IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.8.2009
CORAM:
THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MR.JUSTICE S.TAMILVANAN
Writ Appeal No.1698 of 1999
K.Damodaran Appellant
Vs.
1.The Commissioner,
H.R.&C.E. Administration,
Madras-600034.
2.K.Kothandaraman Respondents
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Writ Appeal preferred under Clause 15 of the Letters Patent as against the order of the learned single Judge of this Court dated 22.12.1998 made in W.P.No.13280 of 1990.
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For appellant : Mr.V.Raghavachari
For R.1 : Mr.T.Chandrasekaran, Govt.Advocate for HR&CE
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JUDGMENT
ELIPE DHARMA RAO, J.
The challenge in this Writ Appeal is to the order passed by a learned single Judge of this Court dated 22.12.1998 made in W.P.No.13280 of 1990, whereby the learned single Judge has affirmed the order of appointment of an Executive Officer to the Arulmighu Thirunarayanaswamy Thirukoil, Pudupettai, Thirupattur, by the first respondent.
2. The case of the appellant is that Arulmighu Thirunarayanaswamy Thirukoil, Pudupettai, Thirupattur is a private temple and his father Kanniappa Chettiar was the Managing Trustee of the temple. Originally, one Kanniappa Chettiar, who was the appellants fathers paternal grand fathers elder brother, along with one Muniappa Chettiar, who is also related to the said Kanniappa Chettiar have purchased a site at Pudupet on 19.8.1985 and built a place of worship, wherein Thiru Narayanaswami was worshipped by bhajan and it was known as Thiru Narayanaswami Bhajanai Koil and the same seems to have ruined, but rebuilt later, on a large scale, by the paternal grand father of the appellant on 5.12.1918 and also performed Kumbabhishekam on 11.7.1921. It is seen from the records that the paternal grand father of the appellant and one T.M.Murugappa Chettiar purchased some properties on 17.7.1927, 9.3.1936 and 21.3.1939 and endowed them to the temple.
3. On 19.10.1945, the paternal grand father of the appellant and his three paternal uncles by name Muniswami Chettiar, Ramu Chettiar and Chandrasekara Chettiar along with one Murugappa Chettiar, who is none other than their brother-in-law, have executed a settlement deed in favour of the institution and thus the above said institution is claimed to be the family property of the appellants paternal grand father and his paternal uncles and according to the appellant, third parties have no right to manage or perform any ‘Utsavam’ or ‘Bhajan’ without the permission of the above said families. Pursuant to the above said settlement deed dated 19.10.1945, the grand father of the appellant was appointed as the Managing Trustee and the trusteeship was to devolve on their legal heirs by rule of heredity. It is said that on the death of the junior most paternal uncle of the father of the appellant, the father of the appellant became the Managing Trustee in terms of the Settlement Deed dated 19.10.1945. When the Area Committee of the Hindu Religious and Charitable Endowments Board included this institution as a place of public worship and called for applications for appointment as Trustees, the father of the appellant filed an application before the Deputy Commissioner, Hindu Religious and Charitable Endowments Board, Madras, in O.A.No.35 of 1963 praying to declare them as the hereditary trustees and that the institution was a place of private worship and the prayer in this application was later on amended to declare that the institution was governed by the principle of hereditary trusteeship alone. Since the said application was dismissed by the Deputy Commissioner on 10.5.1971, an appeal was filed before the Commissioner and the Commissioner also dismissed the appeal on 21.2.1972. Therefore, aggrieved, the father of the appellant had filed a suit in O.S.No.77 of 1972 on the file of the Sub Court, Thirupattur and since the said suit was dismissed, an appeal in A.S.No.122 of 1973 was filed before this Court.
4. A learned single Judge of this Court has allowed the said appeal by the judgment dated 16.12.1977. The observations and findings recorded by the learned single Judge in the said A.S.No.122 of 1973, since will have a bearing on the matter on hand, are extracted hereunder:
In the present case, there is no evidence to show that the provisions of Section 47(2) have any manner of application. In these circumstances, the Deputy Commissioner had no jurisdiction to appoint any non-hereditary trustee for the purpose of managing the affairs of the temple. In this view, the plaintiff (P.Kanniappa Chettiar-the father of the present appellant) would be entitled to succeed on the basis that he and the second defendant (T.M.Murugappa Chettiar) should be declared to be hereditary trustees of the suit temple. However, in view of the fact that the second defendant has stated in his written statement that he does not want to be a trustee because of his age and in view of the fact that the same stand has been taken before, the plaintiff would alone have to be declared to be the hereditary trustee in the present case. But, though the second defendant has disclaimed the right to the trusteeship, the trusteeship would have to devolve on the other members of the respective families as set out in Ex.A.5 including that of the second defendant. The circumstances of the present case go to show that there seems to be a rift between the plaintiff and the second defendant and others. In order to see that the institution is managed properly, I think it is necessary to state that the appropriate authority under Tamil Nadu Act 22 of 1959 will take steps for the purpose of framing a scheme for the temple so that the management is regulated in an appropriate manner.”
This finding of the learned single Judge has attained finality, since was not challenged by anybody.
5. While so, by the impugned order dated 9.7.1990, an Executive Officer was appointed to Arulmighu Thirunarayanaswamy Thirukkoil, Pudupettai, Thirupattur Taluk by the first respondent. Challenging the same, W.P.No.13280 of 1990 was filed by the appellant K.Damodaran along with his brother K.Sridharan, to quash the order dated 9.7.1990 passed by the first respondent, appointing the Executive Officer. During the pendency of the writ petition, the Executive Officer had also filed a petition to implead him as a party to the writ petition, but that petition was dismissed. By W.M.P.No.3297 of 1998, one of the legal heirs i.e. the son of one Kandasamy prayed for impleading him as a party-respondent to the writ petition and the said petition having been allowed, the second respondent herein by name K.Kothandaram was brought on record.
6. On the part of the writ petitioners it has been maintained that no enquiry, as contemplated under Section 45 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, was conducted by the Commissioner before passing the impugned order of appointment of the Executive Officer and thus, his action is in excess of his jurisdiction vested under the Act. They have further submitted that since being a hereditary trust and a private temple, on the death of their father Kanniappa Chettiar on 1.7.1990, the appellant has succeeded as the Managing Trustee of the Trust.
7. This argument advanced on the part of the petitioners was refuted by the first respondent/Department by contending that the father of the appellant Mr.Kanniappa Chettiar has informed the Department, by his letter dated 9.2.1990, that due to old age, he was not in a position to manage the administration of the temple property and requested the Department to take over the management of the temple by appointing an Executive Officer. According to the Department, based on the said letter of the father of the appellant, the Department has processed the papers and an Executive officer was appointed by the impugned proceedings dated 9.7.1990 and the Commissioner was not aware of the death of the father of the appellant Mr.Kanniappa Chettiar on 1.7.1990 since nobody has furnished them the information about the death of Mr.Kanniappa Chettiar. It is also stated that the writ petitioners (including the appellant herein) have not requested the Department to recognize them as hereditary trustees of the temple, nor did they inform the department of their assumption of charge as hereditary trustees of the temple. It is also stated that the hereditary trustee was not maintaining the accounts and necessary registers and by the appointment of the Executive Officer, the hereditary trusteeship would not be eliminated and the Executive Officer should function along with the hereditary trustees and there are possibilities of the writ petitioners mismanaging the affairs of the temple and by the appointment of the Executive Officer, the position of the hereditary trustees would not be affected and the Executive Officer would function in addition to the hereditary trustees.
8. During the pendency of this writ petition, the second respondent herein by name P.Kothandaram has filed another writ petition in W.P.No.12142 of 1997 before this Court, as against the Department and some others, including the appellant herein and his brother K.Sridharan, praying for a Writ of Mandamus, to direct the Department to constitute a trust board in respect of Arulmigu Thiru Narayanaswami Temple, Pudupet village, Tirupattur Taluk and appoint an Executive Officer, pursuant to the Scheme framed by the Department on 20.11.1990 in O.A.No.243 of 1987.
9. This writ petition has been disposed of at the stage of admission itself, without any notice to the other private parties impleaded as respondents 3 to 6 in the writ petition, including the appellant and his brother K.Sridharan. The learned single Judge of this Court, while disposing of the above said writ petition, has directed the Department to take appropriate action under the provisions of the Hindu Religious and Charitable Endowments Act and the Rules framed thereunder for constituting the Board of trustees as well as appointing an Executive Officer, if so warranted, under the provisions of the Hindu Religious and Charitable Endowments Act and in terms of the Scheme already framed by the Deputy Commissioner, Hindu Religious and Charitable Endowment, Salem in O.A.No.243 of 1987, within a period of three months. This order also attained finality, since not challenged.
10. Thereupon, while passing orders in the present writ petition No.13280 of 1990, the learned single Judge, has affirmed the action taken on the part of the Department in appointing the Executive Officer to the temple, pursuant to the letter addressed by the deceased father of the appellant. Further, in view of the above order passed by the learned single Judge in W.P.No.12142 of 1997, it has been observed that the management of the temple in question should be carried on only in the light of and in accordance with the direction issued in W.P.No.12142 of 1997. This order passed by the learned single Judge in W.P.No.13280 of 1990, dated 22.12.1998 is under challenge in this writ appeal.
11. The sole contention on the part of the Department, in defence of their action of appointing an Executive Officer, is that only based on the letter addressed by the father of the appellant by name Kanniappa Chettiar to the Department, dated 9.2.1990, stating that due to old age he is unable to manage the administration of the temple property and requesting to appoint an Executive Officer, the Department has processed the papers and by the order dated 9.7.1990, an Executive Officer has been appointed and the death of the said Kanniappa Chettiar, in the meantime, on 1.7.1990, has not been brought to their notice.
12. The straight case of the appellant is that the temple being a private temple, the rule of heredity would only apply and accordingly on the death of his father, he succeeded to the office of the Managing Trustee.
13. In this backdrop, a legal question would arise as to whether the Department is justified in acting on the alleged letter dated 9.2.1990 addressed by the appellants father, to appoint the Executive Officer.
14. A similar question was already considered in the same matter by this Court in A.S.No.122 of 1973, dated 16.12.1977. When another Trustee, the second defendant therein viz. T.M.Murugappa Chettiar has expressed his inability to continue as a trustee because of his old age, it was held in the above said A.S.No.122 of 1973, dated 16.12.1977, that the trusteeship would have to devolve on the other members of the respective families as set out in the settlement deed dated 19.10.1945, which rules the roost, so far as the affairs of the Trust in question are concerned.
15. As could be seen from the records, in para No.6 of the said settlement deed dated 19.10.1945, it is stated that the above said temple belonged only to the families of the authors of the said settlement deed and in paragraph No.7 it is stated that the appellants paternal grand father was the Managing Trustee and that he would be the Managing Trustee during his lifetime and that if he did not want to continue as a Trustee or if the trusteeship falls vacant on account of any other person, then, all the other original five persons or the survivors of them would have to meet and select one amongst the members of the families who had devotion and the interest in the management of the said temple. It has also been categorically held in the said judgment that the trust in question is a hereditary trustee.
16. The observations and findings of this Court in A.S.No.122 of 1973, dated 16.12.1977 having become final, now there is no dispute regarding the fact that the temple is purely a private temple and the trusteeship is by hereditary. Even if it is true that the father of the appellant had addressed a letter to the HR & CE Department that he is not willing to continue as the Trustee and requested the HR & CE Department to take over the temple, the same, itself, cannot be the basis for appointment of the Executive Officer by the Commissioner, since clause No.7 of the Settlement Deed dated 19.10.1945 executed between the Trustees of the temple, has prescribed a procedure to be followed in such event. In clause No.7 of the settlement deed it has been clearly mentioned that the grand father of the appellant to be the managing trustee and that he would be the managing trustee during his lifetime and that if he did not want to continue as a Trustee or if the trusteeship become vacant on account of any other person, then, all the other original five persons or the survivors of them would have to meet and select one amongst the members of the families who had devotion and the interest in the management of the said time. Subsequent to the grand father of the appellant, by the rule of succession and hereditary ship, the father of the appellant became the Managing Trustee and the same condition as in Paragraph 7 of the settlement deed dated 19.10.1945 would apply even to his case. Therefore, even if the father of the appellant was not willing to continue as the Managing Trustee, all the original persons or their survivors have to meet and select one amongst the members of the families who had devotion and the interest in the management of the said temple. Strangely, the Department has not produced the said letter alleged to have been executed by the father of the appellant and therefore, the very execution of the letter by the father of the appellant is under suspicion, since not proved or established by the Department. Even assuming, without admitting that the father of the appellant has addressed the said letter dated 9.2.1990, by the alleged letter dated 9.2.1990, the father of the appellant cannot forsake the interest of all other persons who are his successors-in-interest by the rule of heredity. Therefore, the appointment of the Executive Officer by the Commissioner, only taking into consideration the alleged letter addressed by the father of the appellant, without heeding to the terms and conditions incorporated in the original settlement deed dated 10.10.1945, shall be declared as non-est in law, in view of the earlier findings already arrived at regarding the Trust in various proceedings, unequivocally declaring the same as a hereditary trust and that the institution is governed by the hereditary principle. Therefore, the findings rendered by the learned single Judge in these writ proceedings, holding that the Commissioner is right in appointing the Executive Officer, just based on the alleged letter addressed by Kaniappa Chettiar, cannot sustain and the same need to be reversed.
17. The learned counsel for the appellant has also pressed into service many judgments to impress upon the proposition that before appointing the Executive Officer under Section 45(1) of the T.N.Hindu Religious and Charitable Endowments Act regarding a temple managed by hereditary trustee, notice should be issued to the hereditary trustee to show cause against appointment, vide COMMISSIONER, HR & CE vs. K.JOTHIRAMALINGAM [AIR 1985 MADRAS 341]. He has also pressed into service the judgments for the proposition that law of succession applies to office of hereditary trustee also and hereditary trustee succeeds to office as of right and in accordance with rules governing succession vide CHETTIMAI C.NANJAPPA CHETTIAR vs. S.N.KUPPUSWAMI CHETTIAR AND OTHERS [AIR 1986 MADRAS 41].
18. We are in full agreement with the above propositions of law. In the case on hand, no such notice under Section 45(1) of the Act has been issued to the Trustees by the Department. It is their case that since the Managing Trustee himself has requested to appoint an Executive Officer, no necessity has arisen to issue any notice under Section 45(1). Though, at the outer periphery, this argument advanced on the part of the Department appears to be attractive, factually it is incorrect, in view of the earlier findings rendered by this Court regarding the same issue in A.S.No.122 of 1973, dated 16.12.1977 to which the Department is also a party and further in view of the recitals of the Settlement Deed dated 19.10.1945. Therefore, even on this score, the impugned order passed by the Department suffers, thus rendering it a nullity.
19. Further more, in the impugned order, appointing the Executive Officer, no specific instance of any mismanagement of the Trust by the Trustees has been pointed out by the Department and it seems they have proceeded on the basis of an assumption that there may be mismanagement. The other argument advanced on the part of the Department that the death of the father of the appellant and the taking over of the Managing Trusteeship of the temple by applying the rule of heredity and succession by the appellant, was not intimated to him by anybody. Admittedly, the author of the alleged letter Mr.Kanniappa Chettiar, the father of the appellant died on 1.7.1990 and the impugned order came to be passed on 9.7.1990, i.e. within a short span of eight days. It can be understood that after the death of a member of the Hindu family, it will take some considerable time for the family members to settle things, particularly only after completion of the ceremony, either on 11th day or on 13th day or some times even on 15th day. Therefore, a legal presumption would arise that there was no time or occasion for the appellant and his family members to bring to the notice of the Department, about the death of their father and subsequent events immediately. Therefore, we are not in a position to blame the appellant for not bringing to the notice of the death of their father and the subsequent events to the Department.
20. It is also seen that based on the observations made by the learned single Judge of this Court in the above said A.S.No.122 of 1973, dated 16.12.1977, a draft scheme was issued in Rc.O.A.243/87 B1, dated 20.11.1990 by the Deputy Commissioner of HR&CE, which was confirmed by the proceeding dated 14.1.1992. The terms of this Scheme are extracted hereunder for the sake of easy reference:
“1. The Scheme shall come into force from the date of its publication in the District Gazette of Ambedkar North Arcot District.
2. The temple Arulmighu Narayanaswamy Temple, Pudupet, Thirupattur Taluk, N.A.District with all its properties both movables and immovables which belong to or have been or may hereinafter be given dedicated or endowed thereto shall vest with the aforesaid deity.
3. The administration of the temple and its property shall vest with a Board of Trustees, consisting of the hereditary trustees, as recognized by the High Court of Madras in Appeal No.122/73 and will be the representatives of the families of the original trustees mentioned in the deed of Endowment created by Poova Chettiar on 19.10.1945. If any of the above said families is unwilling represented in the trust Board, the trust board shall consent the representatives of the families willing to be represented.
4. There shall be an executive officer appointed by the Commissioner to assist in administrating the temple and its properties. The powers and responsibilities, as between the hereditary trustees and the executive officer, shall be prescribed by the Commissioner.
5. The hereditary trustees shall elect one among themselves as Chairman Board of trustees, if there are more than one trustees.
6. In all the other respects, the H.R. & C.E. Act provisions and the rules framed thereunder will apply to the administration of this temple and its properties.
21.Though Clause No.3 of this Scheme seems to have fully reflected the intention of the framers of the Settlement deed dated 19.10.1945, applying the rule of hereditary trusteeship of the temple, clause No.4, appears to run counter to the contents of the Settlement deed dated 19.10.1945 since it says that there shall be an executive officer appointed by the Commissioner, to assist in administrating the temple and its properties and the powers and responsibilities as between the hereditary trustees and the executive officer shall be prescribed by the Commissioner. However, since the said Scheme is not under challenge before us, we restrain ourselves from discussing and deciding this aspect. If at all the appellant is aggrieved, he has to initiate necessary proceedings as against the objectionable parts of the Scheme.
For all the above discussions, we have no hesitation to hold that the impugned order passed by the Department, appointing an Executive Officer, simply based on the alleged letter addressed by the father of the appellant that too without following the procedure contemplated under the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959 and without any legal sanctity, is bad and non-est in law. Therefore, this writ appeal deserves to be allowed, setting aside the order of the learned single Judge.
Accordingly, this writ appeal is allowed and the order of the learned single Judge is set aside. No costs.
Rao
To
The Commissioner,
H.R.&C.E. Administration,
Madras 600 034