P SIVAGURUNATHA PILLAI Vs. P MANI PILLAI DIED

JUDGEMENT

(1.) The plaintiffs are the appellants in this appeal directed against the dismissal of their suit in 0. S. 56 of 1972, Sub-Court, Kurnbakonam, under S. 92. C. P. C. praying for the relief of the framing of a scheme. The appellants came forward with the suit claiming that the suit properties are dedicate for public purposes and constitute a public trust. It was also further claimed in the plaint that there is a choultry at Pandanallur, called 'Kunnayee chatram' and one Kurmayee Ayeeyar wife of Vellaya Pillai constructed the choultry in or about 1840 and endowed some lands and subsequently one Chellappa and Chinnakulandai also endowed other properties to the choultry in all totalling to 37 acres and 10 cents in Pandanallur and Keelamandur villages. The patta in respect of these properties, according to the appellants, stood only in the name of the choultry and the respondents I to 3 herein did not have any rights. The properties so endowed to the choultry formed part of schedule I to the plaint and the appellants claimed that the entire income was intended to be utilized for conducting Thanneer Pandal Dharmam, poor feeding of mendicants and the maintenance of the chatram building, compendiously called 'Sri Venkatachalapathi Dharmam'. It was the case of the appellants that till about 1930, a few mendicants and pilgrims used to be fed in the choultry -and the Thanneer Pandal Dharmam was also commenced in the Tamil monffi of Chitrai with the inauguration ceremony and that subsequently the ceremony was abandoned and the Thanneer Panda] Dharmarn alone was conducted for about three months in a year, incurring an expenditure of Rs. 300 per annum, out of a total income of about Rs. 18,000 from the properties resulting in the appropriation of the balance of the income by the respondents 1 to 3., It was also the further case of the appellants that the endowed properties had been dealt with by the respondents 1 to 3 contrary to the terms of the endowment and collusive proceedings had also been taken resulting in the passing of orders by the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, Thanjavur. With reference to the allocation of income for the performance of ' Somavara Kattalai' in Sri Pasupatheeswaraswami temple at Pandanallur. Alleging that the first appellant wits a member of the community and a relative of the donors and respondents 1 to 3 and was also invited to be present on the occasion of the performance of the Thanneer Pandal Dharmam the appellants claimed to be persons interested in the due and proper performance of the objects of the endowment and instituted the suit for the removal of respondents I to 3 from the trusteeship and management and for framing a scheme for the proper administration of the chatram and its properties and also for other incidental reliefs.

(2.) In their written statement, the respondents 1 to 3 disputed the maintainability of the suit by the appellants as persons interested in the trust. The dedication to the choultry and the endowment of properties fo~ the purposes claimed by the appellants was also denied. It was claimed by the respondents I to 3 that some properties were set apart for the purpose of conducting Thanneer Pandal charities out of the income there from. The feeding of the poor mendicants and the construction of the chatram and its maintenance from out of the endowed properties was denied by respondents 1 to 3. That there was an endowment of properties as public trust was denied by them. -The income from the properties, according to the respondents 1 to 3, was grossly exaggerated and the income there from was only about Rs. 4704 and after meeting the Thanneer Pandal Dharmam and thc Sornavara Kattalai in Sri Pasupatheesararswami temple at Pandanallur, the respondents I to 3 were entitled to the beneficial interest in the balance. Relying upon the proceedings in 0. A. 81 of 1962 on the file of the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, Thanjavur, an objection was taken that the suit was bad, for non- joinder of the Commissioner, Hindu Religious and Charitable Endowments. Department and that the suit was also barred by Ss. 108 and 111of the Hindu Religious and Charitable endowments Act. The respondents I to 3 further pleaded that the expenses of the performance of the Thanneer Pandal Dharmam and the Somawara kattalai was only in the nature of a charge on the income of the family lands and should be in the nature of private family charities and in the absence of any deed of endowment or dedication of properties for purposes set out in the plaint, the properties would not he said to be endowed or dedicated as public trust and, therefore, there was no .justification for the framing of a scheme under S. 92, C. P. C. as prayed for by the appellants. The respondents 1 to 3 also contended that the appellants were not entitled at all to call upon the respondents I to 3 to render any account. The interest of the appellants in the trust and its properties was also seriously questioned by t lie respondents 1 to 3.

(3.) The Executive Officer, Sri Pasupatheeswaraswami temple, Pandanallur, the sixth respondent herein, filed a written statement disputing the right of the appellants to represent the public and stated that the allocation as per the order of the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, Thanjavur in O. A. 81 of 1962 was being adhered to and that water and buttermilk were supplied in the choultry and further that Somawara Kattalai was also being performed by respondents 1 to 3 he was neither in the temple. Claiming that a necessary nor a proper party and also that the suit was barred by limitation, the sixth respondent prayed for the dismissal of the suit.