(Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree made in A.S.No.13 of 2011, dated 25.08.2012, on the file of Sub-Court, Mannargudi, Thirvarur District reversing the judgment and decree made in O.S.No.42 of 2007, dated 19.11.2010, on the file of the District Munsif Court, Thiruthuraipoondi, Thiruvarur District.)
1. The Plaintiff is the appellant herein. The Madathipathi of Sri Nataraja matam,Chockalingaswami matam, Vedantha matam, Keelpandy, Veppanjeri by Thavathiru Sadhu Shanmuga Adigalar Swamigal( in short ''Sadhu Shanmuga Adigalar) had filed a suit for permanent injunction restraining the respondent/defendant, the Madathipathi of Peria matam from interfering with the peaceful possession and enjoyment of the property in O.S.No.42 of 2017, Thiruthuraipoondi. The suit was decreed after trial. On appeal by the defendant in A.S.No.13 of 2011, the appeal was allowed and hence, the second Appeal.
2. The above Second Appeal was admitted on the following substantial questions of law:
1.Whether the lower appellate Court has committed an error in law in holding that the respondent is entitled to cancel the Trust Nomination Deed made in favour of the appellant, when the deed itself contains a clause that the same is irrevocable?
2.Whether the lower appellate Court has committed an error in holding that the plaintiff is not entitled to the relief of injunction, as he had not sought for a declaration of his status as Madathipathi?
3.Whether the lower appellate Court has committed an error in holding that the plaintiff is not entitled to the relief of injunction without there being a prayer for cancellation of Ex.B8?
3. Heard the submissions made by Mr.A.Natarajan, learned Senior Counsel appearing for the appellant and Mr.V.Manohar, learned counsel appearing for the respondent/Madathipathi of Periya matam/defendant-matam.
4. The brief facts that are necessary for the determination of the above Second Appeal is as under:
4.1.The respondent herein has executed Ex.A2 wherein the plaintiff was appointed as Madathipathi of Sri Nataraja matam, Chocklingswami matam, Vedantha matam of Veppanchery by way of a Trust Nomination Deed, dated 5.8.2002, whereby, the plaintiff was vested with the matams and the properties belonging to the matams which are situated at Veppanchery Village, Kilpande, Thiruthuraipoondi Taluk. Since the date of the Trust Deed and vesting of the properties upon the plaintiff, the plaintiff/Appellant has been in possession of the properties. The revenue records viz.,Patta, Chitta and Kist receipts stand in the name of the plaintiff/Appellant.
4.2. Since the respondent herein has tried to disturb the appellant's possession of the suit property by use of force, the Petitioner/appellant herein had filed a suit in O.S.No.42 of 2007, on the file of the District Munsif Court, Thiruthuraipoondi for permanent injunction against the respondent from interferring with the peaceful possession of the property.
4.3.The respondent herein contended before the trial Court that a Deed of Cancellation has been executed by the respondent under Ex.B8, whereby, the Petitioner/appellant is not in possession of the suit property.
4.4.The trial Court has considered both oral and documentary evidence on both sides and decreed the suit in O.S.No.42 of 2007 by a judgment and decree, dated 19.11.2012. Aggrieved by the judgment and decree, the respondent herein had preferred an appeal in A.S.No.13 of 2011 before the Sub-Court, Mannargudi.
4.5.Aggrieved by the judgment and decree of the Sub-Court, Mannargudi, the Petitioner/appellant has preferred the above Second Appeal before this Court.
5. On a perusal of the document filed before the trial Court on behalf of the Plaintiff/Sadhu Shanmuga Adigalar, representing Madapathi of Plaintiff, as power agent, is examined as P.W.1 and Ex.A1 to Ex.A48 were marked. On behalf of the defendant, Sri Sivananda Swamingal, the Madathipathi of Periya matam/defendant matam examined himself as D.W.1 and Ex.B1 to Ex.B17 were marked. The trial Court, taking note of the fact that the plaintiff has redeemed three mortgages and also renovated the Mut Building in the 'A' schedule property and Annadanams are being carried out and mutation of name in the revenue records have been effected and the possession of the plaintiff being established, for the reasons recorded therein, has decreed the suit.
6. On appeal, the lower appellate Court, the Subordinate Judge, Mannargudi has taken note of the factum of Ex.B8- Cancellation of Nomination Deed and after one month of serving a copy of Ex.B8 along with legal notice only, suit has been filed and hence, on the date of the filing of the suit, the plaintiff is not in possession of the property. Accordingly, hold that a bare injunction is not maintainable, since the Plaintiff is not in possession of the suit property as on the date of filing of the suit. Accordingly allowed the appeal and dismissed the suit and hence, this appeal.
7. The above Second Appeal is admitted on the substantial questions of law, as stated supra.
7(a).Mr.A.Natarajan, learned Senior Counsel appearing for the appellant would draw my attention to Ex.A2 and Ex.B8. Ex.A2 is the nomination deed, wherein, nominating the plaintiff as the Madathipathi of Sri Nataraja matam by the defendant and Ex.B8 is the cancellation of Ex.A2. He would draw my attention to the recital in Ex.A2 to the effect that the same is irrevocable and hence, Ex.B8 cannot be issued in the eye of law.
7(b). Further, the learned Senior Counsel would draw my attention to Ex.A10-Notice issued by the Plaintiff to the HR and CE Joint Commissioner for the development of the properties in the Mutt and Ex.A17-Tahsildar of the Thiruthuraipoondi, who had effected transfer of patta proceedings under Ex.A34; under Ex.A29, he has remitted the kist and under Exs.A29, A30 and A31, he had paid the Insurance for the crops.
7(c). With regard to the adminstration, he relied upon Ex.A19-Audit Report given by the HR and CE Department and conducting the Guru Pooja and other invitations, relied upon Ex.A21 to Ex.A27 and further contended that Ex.A39 is the Trust Appointment Order by virtue of Ex.A41, all portion of the property was reconstructed. He has also redeemed the mortgage effected by the Madathipathi through one Devadas under Exs.A45, A46 and A47.
7(d). Hence, would contend that Ex.B8 cannot be issued by the defendant, as he has no power of revocation cancelling the appointment order and further contended that there is no recital in Ex.A2 that in the event of any mal-practice or mal-administration being found, the defendant can cancel the appointment order and hence, in view of the irrevocable clause incorporated in Ex.A2, the defendant has passed an order under Ex.B8, the same is being nonest in law, and hence, the suit has been filed by the plaintiff for bare injunction without the relief of declaration of title, as maintainable. Further contended that, he is in possession of the property and relied upon the revenue records and hence, prayed for restoration of the injunction granted by the trial Court.
8. Per contra, Mr.V.Manohar learned counsel appearing for the defendant would contend that the defendant viz.,Sri Sivananda Swamigal wanted to appoint a successor for the said Mutt and further Ex.A2-Trust Appointment Order issued by the defendant is subject to the Will for the creation of all the three Mutt.
8(b). since he does not belong to Kovilur Sect, appointment of the plaintiff itself is not in accordance with law, viz., not in accordance with the original 'Will', Ex.A4. Further also, alleged mal-administration and mis-appropriation of the funds and converting the Mutt Property to the individual property and hence, the defendant has passed Ex.B8, Cancellation Deed cancelling the nomination of Plaintiff as Madathipathi of the said Mutts. Without challenging Ex.B8, the suit as framed is not maintainable.
8(c). In the absence of any relief of declaration to declare Ex.B8(Cancellation of Nomination Deed) as null and void, the suit is not maintainable and also draw my attention to the earlier order of cancellation of Trusteeship to one Devadas and also the order passed by the Thiruthuraipoondi District Munsif Court in O.S.No.46 of 2002, which was marked as Ex.B7. Further, he would contend that the reasoning assigned by the Lower Appellate Court at Paragraph Nos.11 and 12 is sustainable in law and made submissions in support of the judgment of the lower appellate Court.
9. On the above factual possition, the legal position with regard to the nomination of Madathipathi for the Mutt are discussed hereunder.
10. In the decision in Sri Mahalinga Thambiran Swamingal .vs. His Holiness Sri La Sri Kasivasi Arulnandi Thambiran Swamingal reported in 1974 1 MLJ 134, the Honourable Supreme Court has observed as under:
''.....A nomination need not partake of the character of a Willin the matter of its revocability, merely because the power of nomination is exercised by Will.In other words, the nature or character of a nomination does not depend upon the type of document under which the 'power' is exercised . If a nomination is otherwise irrevocable except for good cause, it does not become revocable without good cause, merely because the power is exercised by a Will.......''.
12.........An Adhinam is a central institution from which the chief ascetic exercises control and supervision over a group of endowed institutions and religious trusts. A Thambiran is an ascetic attached to an Adhinam and when he becomes the head of the Adhinam, he is referred to as Pandara Sannadhi........''.
13.Succession to the office of Mahant or Head of a Mutt is to be regulated by the custom of the particular Mutt and one who claims office by right or succession is bound to allege and prove what the custom of the particular institution is, for the only law regulating succession to such institutions is to be found in the custom and practice of that institution(the decisions of the Privy Council in Greedharee Doss .vs. Nundokissore Doss and Ramalingam Pillai .vs. Vythialingam Pillai.As was observed in Vidyapurna Tirthaswami .vs.Vidyanidhi Tirthaswami.......''.
18.........By exercising the power of nomination, the head of a Mutt is not disposing of any property belonging to him which is to take effect after his death. He is simply exercising a power to which he is entitled to under the usage of the institution. A nomination makes the nominee stand in a peculiar relationship with the head of the Mutt and the Hindu Community and that relationship invests him with the capacity to succeed to the headship of the Mutt. A nomination takes effect in persenti. It is the declaration of the intention of the head of the Mutt for the time being as to who his successor would be.....”
11. It is further held that:
''18.......In other words, the nature or character of nomination does not depend upon the type of document under which the power is exercised. If a nomination is otherwise irrevocable except for good cause, it does not become revocable without good cause, merely because the power is exercised by a Will.....”
AIR 1917 Madras 578(Thiruvambala Desikar .vs. Chinna Pandaram)
''.......A Division Bench of the Madras High Court consisting of Wallis , C.J and Seshagiri Ayyar,J., held that the Head of the Mutt, after making a valid nomination cannot revoke the nomination at his sweet Will and pleasure, but only for good cause.Wallis, C.J said(at P.100):
12. The above said decision of the Honourable Supreme Court has laid down the law that the nomination when made can be “cancelled or revoked” only “for good cause”. Keeping the above principle of law regarding nomination of Madathipathi by a Madathipathi nominated under the original Nomination Deed and his power to cancel the Nomination Deed and the reasons that has to be considered by the Court, while considering either the validity of the nomination Deed or the validity of the termination of the nomination, as the case may be.
13. As stated supra, the appellant plaintiff filed the suit in O.S.No.42 of 2007 before the Sub-Court, Thiruthuraipoondi initially before the District Munsif Court, Thiruvarur, has sought for a decree of bare injunction. In other words, the relief of permanent injunction was sought for to protect the posession of the property.
14. The Madathipathi of Periya matam/defedant-matam had filed a written statement on July 2007 itself, whereby, he has intimated that the nomination of the Plaintiff as a Madathipathi of Plaintiff matam under Ex.A2 was duly cancelled under Ex.B8 and the same was communicated to the Plaintiff and it was received by the plaintiff and a reply was given by the plaintiff and the suit was filed only for bare injunction and hence, contended that it is not maintainable in law.
15. The Lower Court records reveal that:
(i) for the 1st plaintiff, Mutt, the defendant has been the Head of Madathipati of Sri Vedantha matam having been so nominated, declared and constituted as such Madathipathi some 40 years ago by his predecessor-in-office Sri la Sri S.M.Ramasamy Swamigal in accordance with the customary rites, ceremonies and usages pertaiing thereto.
(ii) The suit matam though loosely called a 'Math', is a monastic institution and not a Hindu Religious Institution as defined under Tamilnadu Act 22/59.
(iii) The said institution was founded by Sri la Sri S.M.Ramaswamy Swamigal of Veppanachery, who constituted himself as its first Founder and First Madathipathi. He founded the said institution for purposes of his studies and imparting instruction in Vedantha and in the Holy (Hindu Scriptures) Laterly he provided for line of devolution/succession to such Headship of the institution and also endowed thereto his own properties described in the plaint A-Schedule for the support and maintenance of the said institution and for the purposes and objects set out above.
(iv) The founder had executed a deed of nomination cum settlement deed dated 11.04.1962.
(v) He had, however no disciples of his own. Besides conducting daily poojas and offering neiveidhiyam to the picture of Sri Adhi Sankara. The income from the endowed properties are to be applied for the support and maintenance and for the use and benefit of ascetics.
(vi) The founder has also provided for succession to the Headship of the institution by laying down certain directions and guidelines in that behalf. He had conferred powers and right of nomination of successor on the ruling head of the matam and also provided for and vested residuary power, in the ruling Madathipathi of Kalaiyarkoil Sellappaswamy Vedantha matam at Kalaiyarkoil in Ramanad district in the event of default or omission or invalidity of any nomination made by the ruling Madathipathi of matam at Veppanacheri.
16. I have perused the Plaint.
17(a).It is a suit for bare injunction restraining the defendant, their men or agents from in any way interfering with the peaceful possession and enjoyment of the suit property.
17(b).The plaint suit property or schedule property consisting of Item 1 and 2, while Item No.1 is a building situated in one acre housing the said Madathipathi of Sri Nataraja matam,Chockalingaswami matam, Vedantha matam. While Item No.2 is consisting of lands in S.No.1 to 21.
17(c). In the written statement, there is a specific plea that in the notice issued by the plaintiff, only 14 items were mentioned. Other items were not mentioned. Further, there is a specific plea by the defendant in the written statement at Paragraph No.8 that Item Nos. 17,18.19,20 and 21 are the private properties of one Sambasia Thevar, by virtue of gift deed. In the private capacity, the same is enjoyed by the defendant as an individual property and the same does not belong to the plaintiff matam. Further, he has obtained Ex.P7-Judgment of the District Munsif Court with regard to O.S.No.46 of 2002, dated 18.02.2003, as per which, the defendant/Madathipathi is having the right to control the plaintiff/matam.
18. While the factual position being so, this Court has considered the rival submissions made by the respective counsels.
19. The sum and substance of the argument advanced by Mr.A.Natarajan, learned Senior Counsel appearing for the appellant is that Ex.A2-Nomination Deed is irrevocable and hence the same cannot be cancelled by Ex.B8. Besides ExB8, Cancellation of Ex.A2, the grievance is that no prior notice was issued and therefore, the same is invalid in the eye of law.
20. The next leg of argument made by the learned Senior Counsel for the appellant is that he has made improvements,redeemed mortgaged properties and maintaining all the three matams in good performance of Annadanams and poojas.
21. This Court has given its anxious consideration for the said contention of the appellant and could not accept the same for more than one reason.
22. Ex.A2 is a nomination and not a Power of Attorney Deed. Madathipathi of Periya matam, Thirumazhapody is entrusted with the Madathipathi post of Plaintiff matam, as he could not perform all the four matams and under Ex.A2, he has nominated Sathu Shanmuga Adigalar as Madathipathi of the Plaintiff matam. Item Nos.1 and 2 of the property are the lands belonging to the matams. And not to the Madathipathi. The Plaintiff was given administration of the said property by nominating him as Madathipathi of the Plaintiff matam and not in the individual capacity, as per Ex.A34 Patta is in the name of the plaintiff pursuant to the patta proceedings of the Thiruthuraipoondi Tahsildar under Ex.P11, dated 20.06.2007.
23. The core issue that was projected by the appellant's counsel is that Ex.A2 is irrevocable as observed earlier, it is not a power deed and the power to nominate the Madathipathi includes an in-built power to cancellation.
23(a).As per the decision of the Honourable Supreme Court in the preceding paragraphs, termination of nomination be for a good cause.The defendant has stated various mal-administration committed by the plaintiff in his individual capacity in converting the Mutt property to the individual name of the plaintiff from the Mutt name to individual name of Madathipathi and also indicate certain other irregularities.
23(b).The suit is filed only for bare injunction restraining the defendants, their men and agents from interferring with the peaceful possession and enjoyment of the suit property. The suit is filed on 9.5.2007. As per Ex.A2-Nomination Deed, Sadhu Shanmuga Adigalar was appointed as Madathipathi of the Plaintiff matam. The same was cancelled under Ex.B8, dated 04.04.2007. The cancellation of the nomination is registered as Document No.65 of 2007 in Book No.4 of 2007, Sub-Registrar Office, Thiruthuraipoondi. The said cancellation has been duly intimated to the plaintiff and no date has been assigned in the plaint. Further, he sent a reply through Advocate on 20.4.2007 and the suit was filed on 9.5.2007. Written statement by the defendant/Periya matam was filed in the month of July 2007.
23(c). The learned Sub Judge(Appellate Court) has taken note of the fact that the suit itself was filed after one month of the termination of the Nomination. Since all the properties belong to matam and not to an individual person or in the individual capacityor person of the plaintiff and hence, on termination, the Plaintiff cannot maintain the suit since his nomination has been terminated by a registered deed and also intimated and the suit having filed after one month the Mutt is vested with the defendant.
24(a).It remains to be stated by P.W.1 in the cross examination that had admitted the schedule of the property both 1 and 2 belongs to the Mutt so also D.W.1. The Plaintiff both in his pleadings as well as in his evidence, had admitted that he is enjoying the property and possession only in the capacity of Madathipathi.
24(b).The only point that is now projected by the appellant/plaintiff is that Ex.B8 is not a valid document in the eye of law. Admittedly, on the date of filing of the suit,Ex.B8 was duly served upon the plaintiff and for the reasons best known, he has not filed any suit for declaration seeking to declare. Ex.B8 is invalid, as it is projected now.
24(c).The Plaintiff is claiming right and possession under Ex.A2, which is duly cancelled under Ex.B8. Since the Plainiff was in possession and enjoyment only in the capacity of Madathipathi and not in his personal capacity. When nomination is cancelled under Ex.B8, without challenging the cancellation of nomination of Madathipathi of the Plaintiff-matam, the relief of permanent injunction in respect of personal capacity is not maintainable. A similar view was taken by the learned Appellate Judge and I do not find any irregularity or illegality in the said finding of the lower appellate Court does not suffer from any illegality or irregularity warranting interference by this Court.
25. Yet another point that was advanced by the learned Senior counsel for the appellant is that “Ex.A2 which is irrevocable, cannot be revoked”. The post of Madathipathi can be revoked for a good cause by the person who has made the appointment or nomination, as the case may be. The power of nomination by itself includes as an inbuilt power of termination, as per the judicial decision and as per the above said decision, it should be for a good cause.
26. In the written statement at Paragraph No.5, a specific stand has been taken as per the original Trust Nomination Deed by Vedanta Mutt, a person from Kovilur Parambarai Yokyamsam person has to be appointed as Madathipathi and the said Trust Deed or Nomination by his Holiness Shanmuga Adigalar is on 5.10.1997. Ex.A4 was not challenged by the plaintiff. Though it is brought to the knowledge of the plaintiff that he does not belong to the Kovilur Parambarai and as per the original deed, he cannot hold the the post of Madathipathi in respect of Vedanta matam. The Plaintiff has not made any challenge to the averments made in the Written statement. His evidence as P.W.1, is totally silent of all these aspects. It remains to be stated that Ex.A4 terms are incorporated in Ex.A2, remains significance, as per HR and CE Assistant Commissioner's report, dated 24.04.2007 ExB9, the HR and CE Department has made proceedings for non-performance of Pooja and Neivadhyams as per Trust Deed and there is no answer by the plaintiff for Ex.B9 and his evidence remains silent. Ex.B15, Ex.B16 and ExB17 are the judgment pronounced by the Sub- Judge,Mannargudi, dated 25.08.2012.
26(a). As I find that though it is a suit for bare injunction whether to ascertain the nature of the possession, whether the act of the plaintiff amounts to any mal- adminstration can be gone into incidentally. Taking note of these allegations made in the written statement and as well as silence on the part of P.W.1 and the scheme of the suit filed before the trial Court namely, bare injunction without declaration of title and recovery of possession and since on the date of filing of the suit, the plaintiff is Sadhu Shanmuga Adigalar Swamingal is not the Madathipathi of the Plaintiff Mutt and all the property being the property of the Mutt and not individual property of the Swamigal and on removal from the post of Madathipathi, he cannot state to be that he is in possession of the property without any authority of Madathipati.
26(b).In the absence of any challenge to the order of termination of nomination of Madathipathi of the plaintiff-Mutt, I am of the considered view that the present scheme of the suit will not come for the rescue of the plaintiff for more than one reason viz., on the date of filing of the suit, the post of Madathipathi has been terminated and it has been duly intimated. The suit is only for the relief of bare injunction to protect the alleged possession, since the suit properties are original properties of matam, is admitted in the pleadings and evidence by P.W.1 and D.W.1 and on the date of filing of the suit, the plaintiff is not in the possession of the property as held by the lower appellate Court and hence the substantial questions of law are answered in negation as against the appellant and held in favour of the defendant.
27(a).The next contention that the “unilateral cancellation of Ex.A2(Nomination Deed) by Ex.B8 without cancellation of Nomination is bad in law” as no opportunity was given to the e appellant before such cancellation. Admittedly, the plaintiff has not challenged ExB8 or seeking any declaration for recovery or recovery of possession and it is only a simple suit for bare injunction. As the original deed the power of nomination to nominate the Madathipathi is with Defendant with residual power of revocation or modification or in the event of default or omission or invalidity or any nomination made by the Defendant Madathipathi is vested with Madathipathi of K
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alaiyarkoil Sellapaswamy Vedantha matam. Hence, any nomination of Defendant as that Ex.A2 is subject to revocation by the above Mutt. 27(b). Hence, on an cumulative reading of power of respective Madapathi, in question, I find the recital in Ex.A2, as irrecoverable will not stand in the way of cancellation. The recital in Ex. A2 nomination deed cannot be read in isolation. However, it has to be read as a whole with the recitals regarding power of Madathipathi of nominating Mutt (Defendant) in conjuncture with recital as stated in original deed of trust and creation of Mutt itself. Thus, on an combined reading of recitals, I find that the right of revocation of nomination is always recoverable contra recital in Ex.A2 runs contradictory to original deed of trust wherein residuary power of revocation for nomination of Defendant is always vest with above said Mutt. Hence, the said contention of the appellant cannot be countenanced. 27(c). The “irrevocable clause” in the subsequent deed of nomination pale into insignificance. Irrevocable clause in the deed of nomination, which runs contrary to the recitals of Mother – nomination deed, prescribing all nomination of deed of Madathipathi are revocable. 28. In view of the above fact that as per the original Trust Formation deed by the founder, any nomination, any appointment and any transaction, if found to be at variance with the intention of the founder as expressed in the Trust deed (Mother deed – Mula Pathiram), they can be 'varied' or 'modified' or 'revoked' by the Kalaiyarkoil Madapathi as 'residual powers' have been vested with him. In view of the specific recital in the mother deed (Mula Pathiram) as to the right of revocation of any order passed by the subsequent Madapathi of this Mutt being vested with the Kalaiyarkoil Mutt, any contra recital by the Madapathi contrary to mother deed pale into insignificance. Thus, the much urged point of right of revocation as irrevocable as recited in the Ex.A2 pale into insignificance as the same runs contrary to the terms recited in the mother document. Though the plaintiff has not challenged the cancellation of nomination in the better interest of the talking the paramount consideration of the administration of the Mutt property as an incidental thereto. The above point has been considered and hence both the substantial questions stand negatived as against the plaintiff. 29. Accordingly, the above Second Appeal stands dismissed. It is open to the plaintiff to take appropriate proceedings for appropriate relief before the proper forum. As such, the post of Madathipathi stand cancelled as per Ex.B8 the defendant matam/Periya matam is only entitled to schedule A and B of the property. No costs. Consequently,connected Miscellaneous Petitions are dismissed.