help of the said income, Dharmakartha of the temple has to perform anna deividyam. If at all, they have to the said dharma from their community only not by the people belong to other community to perform the said anna neivedyam as executor of the Will. Therefore, the intention of testator was that after the demise of his wife, the 1st defendant was not given any right to perform the said dharma nor any absolute right was given to relatives of the said testator, however, the recitals clearly denotes that after the demise of his wife, dharmakartha of the said temple shall attain the suit property and lease out the same in order to get the income to perform the said dharma. Therefore, the contention of 1st defendant that the testator's brother Samikannu Padayachi as well as his sons were given absolute right to dealt with the property, which is not acceptable one. Hence, the alleged sale deed dated 23.10.1970 made by the Samikannu Padayachi in favour of one Shanmuga Padayachi as such is not valid under law nor it binds the plaintiff temple, since the said vendor Samikannu Padayachi has no right to convey the property. Therefore, the alleged sale deed would not bind the plaintiff's temple. Based on that, the said purchaser Shanmuga Padayachi executed a Will in favour of his son Krishnaraj is also invalid under law. However, the said Will was not produced on the side of contesting defendant. Now based on the sale agreement dated 15.11.1989 the said Krishnaraj legatee/1st defendant claiming right over the property as he contended that terms of agreement has not been complied. So, he filed the suit in O.S.No.86 of 2000 before the Sub-Court, Vellore for specific performance and obtained an exparte decree, thereby he paid the rent to the tenant Veerappan and his family members, who took possession of property through execution proceedings as such is not valid. As discussed above, the vendor has no right and title over the property. Hence, the alleged sale agreement as well as exparte decree obtained by the 1st defendant as such is nonest under law as the vendor has no right and title to dealt with the property. Therefore, the alleged sale agreement as well as exparte decree including the execution proceedings would not bind the plaintiff temple. Hence, the interpretation made by the trial judge in respect of intention of testator was well-reasoned one, but the first appellate judge erroneously set aside the findings of trial judge to that effect as such is illegal and liable to be set aside. Accordingly, the question of law (1) and (2) are answered.

¶12In respect of Sec. 6 clause 17 of the Act as such is valid under law. The plaintiff temple is empowered to attain the suit property and to perform anna neivedhiyam and if any interference is caused, the Executive Officer is entitled to file the suit. Hence, the findings of trial judge is valid under law. Accordingly, question of law (2) is answered. Accordingly, the Second Appeal in S.A.No. 141 of 2024 is allowed and the findings of first appellate judge in A.S.No. 15 of 2017 respect of relief of declaration is set aside. Suit is decreed.

¶13In view of findings rendered in S.A.No. 769 of 2024, there is no substantial question of law is involved in this second appeal filed by the 1st defendant for the reason that the 1st defendant vendor has no right and title over the suit property. As per the recitals of Will dated 27.06.1937, Testator was intended to give the suit property for dharma to perform religious charity by giving anna neivedyam in Sri Sambanthasamy temple, which is under the control of testator and after the death of testator, his wife Kokilambal Ammal has to perform the said dharma and after her death, plaintiff temple shall attain property and dharmakartha is permitted to perform anna neivedyam. When the temple came to know about the Will in the year 1988, they dealt with the suit property. Therefore, the testator has not given any absolute right in respect of suit property and the sale deed made by Samikannu padayachi in favour of Shanmuga Padayachi as well as the Will executed by Shanmuga Padayachi in favour of his son Krishnaraj, who entered into sale agreement with the 1st defendant are all invalid documents in the eye of law. Therefore, the alleged sale deed executed in favour of 1st defendant by way of exparte decree as such is nonest under law. Therefore, the trial judge has rightly appreciated all the facts, however, the first appellate judge has slightly modified the relief of declaration was also been set aside as per the findings rendered in S.A.No.141 of 2024 filed by the plaintiff. Therefore, there is no question of law involved in this second appeal. Accordingly, the Second Appeal in S.A.No. 769 of 2024 is dismissed. Suit is decreed in favour of plaintiff temple. The 1st defendant is directed to hand over the suit property within a period of two months from the date of receipt of this judgment. The 3rd defendant Tahsildar is also directed to transfer the patta in the name of plaintiff temple within a period of three months from the date of receipt of this judgment. No costs. Consequently, connected Miscellaneous Petition is closed.

09.12.2024 Index : Yes / No Internet : Yes / No Speaking/Non-speaking order rpp To

¶1II Addl. Sub-Judge, Cuddalore.

¶2Principal District Munsif, Cuddalore.

¶3Section Officer, VR Section, Madras High Court.

T.V.THAMILSELVI, J. rpp

09.12.2024