MURTHY CHOULTRY K S Vs. K LAKSHMANA RAO

JUDGEMENT

(1.) The Manager of Gudala Group of Temples, Amalapuram filed O.S.No. 51 of 1977 as per the instructions of the Assistant Commissioner, Endowment Department Rajahmundry in his Proceedings in Rc.No. A-2, 23554/76, 4 Adm., dated 29-12-1976, marked as Ex.A-1 in the suit, for taking possession of the properties belonging to the Choultry, for rendition of true and correct accounts of the income on the plaint 'A' and 'B' Schedule properties for the last three years, for future profits and for the costs of the suit, against the defendants who are the lineal descendants of Sri Kolluri Suryanarayana Murthy, who established a choultry under the name and style of 'Kolluri Suryanarayana Murthy Choultry' in 1946.

(2.) The plaint allegations are that late Kolluri Suryanarayana Murthi established a Charitable Institution in the year 1946 and he was feeding the wayfarers, over a number of years. As he became old he executed a registered Will with regard to his properties on 1-3-1960. In that Will he has set apart a tiled house Schedule 'A' in which he was living as choultry and the immovable property for maintenance of the choultry as shown in B Schedule was set apart from movable properties shown in 'C' Schedule to the plaint. As per the terms of the Will, during his life time the testator retained absolute right to manage the choultry and after his death his wife and thereafter all his children in turn have to maintain the choultry keeping the respect and prestige attached to the choultry. It is also the case of the plaintiff that the defendants registered the choultry as a Charitable Institution under Section 38 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 (hereinafter referred to as 'the Act') in the Office of the Assistant Commissioner, Endowments Department at Rajahmundry vide his proceedings in R.Dis.No. B-2, 9587/74 and a copy of the same was marked as Ex.A-8. After the death of the testator and his wife, the sons of the testator and their children were looking after the affairs of the choultry. At the same time, as the defendants were not submitting proper accounts to the Department. Hence, the Asst. Commissioner directed the plaintiff to file a suit for accounts and possession of the choultry against all the trustees and to report compliance. While defendants 1 to 9 are the lineal descendants of late Suryanarayana Murthy, the 10th defendant is a lessee of 'B' Schedule property and it is the case of the plaintiff mat in spite of repeated requests he was not paying the rents to the plaintiff. Stating so the suit was filed seeking the above reliefs.

(3.) The 2nd defendant filed written statement contending that the suit schedule properties are not charitable properties as the ownership of these properties were never transferred to the Department. The choultry is being maintained purely as a private choultry and no endowment was created as such by the testator and the same cannot be treated as a charitable trust. As per the Will executed by the founder the choultry has to be managed by his wife and thereafter his sons and their progeny. As such the choultry cannot be termed as a charitable institution as defined under Section 2 (4) of the Act and the same has no application. The testator prescribed in the Will the method and manner in which the trust and its properties have to be administrated and the line of succession was given in the Will. Hence, the question of appointing an Executive Officer or a Manager to the choultry by the Assistant Commissioner does not arise. The suit schedule properties being joint family properties everyone of the co-parceners is having a right in the property and as such the founder has no power to constitute a trust with the joint family properties without the consent of the co-parceners. As such even if it is presumed to be a public trust that cannot be acted upon as the testator has no power to bequeath the properties for a charitable purpose. It is also his case that the High Court in W.P.No. 1479 of 1971 by an order dated 12-10-1972 declared that the suit schedule properties were always treated as private properties belonging to the joint family of late Suryanarayana Murthy and his sons. As the Management, Administration and enjoyment of the suit properties are all internal matters between the sons and the grandsons of the founder and neither Endowment Department nor any of the Officer, more so the plaintiff has no concern with the administration of the properties and the suit itself is misconceived and not maintainable in law. The provisions of the Act do not apply to the suit properties or their management and enjoyment and as such the Assistant Commissioner or any other Officer has no power to initiate any proceedings or pass any orders under Section 26 (3) of the Act.