TMI Blog1999 (2) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... , Erode. On 28.10.1986 the respondents 1 and 2, filed a petition O.P. No. 301 of 1985 under the Indian Trusts Act, 1882 before the District Judge, at Periyar to permit them to sell the lands and Immovable properties including the nine shops by public auction or by negotiations. Obviously the said petition was filed by respondents 1 and 2 as trustees under the trust-deed dated 19.4.1920. The learned District Judge by order dated 28.10.86 dismissed the said petition holding that under the trust deed above mentioned, it was specifically stated that the trust properties should not be sold by the trustees and there was, in any event, no need to sell. Again she said order of the learned District Judge, a revision C.R.P. 334 of 1987 was filed in the Madras High Court but the same was dismissed on 28.11.1988 again on the ground that the sale was prohibited by the trust deed and that circumstances which warrant a sale of the properties did not exist and there was no necessity to sell the properties. Against the said order passed by the learned Single Judge, a review application was filed by the respondent 1 and 2. The said review application was however, allowed by the learned Single Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owments without obtaining sanction under Section 34(1) of the Endowment Act, 1959, He also prayed the Commissioner H.R. C.E. Department to issue directions to the Deputy Commissioner, H.R. C.E., Salem and Assistant Commissioner, H.R. C.E., Salem to get themselves impleaded in I.A. 2292 of 1989 and in the O.P. No. 301 of 1985 before the District Court, Periyar, Erode and stop the auction schedule for 23. 12.89. 4. The Deputy Commissioner, H.R. C.E. then filed an application on 21,12.89 before the District Judge for impleading himself and for stay for auction. No order of stay was passed. The sale was held but confirmation was not made in view of certain other orders obtained by the Commissioner from the High Court in a petition under Article 227 of the Constitution of India. 5. At that stage the Commissioner, H.R. C.E. filed special leave petition in this Court praying for setting aside the judgment of the High Court dated 3.3.89 passed in review application. The same was admitted and registered as C.A. 1930 of 1990. This Hon'ble Court by Judgment dated 10.4.1990 disposed of the said Civil Appeal stating that apart from other considerations, the review petition w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was only a charge on the property. It was stated by the Commissioner that the department was in possession of important documents to show that the properties were absolutely endowed for the purpose of certain religious service in six temples and there were specific endowments and that the department was having actual control over the trust for almost five decades. He stated that the revision petitioners were wanting to withdraw the C.R.P. as well as O.P. only to defeat the ends of justice. If the withdrawal was granted, the department would be put to great difficulties. It was further stated that the Supreme Court ordered the disposal of the C.R.P. on merits and according to law and also dropped certain proceedings taken by the Commissioner against the hereditary trustees and the department had to abide by the order of the Supreme Court and dropped the said proceedings against the hereditary trustees. Having benefited from the order of the Supreme Court, the trustees could not be permitted to withdraw the C.R.P, and the O.P. 8. On these contentions, the High Court passed the impugned order dated 31.12.1991 permitting withdrawal as prayed for both of the C.R.P. as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is without the permission of the District Court. Obviously, the trustees have sold the land as if it was not even trust property, a stand which they had earlier taken in the O.P. 10. In this appeal, we have heard submissions of the learned senior counsel for the appellant Shri R. Sundaravardhan and of the learned senior Counsel for the auction purchasers, Shri S. Siva Subramanium and of the learned Counsel for the hereditary trustees, Shri V. Balachandran. 11. The point for consideration is : whether the order of the High Court permitting withdrawal of the C.R.P. and the O.P. is liable to be interfered with? 12. It will be noticed that in the earlier order dated 28.11.88, the High Court, while dismissing the C.R.P. rejected the contention of the trustees that there was no dedication of the corpus that there was only a charge on the income. The Court referred to Official Trustee, W.B. v. Sachindra [1969]3SCR92 . for the proposition that the District Court had no power to grant permission to the trustees to sell property if such a sale was prohibited by the deed of trust. The High Court rejected the contention of the trustees that there was only a charge in the income and di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the H.R. C.E. Department was being nullified and that in such an event there could be no objection to permit the withdrawal of the CRP and the OP. 15. It is true that in a large number of cases decided by the High Courts, it was held while dealing with applications under Order 23, Rule 1, CPC, that if an appeal was preferred by an unsuccessful plaintiff against the judgment of the trial Court dismissing the suit and if the plaintiff appellant wanted to withdraw not only the appeal but also the suit unconditionally, then such a permission so far as the withdrawal of the suit was concerned, can be granted if there was no question of any adjudication on merits in favour of the defendants by the trial being nullified by such withdrawal. On the other hand, if any such findings by the trial court in favour of the defendant would set nullified, such permission for withdrawal of the suit should not be granted, (See Thakur Singh v.A. Achuta Rao (1977) 2 APLJ 111; Kedar Nath v. Chandra Koran AIR1962All263 ; K Dube v. Harcharan AIR1971All41 ; Charles Samuel v. Board of Trustees [1978] 1 MLJ 243; Lala Chetram v. Krishnamoni (1984)1MLJ28 ; Jubedan Begum v. Sekhawat All Khan; Ram Dhan v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court and in accordance with law . After the Memo for withdrawal was filed, the Commissioner contended, in addition, that he having dropped proceedings against the trustees as directed by the Supreme Court, he was entitled to an adjudication on merits. 18. It is, therefore, clear that this Court by consent of parties wanted an adjudication by the High Court, on the questions whether there was a dedication of the corpus of the property or only a charge on the income, and even if it was so whether there was a specific endowment vested in the Commissioner, HR CE and whether the property could be permitted to be sold when there was a prohibition in the trust deed, whether permission of the District Court under Section 34 of the Trust Act was sufficient and whether permission under Section 34 of the Endowment Act, 1959 was necessary. Further, the Courts have a general 'parens Patriae' jurisdiction over trusts for charitable and religious purposes and a question of public interest was involved because of the contentions raised by the Commissioner, HR CE. 19. Therefore, we are of the view that the High Court should go into the above aspects on merits and in accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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