LPA/70/1998 of B.S.NAGARAJAN. Vs K.B.SIVASANKARAN. on 10 December 2002

:JUDGMENT

PRABHA SRIDEVAN,J.

The appellant was granted a 60 year lease on 07-05-1949 by thetrustee of the respondent-temple. A suit was filed in 1979 for recovery ofpossession by the respondent. The appellant resisted the suit and inter aliaclaimed the benefits of the City Tenants' Protection Act, 1921('the Act' inshort). The suit was dismissed on the ground that the respondent is notentitled to recover possession of the suit property before the stipulatedlease period. The learned Single Judge, however, held that therespondent-temple was governed by the provision of the Hindu Religious &Charitable Endowments Act, 1959 (1959 Act in short) or the Madras ReligiousEndowments Act, 1927 (1927 Act in short) and the lease granted without thesanction of the Board was invalid and that "at the most, while he can say thathe is not a trespasser..", he has no legal status as a tenant. Alongwith thisappeal, the learned Single Judge also disposed of the revision filed by theappellant herein against the dismissal of the petition under Section 9 of theAct. Against this, the appellant filed a Special Leave Petition and we are informed that he was directed to agitate his rights as a city tenant in thisappeal.

2. According to the learned counsel for the appellant, in earlier proceedings, the respondent pleaded a different case. Two suits werefiled by the parties herein, both for injunction against each other. Thejudgment in appeal filed against those suits was marked in this suit asEx-B17. The appeal had ended in favou r of the appellant holding that he hadproved possession on the date of suit. It was also urged on behalf of theappellant that there is no evidence to show that the suit property is subjectto the provisions of either the 1959 Act or the 1927 Act. So, therestrictions on alienation would not apply to the lease between the partiesand even assuming that the 60 year lease is invalid, there should be animplied lease, in view of the documents marked by the appellants andtherefore, the tenant was entitled to the protection under the Act.

3. The lease deed was entered into before the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 came into force. The lawthen applicable was the Madras Hindu Religious Endowments Act, 1927. This Actwas intended, inter alia, to provide for the better administration andgovernance of certain Hindu Religious Endowments.

4. Under Section 76 of the 1927 Act, no exchange, sale or mortgage and no lease for a time exceeding five years of any immovableproperty belonging to any [math, temple or specific endowment] shall be validor operative unless it is necessary or beneficial to the [math, temple orspecific endowment] and is sanctioned [by the Board].

5. In this case there has been no sanction from the Board.

The case of the appellant is that the temple is not governed by the provisionsof the Act and therefore, this restraint will not apply. While deciding theright of the respondent to file the suit for recovery of possession, the TrialCourt held in favour of the respondent because his right as a hereditarytrustee was upheld in view of Ex-A4. Ex-A4 is the copy of the decree inO.S.No.7132 of 1978 filed by the respondent under the provisions of the 1959Act. The plaintiff/ respondent had filed a petition to declare himself as thehereditary trustee of the Temple. The authorities under the 1959 Act, heldagainst him in A.P.No.47 of 1976. So he filed a suit under Section 70 of theH.R. & C.E. Act. The suit was decreed in his favour declaring his right tobe a hereditary trustee. It is clear therefore, that the respondent's rightto act as hereditary trustee has been asserted only by invoking the provisionsof the 1959 Act.

6. In the 1959 Act, 'hereditary trustee' has been defined as the trustee of a religious institution, the succession to whose officedevolves by hereditary right or is regulated by usage or is specificallyprovided for by the founder, so long as such schemes of succession is in forceand 'religious institution' has been defined as a math, temple or specificendowment;

7. This is not very different from the definition of 'hereditary trustee' in the 1927 Act wherein it is defined as the trustee of a math, temple or specific endowment succession to whose office devolves byhereditary right or is regulated by usage or is specifically provided for bythe founder, so long as such scheme of succession is in force and 'temple' hasbeen defined as a place, by whatever designation known, used as a place ofpublic religious worship and dedicated to, or for the benefit of, or used asof right by, the Hindu community or any section thereof, as a place ofreligious worship.

8. Section 84 of the 1927 Act deals with the settlement of disputes by the Board and one such dispute is referred to in Section 84(b)i.e., "whether a trustee is a hereditary trustee as defined in this Act ornot."

In the note to this Section in Madras Hindu Religious Endowments Act, 1927,third edition, by P. Ramanatha Iyer it is stated as follows:"(1) N.B.-- Now S.84 was substituted for old S.84 by Madras Act IV of 1930. The reason for this amendment has been stated as follows:"Doubts have been raised as to whether disputes as to private character oftemples can be dealt with by the Board under section 84 as it is. Theproposed amendment is intended to make the meaning and the object of thelegislature clear; such doubts have been based on the existence of thedefinition of 'temple'' and 'math' as meaning a public temple and a publicmath." -- (Statement of objects and Reasons.) That has been superseded by thepresent section substituted by Madras Act X of 1946."So the claim to hereditary trusteeship rests on whether the claimant satisfies the definition in the Act. Therefore, under Ex-A4, theright of hereditary trusteeship to a public temple had been declared. Thereare no materials to the contrary.

(Emphasis supplied)

9. The judgment in Ex-B17 referred to by the learned counsel

for the appellant does not come to his aid, since all that the learned Judgehas found in that case was that on the date of those suits the appellant wasin possession. The learned counsel for the appellant would attempt to bringto our notice a finding in the judgment of the Trial Court in O.S.No.5592 of1993 and O.S.No.1897 of 1993, against which the appeals in Ex-B17 arose. Thatwas not marked as an exhibit and we cannot take into consideration any findingtherein eventhough they may be in the appellant's favour.

10. The learned counsel for the appellant also referred to a statement made by the appellant in the cross-examination which is,"Sivasankaran is the hereditary trustee of the private temple who isthe plaintiff".

It was urged that this was a suggestion made by the appellantand it would go to show that even the case of the respondent was that it was aprivate temple. No such conclusion can be drawn from a stray sentence in theevidence. On the other hand, the respondent had stated in cross-examinationthat for the temple "contribution should be made to the endowment-board."Therefore, once this issue is held in favour of the respondent then thealienation which is against the provisions of the Act can have no legal effect

11. The appellant cannot protect his possession pleading implied tenancy either. Prior to the suit, the respondent had issued Ex-A2notice, dated 22-03-1973 informing the appellant that the respondent had noauthority to lease out the land for more than five years and that on receiptof the notice it was open to the appellant to have a lease deed executed inhis favour.

12. The appellant claims that he did not receive this notice.

But, however, Ex-A3 has been marked which is dated 28-07-1973, in which thereis reference to a notice dated 21-07-1973 issued by the appellant claimingleasehold right in the land. In Ex-A3 also, the respondent has clearly deniedthat the appellant had any leasehold right in the land and that unless hisright is declared, the respondent will not recognize the appellant as a tenantand further the tenants in the property had attorned their tenancy to therespondent and that they are paying rent from 1st July 1973 and that theappellant has no right either to the land or the superstructure. Therefore,even if monthly payments have been received they cannot be considered asevidence of implied tenancy. The tenant, therefore, cannot claim any rightunder the Act. And again, once the appellant had pleaded express tenancy asevidenced by Ex-A1 and that alone, he cannot now plead implied tenancy andeven for that there is no basis. It is also a matter of record that theappellant has sub-leased the property. So he cannot claim any rights underthe Act because the persons who can claim the protection of the Act aretenants who are in physical possession. So the two decisions cited by him inM. Ramasamy Pillai (dead) by LRs., Vs. The Hazarath Syed Shah Mian SakkafKhadiri Thaikal (AIR 1992 SC 2 295 at 2297 and S. Shanmugavel Nadar Vs.State of Tamil Nadu (2002 IV CTC 234)do not come to his aid since the dealwith tenants who are entitled to the Tamil Nadu City Tenants' Protection Act.The question whether the Amendment Act of the City Tenants' Protection Act isvalid, therefore does not require consideration for disposing this appeal.

13. Of course, an attempt was made by the learned counsel for the appellant to show that still some portion of it is retained. Thedemarcation of the portion in his occupation was not done and there is nodispute that a major area of the superstructure is not in his possession.This poses another hurdle in the way of the appellant.

14. We see no reason to interfere with the finding of the

learned Judge regarding the invalidity of the lease granted by the respondentviolating the provisions of the Madras Hindu Religious Endowments Act. Theappellant is also not entitled to any benefit as a city tenant, since he isnot in physical possession as there are sub-tenants in the property. In view of the legal notice calling upon the appellant to have a proper lease deedexecuted in this regard and that his continuance in possession is not as alessee, the question of implied tenancy also does not arise.

15. The letters patent appeal is therefore, dismissed. No costs. The connected miscellaneous petition is also dismissed.

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